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Wang and Others v Fengfu (CIV/APN/174B/2009)
IN THE HIGH COURT OF LESOTHO
In the matter between:- CIV/APN/174B/2009
LONG YAN WANG 1ST APPLICANT
LONG YAN XIN 2ND APPLICANT
FAN JIAN MING 3RD APPLICANT
MOORES ROLAND 4TH APPLICANT
LESOTHO STONE ENTERPRISES (PTY) LTD. 5TH APPLICANT
GONG XIN GUAN 6TH APPLICANT
DAVE ZHAI FENGFU RESPONDENT
Delivered by the Honourable Madam Justice Mrs. M. Mahase
On the 11TH December, 2009
Civil Procedure – Interlocutory application filed on urgent basis – Application for postponement of same – Prejudice – Provisions of Rule 8 (18) of the Rules of this court – Exparte Anton Pillar Application – What is – Failure to institute further litigation within stipulated period.
The history of this matter is a rather disturbing one.
Suffice it to mention that on the 29th day of April 2009, the respondent in the interlocutory application obtained orders on exparte urgent basis against the present applicants. The effect of the said orders of the 29th April, 2009 which were 23 in number was to virtually bring to a standstill and or to render inoperative the business of the present applicants.
The said order of the 29th April 2009 had been moved in terms of the provisions of Rule 8(22) of the Rules of this court under what was styled the Anton Pillar application (whatever this means) vide page 55 – 66 of the paginated record.
In the present interlocutory application, the applicants have filed an urgent application dated the 19th October 2009, and that was served upon the respondent on that day at 10.30 a.m. Applicants are seeking orders in the following terms:
Dispensation with the ordinary rules pertaining to the modes and periods of service due to the urgency of this matter.
Dismissing the application in CIV/APN/174/2009 with costs for failure to institute proceedings against the respondents therein within (30) days of the order.
Directing the Registrar of this Honourable Court to release to the applicants all property taken pursuant to an order of this Honourable court granted on the 29th April 2009.
Costs of suit.
Further and/or alternative relief.
The application is opposed.
It is apposite to mention that the applicants and the respondent in both of these applications are shareholders in the 5th applicant/5th respondent.
It is the present applicants’ averment that their business is being prejudiced by the respondent having been granted the prayer which among others was that the property of the 5th applicant be kept in the custody of the Registrar of this court. They aver that due to the terms of that order, they are unable to run the 5th applicant properly. Vide certificate of urgency-page 2.
It is a matter of common cause that in paragraph 21 of the prayers sought in the notice of motion (in the main application) the present respondent had sought an order directing that he is to institute such litigation as he may be advised within thirty (30) days from the date of this order failing which the order will lapse. This order was granted by this court per my brother Justice Monapathi. Vide court minute of the 29/04/2009 which reads in part……………… “ court grants an order in terms of part A
clauses 1-21 and part B clauses 22.1 to
22.6 and is returnable (see 18.2.1) on
11/05/09 and 22.5 being 17/05/09”
It is clear that my brother Justice Monapathi granted an order inter alia in terms of prayer 21 of the notice of motion that prayer reads as follows:-
“Directing that the applicant is to institute
such litigation as he may be advised to
(“the litigation”) within 30 days from the
date of this order, failing which this order
There is no doubt in the mind of this court that the wording of this prayer/order is so unambiguously drafted that one need not interpret it further to get its meaning which is that failure by the applicant who is a beneficiary of the order, so granted, to institute litigation against the respondents within 30 days from the date of the order renders the said order inoperative since it will have lapsed.
It is therefore surprising and untenable for the respondent to say as he does in his opposing affidavit – paragraph 8 thereof, that:
The contents are denied. In so far as I may have
applied for such an order it was never granted and
does not form part of the order that was issued and
which is dated 29th April, 2009. Applicants are put
to the proof thereof.
Indeed, proof of this fact is the Judge’s minutes of the 29th April, 2009. The fact that the order as herein granted by the court at the instance of the respondent has been left out deliberately from the actual order of court lives much to be desired as to the bona fides, seriousness and the business ethics and principles of the respondent. (This is said with respect).
Was respondent serious, genuine or honest when he approached the court as he did and snatched orders whose effect is highly prejudicial to the applicants? It should be highlighted that the respondent is the beneficiary of this strange order and for him to have successfully obtained it – the court which granted such an order must have indeed been positively persuaded by the respondent’s averments advanced on his behalf by his attorney Mr. Buys that the sole reason or purpose for approaching the court as he did was (and I quote what appears on the court minutes/file on the 29th April, 2009);
… “to preserve evidence for purposes of an action to be
instituted by this applicant (now respondent) to
recover dividends as suitable and as a
director unlawfully removed from that
position. See resolution A49 dated 18/02/08
and in terms of provisions of Section 107 of
Companies Act having been removed unlawfully.
Court grants an order in terms of Part A clause
1-21 and part B clauses 22.1 to 22.6 and is
returnable (see 18.2.1) on 11/05/09 and 22.5
being the 17.05.09”
How then if indeed the respondent was honest does he intend to institute an action to recover dividends as suitable and as a director as he had sought to persuade the court, when for no unexplained reasons he did nothing contrary to the order that has been granted at his own request to institute any litigation after he had obtained these highly prejudicial orders on ex parte basis?
What this court finds most disturbing is the fact that the court order herein issued by the respondent’s lawyer is not only misleading but it seeks to hide or conceal the fact that indeed prayer 21 of the respondent’s application was granted.
The intention to mislead the court is made clear by the respondent’s averments as contained in paragraph 8 at page 22 of the paginated record herein filed. There is no indication of whatever nature in the papers herein filed nor from the court minutes that the respondents abandoned this prayer nor that he later opted for this order to be withdrawn. On the papers before this court this prayer and order still stand because it has never been abandoned, withdrawn nor amended. The applicants in the interlocutory application are therefore perfectly justified and are exercising options open to them by asking this court to grant the orders in their notice of motion after the 30 (thirty) days’ period within which the respondent had undertaken under oath to institute proceedings against the applicants in this case has long expired or lapsed.
From the reading of this order, it was asked for and granted on condition that the respondent herein would institute such litigation as he may be advised (to litigation) within 30 days from the date of this order, failing which this order will lapse (my underlining).
Further still, it is not the averment of the respondent that this particular order was granted by error, in which case the respondent should have invoked the provisions of Rule 45 of the Rules of this court in order to have the error or mistake rectified.
This he failed to do. Once after having obtained these prejudicial orders on ex parte basis against the applicants, and in total disregard to the said order/prayer 21, the respondent once more approached this court in CIV/APN/315/2009 in which he sought to place the 5th applicant under judicial management. This the respondent did some five (5) months after he had been granted order 21 and without having instituted any action against the applicants.
It is a matter of common cause that CIV/APN/315/2009 was dismissed with costs by my sister Hlajoane J. correctly so in the attendant circumstance of this case. What the respondent did is not only an abuse of court process. It is a clear indication that he sort the prayers dated the 29th April 2009, so as to incapacitate the business operations of the present applicants, and thereby open a way for the liquidation of the 5th applicant to its and its shareholders detriment.
This abuse of court process and the misleading of this court by and or on behalf of the respondent that this order 21 was never granted are highly questionable.
It is an undisputed fact that the respondent did not file and ask for the granting of these prejudicial prayers/orders against the applicants for no reason. The said reasons have been clearly stated in the respondents founding affidavit of the main application. Same were once more clearly spelt out on behalf of the respondent by his Attorney Mr. Buys on the 29th April 2009 before court – to wit see court minute of that day and paragraph 1.4 of the applicants’ heads of argument.
No heads of argument have been filed on behalf of the respondent. This is of course contrary to the Rules or normal practice of this court. One need hardly mention that the misleading of this court that prayer 21 was never granted by this court, becomes more serious and is a matter of great concern in the light of the fact that it is made under oath.
In the like manner, respondent made the averments in support of the granting of this prayer and others under oath as well. For him to then turn around and mislead this court and the applicants to say that he denies the fact that it was granted and also that it does not form part of the order of the 29th April, 2009 borders on perjury and leaves a lot to be desired.
Respondent further says that he was under no obligation to institute any action against the applicants. This he alleges despite the fact that this particular order worded in this way was sort and granted at his own instance and for that matter, it was obtained ex-parte.
One may then ask, who then in the circumstances of this case, has such an obligation? Surely it was not the applicants. Surely it is among others, totally unacceptable for any party to seek and be granted an order which obliges him, to do something as is the case in this application, for that party to just ignore and deny that he is obligated to carry out the terms of such an order, especially in the prevailing circumstances of this case. This is an abuse of the court process; to say the least.
In conclusion, one must point out that the founding papers in this application were issued, filed as far back as the 19th October 2009. Same were served upon the respondent on the 12th October 2009 at 10.57 – vide page 4 of the paginated record. The notice of motion for this interlocutory application which had been served upon the respondent’s attorneys some six (6) days before the intended date for the hearing of this application is in compliance with the Rules of this court.
However and to the dismay of this court, Mr. Thoso, who according to the court minutes on this file has been appearing before court on behalf of the respondent on numerous occasions since the 29th April, 2009 and long before Mr. Phafane K.C had withdrawn as counsel for the respondent, then applied for a postponement of this already formally set down application on the very day that the application was to be argued.
This, counsel for the respondent did in total disregard of a plethora of authorities and pronouncements by this court and Court of Appeal of Lesotho, to the effect that such a step is not proper or that such a move should be discouraged and or avoided. As has already been alluded to above, the respondent was aware of the date on which this application would be moved which is the 19th October 2009. This he was made aware of by the applicants on the 12th October 2009 when he was served with the notice of motion and the attendant papers.
He subsequently filed a notice of intention to oppose and the opposing affidavit respectively on the 15th and 27th October. Same were respectively served upon the applicants’ attorneys on the 15th and 27th October 2009.
Pleadings herein were closed on the 30th October, 2009 when the applicants issued, filed and served the respondent’s attorney with their replying affidavits. Subsequently the respondent never indicated in anyway to the applicants’ attorneys that he would apply for a postponement of this application on the day that it was scheduled for hearing.
It is a matter of common cause that this application was placed on the uncontested roll of the week beginning the 16th November, 2009 – but that on that day, and because a notice of intention to oppose same had already been filed, the matter was then postponed to the contested roll for it to be argued on the 19th November 2009.
Both counsel for the applicants and the respondent, to wit messrs Sepiriti at the request of Mr.Thoahlane and Thoso for the respondent at the request of Mr. Buys were before court on the 16th November, 2009.
The crux of the matter is that when initially and from the very beginning the applicants issued, filed and served the founding papers of this interlocutory application, they particularly specified and or informed the respondent that the application would be heard or argued on the 19th November, 2009. Therefore, when on the 16th November, 2009 the application was postponed to the 19th November, 2009 and the rule therein extended thereto, this did not come as a surprise to the respondent and its counsel.
Respondent can not and does not allege that he was never informed timeously in the circumstances of this case that this application would be argued on the 19th November, 2009. He has not, nor does he say that he was ambushed by the applicants. He knew as far back as the 12th October, 2009 that the application would be argued on the 19th November 2009.
Mindful of the fact that this application has been filed on an urgent basis, the respondent’s counsel have had more than ample time to come to court to argue the matter. They did not make any necessary arrangements for one of the many counsels who had handled this matter on behalf of the respondent prior to the 19th November instant to come to court prepared to argue the matter.
The argument advanced on behalf of the respondent that:
Counsel had another matter/trial already set down for prosecution on the 19th November, 2009, which argument was not supported by anything, does not hold water. This is more so because no attempt was made at all by Mr. Thoso to explain to this court who that counsel was nor did he explain why Mr. Buys who had initially from the 29th April, 2009 handled this application by preparing/drafting papers and later moved this application could not today come to court to argue the application. Neither did Mr. Thoso inform this court why he could himself not argue the application when he had handled it several times and when he came to court well aware of the fact that applicants had asked in their papers from the very beginning that the matter be enrolled for argument on this date.
In any case, it is the respondent’s counsel’s fault to have double-booked well being aware that this application had been formally allocated the 19th November, 2009 as a date for it to be argued.
They had to brief counsel prior to the date of hearing. This is equally untenable for the simple reason that applicants have made it clear from the very beginning that they would have the application argued on the 19th November, 2009. He (Mr. Thoso) has not also explained to this court why such counsel has to date not been briefed. It is also not his averment that the applicants were duly and formally informed about this fact but that nonetheless and unilaterally they proceeded to have the application argued on this day.
The fact that confirmation that this court was prepared to hear the matter on this day, was made in his absence does not hold water for the reasons already alluded to above. The question is if indeed counsel for the respondent had no knowledge of this fact, why are they now, today before court? The simple answer is that, it is because they were aware from the 12th October, 2009 and were also informed on the 16th November, 2009 when the rule was extended to the 19th November, 2009 that the application would be argued on this day.
The withdrawal of the firm of attorneys of Mr. S. Phafane K.C. dated the 25th August 2009, as attorneys of record for the then respondents/now applicants has no consequence to this belated, unprocedural application of postponement by the respondent, of a matter which was ripe for hearing and which matter had been properly and formally set down for hearing on the 19th November, 2009.
It is not the present respondent’s averment that such a withdrawal of that said firm of attorneys which in any case had represented the present applicants in the main application, and not the respondent in the application in casu had in anyway prejudicially affected the respondent in the interlocutory application.
Indeed, the respondent could not in any way be prejudiced by such a withdrawal since that firm of attorneys was or had not represented him in the main application. On the contrary and in the normal cause of things it was the present applicants who should have been prejudiced by such a withdrawal of their attorneys.
Be that as it may, on the 12th October, 2009 the respondent’s counsel was served with a formal notice of appointment of the present firm of attorneys for the present applicants. This was some 33 days after the notice of withdrawal of the firm of attorneys of the then respondents (now applicants), had been filed and served upon the then applicant’s (now respondent’s) attorneys.
In the absence of any prejudice alleged as having been suffered by the respondent due to such withdrawal from the main application by the then respondents (now applicants) attorney, there is no way in which that withdrawal can have adversely or otherwise affected the respondent in the instant application. Respondent can not therefore rely on such a withdrawal as a reason justifying his belated application of postponement of this application. Such application is not grounded on the good premise.
The respondent has failed to show a good and strong reason for the granting of a postponement of this interlocutory application. This he should have done; moreso because it is trite that the postponement of a matter set down for hearing on a particular day cannot be claimed as of right.
An applicant for such a postponement seeks an indulgence from the court, vide: Centirugo AG V. Firestone S.A. (PTY) LTD. 1969 (3) S.A. 318 (T) and Mc Carthy Retail Ltd V. Shortdistance Carriers CC 2001 (3) S.A. 482 (Sca) at paragraph 28.
N.U.L. and 2 Others V. D.D.P.R,
L. Chaka and 20 Others :- CIV/APN/266/2007
Having made the above observations, this court has come to the conclusion that:-
The respondent has failed to support his application for a postponement of this interlocutory application. The said application is therefore refused.
The application filed herein on behalf of the applicants in this interlocutory application is granted as prayed in the notice of motion.
This court is most dissatisfied by the misconduct of the respondent wherein clearly in the papers filed by his attorney on his behalf an effort has been made to mislead this court in the way that has been explained by the applicants. There is no doubt in the mind of this court that for reasons best known to the respondent and his attorney, it is in correctly stated that prayer 21 was never granted. We now know that it has been granted. This kind of misconduct calls for costs to be awarded against the respondent on attorney and client scale.
Respondent is therefore ordered to pay costs on that scale.
For Application Adv. Thoahlane
For Respondent – Adv. Thoso