Case No:
CIV/APN/25/81
Media Neutral Citation:
[1981] LSHC 13
Judgment Date:
6 March, 1981
IN THE HIGH COURT OF LESOTHO.
In the Application of :
WESSEL JACOBUS INGRAM Applicant/Petitioner
v
YUNDAR CONSTRUCTION CO. (PTY) LTD. 1st Respondent
M/S ROUGHTON AND PARTNER 2nd Respondent
MINISTER OP WORKS N.O.
DEPARTMENT OF WORKS AND
DEPARTMENT OF ROADS 3rd Respondent
MINISTER OF FINANCE N.O.
(TREASURY DEPARTMENT) 4th Respondent
DR. C.L. CHEN 5th Respondent
STANDARD BANK LIMITED 6th Respondent
BARCLAYS INTERNATIONAL LIMITED 7th Respondent
LESOTHO DEVELOPMENT BANK LIMITED 8th Respondent
RULING.
Made by the Hon. Justice M.P. Mofokeng on
the 6th day of March, 1981.
In this matter ray brother Cotran, C.J, granted a provisional
Order of sequestration to the applicant on the 19th February,
1981. The respondents were to show cause why the provisional
Order shall not be made final on the 19th March, 1981. Leave
was also granted that the return date be anticipated on 24th
hours' notice. A perusal of the Deputy Sherriff's return of
service indicates that all the respondents were served with
the copies of the said order on the 19th February 1981. I
think I must draw attention to further orders made simulteneously
viz, that the said order was to be published in a Government
Gazette and a newspaper (Lesotho Weekly).
On the 2nd day of March 1981 the 1st and 5th respondents
caused to be served with the applicant's attorneys, a
document entitled "Notice of intention to Oppose" the said
application made and granted ex parte to the applicant as
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explained in the proceeding paragraph. The said document at
the same time notified the applicant that the return date
was anticipated for "Wednesday 4th March 1981." On the 4th
day of March a document styled "Notice of set down" was
served at the offices of the applicant's attorneys and also
filed of record. These notices, I may state, were addressed
to the Registrar of this Court and applicant's attorneys only.
The opposing affidavit by the 1st respondent was served on
applicant's attorneys on the morning of the 4th March 1981
and was also filed of record on the said date.
Mr. Lombard on behalf of the applicant took the following
points in limine and submitted that the matter should not be
proceeded with.
(1) There was no annexure "T" referred to in the
opposing affidavit and there was therefore no
resolution as alleged authorising the 1st respondent
to make the affidavit which he purported to do on
behalf of the 5th respondent.
Mr. Beckly replied and said that the annexure referred to was
inadvertently omitted. He proceeded to hand it into Court
but it was not properly stamped. However, Mr. Lombard had
other criticisms levelled against it. These need not be
mentioned here.
(2) Mr. Lombard said that the order specifically
directed that the said order be published and
there was no proof that this had in fact been done.
Mr. Beckly replied that the publication of the order had
nothing to do with the respondents. It may be that it is not
the responsibility of the respondents to see to it that an
order of court is published as ordered. But the publication
of such an order is not necessarily meant for the respondents
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but rather for the whole world to know. It is a public act
by which other interested persons who were not aware of the
recent affairs of the Company should be appraised of such facts.
(3)
Mr. Lombard submitted that the Court will onlyby which other interested persons who were not aware of the
recent affairs of the Company should be appraised of such facts.
hear an application of this nature only if all
interested parties have been notified. If not,
their rights can be affected without their
knowing. The respondents (Other than the 1st and
5th) know that the date on which they must show
cause why the provisional order shall not be made
final is, the 19th March 1981. They are not aware
right now that there are proceedings which might
affect their legal rights.
Mr. Beckly replies simply that the rest of the respondents,
other the 1st and the 5th, are institutions and will therefore
not be prejudiced by the action taken by the 1st and 5th
respondents. There is no intimation, however, from those
respondents to the effect that they will abide the Court's
decision and until they do so this Court cannot presume that to
be the position. They are entitled to be heard until date
fixed by the order of the court has been extented or expired.
(4) Mr. Lombard finally submitted that the opposing
affidavit was only received in the morning of the
hearing. No opportunity was afforded the applicant
to study its contents and prepare himself
properly. Instead the applicant is denied his
most elementary right of replying to the serious
allegations levelled against him in the opposing
affidavit.
Mr. Beckly could not deny that the applicant possessed such
right. All he said was that there was now a dispute of
fact; that applicant had obtained the provisional order by
fraud. If the procedure advocated by Mr. Beckly were correct
in this instant case, then all that the respondent is
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entitled to do, is to make all manner of allegations against
the applicant and ask that because of the serious nature of
the allegations he levelled against the applicant the provisional
order should be discharged. In my view the Court cannot deny
the applicant the right to reply. It is not as though that
were an indulgence. It is a right which the respondents
cannot deny the applicant.
The short-cut which the two respondents wished to take
is hereby halted. The application that the Provisional Order
granted on the 19th February 1981 be discharged is refused
with costs and the Provisional Order as granted by my brother
Cotran C.J. will continue to operate until it is either confirmed
or discharged by an order of Court,
M.P. MOFOKENG
JUDGE.
For Applicant : Mr. Lombard instructed by Messrs S.C. Harley
& Co.
For 1st & 5th Respondents: Mr. Beckly instructed by Messrs
Mohaleroe, Sello & Co.