MM Klaas & CO v Lesotho Highlands Development Authority and Others (CIV/APN/498/03)

Case No: 
CIV/APN/498/03
Media Neutral Citation: 
[2003] LSHC 148
Judgment Date: 
9 December, 2003

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CIV/APN/498/03

IN THE HIGH COURT OF LESOTHO


In the matter between :


M.M. KLAAS & CO. APPLICANT

And

LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY 1STRESPONDENT

DR. LIMPHO LEKENA 2NDRESPONDENT

MAMOLISE NYAPHISI 3rd RESPONDENT

MACHAKA KIKINE 4THRESPONDENT

HEILA VISSER 5THRESPONDENT

LILY-ANN F. PETERS 6THRESPONDENT

NTSIUOA MOHAPELOA 7THRESPONDENT

BERNICE MOERANE 8THRESPONDENT


JUDGMENT


DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI ON THE 9th DECEMBER, 2003


Ex-parte Application for Interdict perdented lite Requirements of an interdict Application for Declaratory Order------— what the Applicant must Satisfy to have such an order granted------------------ Application for attachment of property in terms of the rule 6(1) and (2) High Court Rules Legal Notice No. 9 of 1980.


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[1] BACKGROUND - HISTORY OF THE CASE


The 1st Respondent herein is LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY - [LHDA]. All the other Respondents-[from the 2nd to the 8th] are former employees of LHDA. LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY was established by the LESOTHO HIGHLANDS ORDER 1986. The main objective of the Government of the day, for establishing LHDA was for the construction of dams, tunnels and other infrastructures. The said dams, tunnels and other infrastructures are to be managed and maintained by LHDA together with other infrastructures which facilitate or enhance the performance of its functions in order to achieve its main objectives. LHDA was tasked to carry out the LESOTHO HIGHLANDS WATER PROJECT. It is a very big highlands water project. It is the project of the century in this SOUTHERN AFRICAN region or perhaps the whole world. The project is divided into two phases, i.e. Phase I and Phase II. The project is the result of the agreement between the governments of the KINGDOM OF LESOTHO and the REPUBLIC OF SOUTH AFRICA. After the completion of PHASE I (a) and (b) of the project, the two governments had not yet decided to proceed with the Phase II.


As a result, some of the infrastructures and services which were essential in the construction stage of the project became redundant for the purposes of LHDA, e.g. THE LER1BE TRAUMA UNIT - [LTU] which is part and parcel of MOTEBANG HOSPITAL in the LERIBE district. This MOTEBANG HOSPITAL is owned and operated by the.government of LESOTHO through its Ministry of Health and Social Welfare. LTU was officially handed over, back to the government of LESOTHO by LHDA in March, 2003. It is presently administered by the Ministry of Health and Social Welfare. It would appear that the former employees of LHDA at LTU were also handed over to the Lesotho Government along with that unit which they manned. Therefore the relationship between these former employees and LHDA was terminated. In the Founding Affidavit deposed to by BORENAHABOKHETHE SEKONYELA, they are all described as former employees of LHDA, presently working at MOTEBANG HOSPITAL in the Leribe district. Therefore they must now be the employees of the LESOTHO Government.


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[2]

There were certain categories of terminal benefits which were due to the LHDA employees whose contracts of employment were terminated, in terms of LHDA staff separation policy. There was staff separation when LTU together with the members of staff which manned it, was handed over to the government of LESOTHO.


LHDA refused to pay those of its former employees who were handed over to the LESOTHO Government, some of their terminal benefits in terms of its staff separation policy. As a result of its refusal to pay all of the benefits to which its former employees were entitled, LHDA was sued by those former employees. As appears in paragraph 10 of the Founding Affidavit by BORENAHABOKHE THE SEKONYELA he was instructed, briefed and mandated by MM. KLASS AND CO. to conduct the legal proceedings against the 1st Respondent - LHDA, to claim on behalf of the 2nd up to the 8th Respondents, the payment of the said terminal benefits.


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[3]

The parties were engaged in negotiations which resulted in the out of court settlement being reached. At that stage, some of the LHOA's former employees were no longer represented by M.M. KLASS & CO. According to the deponent of the Founding Affidavit, those former employees -[including the 2nd to the 8th Respondents] had withdrawn their mandates from the Applicant herein. There was yet another lawyer who claimed to be representing some of them. The deponent of the Founding Affidavit accused LHDA of causing confusion by dealing directly with their clients.


[4]

By letter, dated the 10th November, 2003, "ANNEXURE BLT3" attached to the Founding Affidavit, advocate SEKONYELA, advised the Chief Executive of LHDA to make a single cheque for ail ex-employees in his names. The Chief Executive of LHDA declined to act as advised by advocate SEKONYELA. His reasons for so declining are set out in his letter dated 17th November, 2003. One of the reasons is that each of those former employees of LHDA, was to sign an agreement the parties reached before his or her cheque could be handed over to him or her.


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This prompted the applicant herein to move ex-parte this application urgently and obtained the rule NISI in the following terms: IT IS ORDERED THAT


  1. That a Rule Nisi do hereby issue calling upon Respondents to show cause, If any, on 8th DAY OF DECEMBER, 2003 why:-


    1. The ordinary periods of notice shall not be dispensed with due to the urgency of this application.

    2. The First Respondent shall not be interdicted and/or restrained from making any payout of terminal benefits to the 3rd, 4th, 7th , and the 8th Respondents pending the finalization of this Application and pending an action to be instituted by the Applicants for payment of profession fees rendered at the Respondents* special instance.

    3. The terminal benefits of the 2nd ,5th , and 6th Respondents shall not be attached to found jurisdiction of this Honourable Court and pending the finalization of this application and pending legal proceedings being instituted against them.


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    1. It shall not be declared that it is lawful for 1st Respondent to payout any terminal benefits directly to the Applicant as their lawful legal representatives of the 2nd to the 8th

Respondents.

    1. 2nd to 8th Respondents herein shall not be directed to pay the costs hereof on attorney to client scale, provided that the lst Respondent shall pay the costs in the event of opposing this Application.

    2. Applicant shall not be granted such further and/or alternative relief as this Honourable Court may deem fit.


2. That prayers 1(a), (b) and (c) to operate with immediate effect as temporary interdicts.


On the return date, the confirmation of the rule nisi so issued out, was opposed by the 2nd up to the 8th Repondents. The application was heard and dismissed forthwith. I undertook to give reasons for its dismissal later. These are those reasons.


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(5) THE APPLICANTS CASE


The Applicant seeks an interdict pendente lite, DECLARATORY ORDER and ATTACHMENT OF THE PROPERTY OF THE RESPONDENTS TO FOUND JURISDICTION. INTERDICT PENDENTE LITE


There are three essential requirements which the parly seeking an interdict, must fulfill in order that such an extraordinary order is granted.


  1. The Applicant must show that he or she has a clear right to the property claimed.

  2. The Applicant must establish that an injury has actually been committed or that he or she has reasonable apprehension that such injury is likely to be committed.

  3. Furthermore he or she must show that there is no satisfactory remedy available.


The Applicant herein has neither alleged nor proved these requirements. In those circumstances, there are no grounds on which this court can even consider granting this application Therefore this remedy is not available to this applicant.


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The fact that the lawyer wishes to claim collection commission or to get his professional fees for services rendered does not give him any right on the former client's property. Applicant claims that three of the respondents although still employed at LTU as part of MOTEBANG HOSPITAL in LERIBE, LESOTHO, are peregrinus.


The three allegedly reside in the border towns FICKSBURG and CLOCOLAN in ORANGE FREE STATE-REPUBLIC OF SOUTH AFRICA-. In terms of the Subordinate Court Act the defendant may be sued where he or she works. Therefore the three respondents can be sued at the Magistrate's court - LERIBE, LESOTHO. Therefore they are not peregrinus.


Furthermore there is still nothing alleged in the applicant's papers which can stop him to sue the three respondents at FICKSBURG and CLOCOLAN Magistrate's Court. The rest of the respondents are not even alleged to be peregrin us. There is nothing put before this court that warrants granting of the relief sought.


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DECLARATORY ORDER


The Applicant submitted that the withdrawals of the mandate by the respondents, for him to act on their behalf, is malicious, mala fide, and actuated by ulterior motives intended to deprive them of their legal rights, especially their collection commission and professional fees for services rendered. These amounts are not quantified. It is clear that he does not know how much the said commission is and how much the said fees for services rendered are. It is clear that there is no action instituted or likely to be instituted before the attorneys have taxed their costs. There is no allegation nor proof thereof that the specific amount of fees was demanded and the clients failed to pay the amount as demanded. The respondents deny any indebtedness to the applicant in this present proceedings or at all. It is claimed that respondents paid the applicant well over fifteen thousands maloti for writing a couple of letters. This is not denied. Be that as it may


This court does not have to, at its juncture, determine whether or not the applicant is owed any money. That is why it is difficult to grant him the order to attach the clients' property in order to recover the unspecified sums of money allegedly owed to him by them.


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Their indebtedness is the issue which he will have to prove at the trial court if at all he sues the respondents for payment of his fees and commission as he alleges.


The respondents have a right to hire the legal representative of their own choice. The court has no right to impose a particular lawyer on any party. The fact that they have fired the applicant i.e by withdrawing their mandates does not entitle him to be declared their legal representative. Lawyers, to the party who needs their services, are like the washing detergents to the housewife. The housewife chooses the detergent that washes best.


If she finds another detergent that cleans better than her best one she changes to that newly discovered best of the best washing detergents. "If she changes from using "one" to "other", she is free to do so. If she changes from buying the services of ADVOCATE SEKONYELA she is at liberty to do so. This court cannot compel the party to retain the services of any particular lawyer if the party does not want that particular lawyer to work for him or her. I have been given no grounds on which to declare ADVOCATE SEKONYELA the legal representative of the party that has fired him.


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ATTACHMENT OF PROPERTY TO FOUND JURISDICTION The court may on application by an incola grant leave for attachment of property, of a peregrinus, which is in LESOTHO, in order to give the court jurisdiction in an action which the applicant intends to bring against such peregrinus.


The deponent of the Founding Affidavit clearly shows that all the respondents work at MOTEBANG HOSPITAL - LERIBE, here in LESOTHO. All of them therefore can be sued at the Magistrate's court in LERIBE district where they work. The applicant claims that all the respondents are men of straw, earn little amounts of money and therefore cannot afford his fees. Why is he not looking for his legal fees for services rendered from the instructing attorney M.M. KLASS & CO. When he accepted the brief from M.M. KLASS & CO. how was he expecting to be paid? He was engaged to claim the terminal benefits on behalf of the 2nd up to the 8th respondents, according to his averment in the Founding Affidavit not for himself. He has no right to claim attachment of their property.


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There is no need to found jurisdiction the court already has that jurisdiction as defendant can be sued at the place of their work or residence - he has put no grounds before this court to show it that he is unable to sue those respondents if he so wishes at their place of work or residence. It is for these reasons that the application was dismissed.


K.J. GUNI

JUDGE.


FOR APPLICANT : Mrs. M.M. Klass & Co.

Attorneys for Applicants

C/O B. Sekonyela Chambers

2nd floor Carlton Centre

P.O. Box 2619 - MASERU.


FOR RESPONDENTS : Mohaleroe Sello & Co.

Respondents' Attorneys

New Europa.P.O. Box 619

MASERU.


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