Highlands Water Venture v DNC Construction (Pty) Ltd (CIV\APN\123\94; CIV/APN/141/94) [1994] LSCA 175 (1 December 1994)

1 CIV\APN\123\94 CIV/APN/141/94 IN THE HIGH COURT OF LESOTHO In the Application of : H I G H L A N DS WATER VENTURE Applicant vs D. N. C. CONSTRUCTION (PTY) LTD Respondent JUDGMENT Delivered by the Honourable Mr. Justice T. Monapathi on the 1st day of December 1994 Abuse of Ex parfe Application procedure can be serious in some cases. This is one of them. It is on the ground alone that I dismissed the Application with costs. Respondent also attacked the application on the other ground of alleged "serious non- disclosure or misstatement of material facts as would entitle the Court to set aside the interim Court Order." I said I would file my reasons later. The application ended up being a lot more complicated due to the opening of a new file under case number CIV/APN/141/94 which comprised a Notice of Application for leave to oppose, affidavit of service, opposing affidavit (in the case number CIV/APN/123/94) and a certain affidavit of one PITSO MAKHAKHE. When the Applicant appeared before me on the 21st April 1994 it did not insist on an interim order although the rule was extended to the 2nd May 1994. Mr. Redelenhuys submitted that this in itself was highly significant in indicating that there was no urgency at all in the application despite the use of the Form 1 of the First Schedule to the Rules of Court. I accepted as valid the reasoning behind the destruction in the use of the Form 1 in the rules as against the Form J. This fully explains the content of Rule 8 (7) and Rule 8 (8) as being of general application to all applications. I accept further that only qualification (characteristic) is that an urgent matter the Applicant may amend "the rules of the game" without asking prior permission from the Court. That is why certain requirements in the rules are dispensed with. But then the amending of the rules must be justified in order to apply with Rule 8(22). The form 1 is normally addresed to the registrar on the understanding that "there is no party whose rights are adversedly affected. The Applicant had on a form of the First Schedule of the Rules of Court asked for an Order that : 1. A rule nisi be issued returnable on a date to be determined by the Honourable Court calling upon the Respondent to show cause why - (a) The periods of notice prescribed by the Rules of Court shall not be disposed with on account of the urgency of the matter. (b) Respondents purported cancellation of the contract between the parties will not be declared null and void. (c) Respondent shall not pay Applicant the amount of M2,000.00 a day starting from the day Respondent purported to cancel the contract between the parties. (d) Respondent shall not be restrained from engaging Applicants' employees pending the outcome of this Application. (e) Respondent shall not be ordered to release to Applicant personal tools of trade which Applicant used to carry out as per terms of the contract. (f) Respondent shall not be ordered to release to Applicant the certification for work completed as provided by clause 8.2 of the contract of Agreement between the parties. (g) Respondent pay costs only in the event of opposing the Application. (h) Applicant be given further and/or alternative relief. The facts of the dispute were as follows: Following on an agreement between the parties whereby the Applicant would assemble and erect certain ARMC Culverting which the Applicant duly commenced, a misunderstanding occurred. This was caused by the inability or failure on the part of Respondent to measure "in accordance with the attached bill of quantities on the 25th of each month (or such of the interval as may be mutually agreed). Works not approved by the Engineer shall not be measured. This is a re-measure contract. The rent rates given are fixed but the final quantities may vary," as provided for in clause 8.3 of the sub-contract agreement between the parties. This clause Respondent was alleged to have contravened. The Applicant's affidavit outlines the resultant erratic payment by Respondent for the work done by Applicant. It is on the other hand suggested by one BABBU that the Applicant's Mr. Thabang David Molapo (Applicant's Deponent) that Molapo should have himself measured the works done but only to discover that BABBU was himself carrying out the measurements. The measurements did not tally. All in all the parties' mis- understanding seemed to spring from the interpretation or failure to follow the same clause 8.1 of the contract. This matter became very involved as the fifteen paragraphs of founding affidavit of Mr. Molapo do show. Clearly this involves technical matters such as the quality, the testing and treatment of the soil when on and off the site, the time to engage an engineer and all other things that this Court would not resolve an affidavit. But the long and the short of this is that according to the Applicant the matter was precipitated when the parties' contract was terminated by one Pazarani of the Respondent Company. The Applicant avers "that Pazarani had no authority to terminate the contract between the parties. Even if he did, which I deny, the purported cancellation would still be illegal." Furthermore, six of the Applicant's staff ended up being engaged by the Respondent Company without Respondent's consent. Lastly, the Applicant left its tools on the site after the cancellation of the contract. It vacated the site. In the result the Applicant alleged that it was incurring a loss of M2,000.00 a day. The one probability is that the termination was agreed upon and the last certificate paid over to the Applicant. The amount of money in the certificate may hve been unsatisfactory to the Applicant. The other probability is that the Applicant abandoned its employees and his tools but was not ejected. This claim for release of certification probably involves a dispute as to what the exact amount of the certificate is. I did not find that this matters were capable of decision on the papers. The reasons why the Application says it regards the Applicant as urgent are three in number and are as follows: (a) The alleged unilateral purported cancellation of the contract was without reasons. (b) The alleged inticipation of Application by Respondent by engaging Applicant's staff immediately after unilaterally terminating of contract. (c) The presence of Applicants' tools on the site the site where Applicnt was working. I did not find that there was any reason for refusing the Respondent leave to oppose the application on the reading of Rule 6(5). I found that there was nothing inherently wrong or contrary to public policy in an interested party opposing an ex parte application which has come to his notice fortuitously or by informal notice. Mrs Kotelo for Applicant was fair enough to accept that this was only just in the circumstances (see also Schlesinger vs Schlesinger 1979 (4) SA 342 (WLD) Head note). It was submitted by Mr. Redelinhuys that the application was without good reason and unjustiably handled as an ex parte application. One of the common instance where ex parte application proceedings are justifiably employed and where, though other persons and their rights may be affected by the Court Order is where, immediate relief, even though it be temporary in nature, is essential because the danger in delaying or giving notice to the other party may precipitate the very harm that the Applicant is trying to forestall, for example application for an interdict or an arrest suspectus de fuga under common law (see Herbstein and Van Winsen, the Civil Practice of the Superior Courts in South Africa, 3rd Edition 1979 at page 59). Where the rights of other persons are involved notice should wherever possible be given to all such persons who may be affected. If the Court comes to the conclusion that service should first be effected, it may refuse to make any Order on an ex parte application. (See Herbstein and Van Winsen above cited at page 60) The party bringing an application ex parte must set out the circumstances justifying dispensing with all prior notice to the Respondent and why he cannot obtain substantial relief at a hearing in due course. This also means that a proper form of notice shall be used. Any deviation therefrom shall be fully explained and justified. A most comprehensive treatment on the circumstance and the need for use of proper notice of motion is to be found in the judgment of Flemming DJP in Gallaghen vs Norman's Transport 1992 (3) SA 502-504 Service and notice of process is the only way of insuring that the other party is given an opportunity to be heard in accordance with the rule of natural justice commonly known as audi alteram partem. So that any departure from the requirement that no order is to be made against any person without his having been first served must be strictly justified. Hence the need to amply safeguard and carefully scrutinize such intended departure before getting any order. I have found the remarks in Power No vs Bieber and Others 1955 (1) SA 490(N) worthy of adoption. "In conclusion I would like to add a word on the subject of ex parte applications and Counsel's certificate of urgency in relation thereto. I am inclined to suggest that this is a matter which might receive attention of the Bar Councils. Too often in my experience I have found that certificate of urgency are presented when urgency does not exist. The longer I sit on the Bench, the more need I feel to inquire closely into some of the ex parte applications that come before me especially where what is sought is not the protection of assets or other really urgent relief but a definitive order." (My underlining) Earlier in this judgment the three grounds upon which the application is regarded as urgent have been shown. It is interesting to note further what Mr. Molapo states in the affidavit of the 6th May 1994. He says: " The application was very urgent as shown in the application in the application as well as founding affidavit. Notice could not be given on account of Moreover the rule nisi only serves to urgency. expedite matters. There is no interim order which could prejudice the Applicant. I say that the matter is very urgent as my papers show". Most of the prayers sought are such that the Court would not be granted on affidavit for the reasons that : (a) They are discretionary. In which case I would have to be well and truly persuaded. (b) No sufficient basis has been made out the claim being in a form of a claim for damages made out the claim for damages. See 1 (c) (d). (c) I would be an irregular restraint on freedom of others (employees) without notice to them See l(d). (d) No sufficient basis has been made out in l(e) in as much as the Respondent irritating conduct is not spelled out. (e) The claim is unclear and devoid of necessary averments and is clearly disputatious. See l(b) l(c) l(d) and l(e). It becomes clear that the rule nisi is used to expedite matter not because there are no procedures which are more appropriate or there are no other remedies available in due course. It furthermore becomes all too clear that no demonstrable harm has been shown which is being sought to be prevented which could not be prevented by use of ordinary procedures or ventilation by way of action proceedings. I was quite impressed with an illustration in Mr. Redelinhuys submission that : "The stated grounds of urgency was not greater than the urgency for a trade whose debtor does not pay and so jeopardize the creditors cash flow and thus the survival of his business and his credit rating. Nevertheless the law does not allow such trade to bring an ex parte application before counsel for a rule nisi directed at the debtor to show cause why the account should not be paid." I agree. Rule 8 (22) impose two distinct aspects to the question of urgency. These are the question of delay in approaching the Court (the delaying aspect) and in the second place the prospect the probable harm if the relief is not granted immediately (the prejudice aspect). It was submitted that the question of urgency was to be decided on the prejudice aspect which is to be the sole consideration in assessing the validity of an ex parte application. Sometimes one predominate. Sometimes a balance is to be struck. The Courts are inclined at most times to consider the question or irreparable harm and alternative remedies available. Counsels addressed me at length on the other aspects, of the application. The others were non-disclosure of material facts, damages, service of process and anticipation of return date which I decided not to deal with for the purpose of my judgment. On the reasons stated in the preceding paragraphs I have dismissed the application with costs to the Respondent. T. MONAPATHI JUDGE For the Applicant : Mrs V. Kotelo For the Respondent : Mr. Redelenhuys