Lesotho Public Motor Transport Co. (Pty) Ltd and Another v Registrar of Companies and Another, Lesotho Public Motor Transport Co. (Pty) Ltd and Another v Mohaleroe and Others (CIV/APN/264 OF 2009; CIV/APN/504/09) [2010] LSHC 11 (7 July 2010)

CIV/APN/504/09 IN THE HIGH COURT OF LESOTHO (Commercial Court) In the matter between: LESOTHO PUBLIC MOTOR TRANSPORT CO.(PTY)LTD LESOTHO BUS AND TAXI OWNERS ASSOCIATION 1ST APPLICANT 2ND APPLICANT AND THE REGISTRAR OF COMPANIES THE ATTORNEY GENERAL AND MAKHOABE MOHALEROE PULE MOHALEROE CONSOLIDATED WITH In the matter between 1ST RESPONDENT 2ND RESPONDENT 1ST INTERVENOR 2ND INTERVENOR CIV/APN/264 OF 2009 LESOTHO PUBLIC MOTOR TRANSPORT CO.(PTY)LTD LESOTHO BUS AND TAXI OWNERS ASSOCIATION 1ST APPLICANT 2ND APPLICANT AND MAKHOABE MOHALEROE 1ST RESPONDENT PULE MOHALEROE MALUTI MOTORS LESOTHO (PTY) LTD ‘MAMATABOE LEUTA GANCHI ENTERPRISES t/a FURNITURE WORLD NEW GROUND SUPERMARKET t/a GALAXY SUPERMARKET TARIQ HASSA t/a CELLPHONE SHOP MAITUMELENG SEOANA t/a MT CELLPHONES 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 6TH RESPONDENT 7TH RESPONDENT 8TH RESPONDENT Date of Hearing Date of Judgment : : 28th and 29th June, 2010 7th July 2010 CORAM : MR ACTING JUSTICE J. D. LYONS Counsel: Mr. Maqakachane instructed by A. T. Monyako & Co. for Civ/Apn/264/10 Mr. K. Ndebele instructed by A. T. Monyako & Co. for Civ/Apn/504/09 Mr. A. Chobokoane instructed by K. T. Khauoe & Co. for intervenors inCIV/APN/504/09 Mr. L. A. Molati instructed by K. Mabulu for 1st, 4th to 8th respondent Civ/Apn/264/10 ____________________________________________________________________________ JUDGMENT [1] I previously permitted the intervenors Makhoabe Mohaleroe (Makhoabe) and Pule Mohaleroe (Pule) to intervene. I also consolidated actions Civ/Apn/504/09 and Civ/Apn/264/2010. [2] I granted the applicants orders on the 29th June and reserved my reasons. Herewith are those reasons. [3] I have read counsels’ heads of argument, heard the necessary arguments and read the materials filed. My decision is as follows. Facts. [4] The Lesotho Bus and Taxi Owners Association (the Association) is an incorporated association. It was formed and registered in 1978. [5] In 1979 the Association entered into negotiations with Shell Oil Lesotho Pty ltd (“Shell”) that involved some financing arrangements. Shell, which was to loan money to the Association, preferred to deal with an incorporated and registered company. Thus Lesotho Public Motor Transport Company (‘the Company) was formed in 1979 and the association’s assets and liabilities were transferred to the Company. [6] The Association instructed its lawyers to attend to the requisite legal requirements and associated documentation. It is not necessary to rehearse all of these matters. The salient requirements were that Trustees be appointed by the Association to hold, in trust, the shares in the Company for and on behalf of the Association. The Trustees were not to act as Directors of the Company. The Directors, however, were to be members of the Association. These requirements were established by special resolution of the Association of 13 October 1979. The consequential amendment to Association’s constitution (reflecting the resolution) was filed and registered with the Registrar General on 10 May 1983. The amended constitution required that any Director of the Company not only be a member of the Association but that he or she only be nominated for the post by the Association. [7] The situation regarding the appointment of Directors of the Company was:- The Directors are elected by a vote of the shareholders; i) ii) The shareholders in the company were (was) the Association which beneficially held all the shares per medium of a Trust of which there were 2 Trustees. (iii) A Director had to be a member of the Association; (iv) A Director had to be nominated by the Association. [8] Whilst the above is not set out in the Articles of Association, it was the practical reality. The Association, through its Trustees (who were directed to act in accordance with the constitution of the Association), held the shares. No person, thus, could become a Director without getting “the association vote” – though its Trustee of course. [9] As it transpired, it was decided to incorporate the company with a share capital of R4,000 being 4000 issued shares at R1 each. It was decided to give the initial three directors I share each and the balance of 3997 shares were issued to the Trustees. The Association thus kept faith with the Directors and kept control of the company and, more importantly, its assets. [10] Over time Trustees and Directors came and went. It appears that the bookwork in this area became confused. To clear up the confusion an extra-ordinary general meeting was called on 27 October 2009. [11] As at the 27 October 2009, the Registrar General’s records show Makhoabe Mohaleroe as a Director. He was purportedly appointed on 30 June 2008, the other director is shown to be Pule Mohaleroe. He is Makhoabe’s son. He was purportedly appointed on 26 November 2008. [12] The meeting of 27 October 2009 appointed new Directors. The father and son Mohaleroe were ‘ousted’. [13] The Company sought to register a Form “L” advising of the new directors. The Mohaleroes’ lawyer wrote to the Registrar protesting that their clients were still directors and had been improperly ousted. The Registrar decided on a safety first approach and sat pat. [14] The Company brought action CIV/APN/504/2009 to compel the registration. [15] Both Makhoabe Mohaleroe and Pule Mohaleroe applied to the Court to intervene. It was granted. [16] Makhoabe Mohaleroe and Pule Mohaleroe contend that they have been improperly removed as Directors. They seek to prevent the Registrar from registering the new Directors, at least until they have been heard. [17] They have now been heard. [18] Events have somewhat overtaken matters. Pule now seems content to accept that he is not a Director. In paragraph 5 of Makhoabe Mohaleroe’s affidavit filed 15 June 2010 (page 117 of the record), Makhoabe Mohaleroe deposes that the “4th Respondent (Pule) ceased to be a Director when Guni J. delivered judgement in the interlocutory intervention application in CIV/APN/501/2009”. Her Ladyship’s judgment appears at p 289 – page 295 of the record. Like myself, my learned sister judge questions how Pule managed to be appointed. Her Ladyship was faced with only the “bare and unsupported” allegation. There was no resolution of the company presented in support. Pule appears (at least according to his father) to have accepted this, that is, that he was not properly appointed a director, if at all, because he is unable to present the proper evidence to support his contention. [19] I need not concern myself with Pule. He accepts that my learned sister Judge has taken case of his matter. [20] Makhoabe Mohaleroe’s position is pellucidly clear. He cannot be a director of the Company. He purports to be a director having been appointed on 30 June 2008. I am unable to find any evidence from him of his appointment other than a Form “L” notifying his appointment, and a Form “K” indicating his consent to act as a director. [21] Mr. Monare, a Trustee for the Association and the spokesman for the Company, put before the Court a resolution dated 30 May 2008 that purports to be the resolution appointing Makhoabe Mohaleroe as a director (page 401 of record). Mr. Monare contests the proprietary of the resolution. It is said to be pursuant to Sec. 108 of the Companies Act, yet as Mr. Monare correctly points out, the notice period given and as evidenced in the preamble to the resolution is only one (1) clear day. Notice to members was given on 28 May and the meeting was held on 30 May. Sec. 108 concerns the passing of a special resolution. A special resolution requires special notice pursuant to Sec. 107. That notice is twenty eight (28) days. If such notice is not given, Sec. 107 states that ‘the resolution shall not be effective’ (emphasis added). [22] It must be that Makhoabe Mohaleroe is relying on the special resolution passed on 28 May 2008 that appointed him a director. He cannot do that. By virtue of the lack of the required notice, the resolution has no effect. He has not been properly appointed. [23] Even if I am wrong, he cannot be a director. By virtue of his having a criminal conviction for an offence of dishonesty he is, by operation of S.144(1) (d) of the Companies Act, disqualified from being a Director. [24] Makhoabe Mohaleroe accepts that as at 30 June 2008 and 29 October 2009, he was disqualified from being a director of any company by virtue of the operation of S.144 (1) (d). [25] His efforts to overcome this insurmountable hurdle are breathtaking in their deceptiveness. [26] On 17 February 2010 in CIV/APN/94/2010 he filed a Notice of Motion seeking the following relief: 1. That the applicant be and is hereby declared that he is qualified to act as a director of companies in terms of section 144 (1) (d) of the Companies Act 25 1967. 2. That the applicant be granted further and alternative relief. The motion was stated on its face to be an ex parte application. [27] The Registrar of Companies and the Attorney General were cited as respondents. [28] Despite knowing that the company had a strong objection to such an application (and hence an interest in it), he did not join as a party. He cannot deny that he did not have Notice of the company’s position. The same firm of lawyers (A. T. Monyako & Co.) were his attorney of record on the application CIV/APN/94/2010 (instructing Adv. L. A. Molati) as well as being the attorney of record acting for the company in CIV/APN/504/2009 (instructing Adv. K. Ndebele). I will return to this astonishing conflict of interest later. [29] In his founding affidavit filed 17 February 2010, Makhoabe Mohaleroe deposed as follows:- 2. 3. 1. On or around the year 1986 I was charged per CRIMINAL TRIAL 13 OF 1986 and ultimately convicted for theft by false pretences arising out of the following brief facts:- I was paid by stolen cheques. I had had the cheques deposited in my wife’s bank account under the circumstances, which in the final analysis I ought to have foreseen that the cheques were stolen. Thus I was found guilty as charged on the premise that I benefited out of the proceeds of that money. I served imprisonment from 19th October 1988 to 16th December 1989 at Maseru Central Prison as it was then called. 4. 5. Upon my release from detention in 1989 I was rehabilitated. I joined society 6. 7. again to live as any other normal citizen I operated a shop Manonyane Bus Stop Maseru, then the area was called Bee-Hive. I have been a self employed businessman ever since. I operated several sole proprietorship businesses and have been involved in two companies. I later in life got to learn that when a person had at one point served an imprisonment sentence for theft, he has to apply for leave of court to be director of companies. I learned this as after the decision of the Court of Appeal’s decision Makhoabe Mohaleros vs Lesotho Public Motor Transport Company (Pty) Ltd, C of A (CIV) 06/09 (unreported) was delivered. In that decision the Court of Appeal found me to be the director of the aforementioned company. I also became prone to be involved in litigation bred by commercial disputes that I realized that I ought to have at all material times applied for leave to be a director of companies in terms of section 144 (1) (d) of the companies Act. I apply for condonation for any remissness on my part in the circumstances for I am a lay person who has gone to school only up to a level of Form E which I did way back in 1976. [30] On the strength of this on I March 2010, Her Ladyship Hlajoane J. granted his application as prayed in prayer 1 of the Notice of Motion. No reasons were given. [31] The leave was not expressed as being retroactive, yet counsel for Makhoabe Mohaleroe (Adv Molati) argues that it should be. His argument is without supportive authority. There is no such authority. It is well settled that the grant of such leave is not as be treated as retroactive. (see Ex parte Hemphill 1967 (3) SA 101 at 103). The authority relied upon by counsel for Makhoabe Mohaleroe, (Nusca v Da Ponte and others 1994 (3) SA 251) does not help him. The leave granted to the 1st respondent therein was not expressed to be retroactive at all. It was to operate from the date of the court order. Friedman AJP expressly found that, as a matter of law, a person with a criminal conviction for a crime of dishonesty could not act as a director of a company without the leave of a court first having been obtained (my emphasis). Friedman AJP, after considering the first respondent’s behaviour after the conviction, granted leave for the first respondent to act thereafter as a director of the company. [32] Makhoabe Mohaleroe cannot rely on Hlajoane J’s generous grant of leave to overcome the hurdle be faced. The fact remains that as at the date of his purported appointment and as at the date of his “removal” that he was disqualified as a director. He needed the leave of the court to be ‘first obtained’ before he could validly act as a director (emphasis added). He did not have this. [33] I have considerable difficulty with Makhoabe Mohaleroe material as was filed before Hlajoane J. (see pages 298-303 of the record). [34] In the affidavit of M. Monare filed 24 June 2010 consolidated action CIV/APN/504/2009. Speaking of Makhoabe and Pule Mohaleroe, he deposes as follows:- 15.10. Members of the Applicant company did not disqualify Deponent, but merely recorded his fact of being disqualified. 15.11. 3rd and 4th Respondents were invited to a meeting by the requisitionists since there were no director, and the said letters of invitation calling a meeting was served on them personally at PUMA HOUSE by myself, but having read the said letters they denied attending saying no other person than them could call such a meeting and that that meeting was a bogus meeting. The invitation was not recognizing them as shareholders or directors but merely to hear their side since they purported to be directors. The copy of the said letter is annexed and marked Annexure A13. 15.12. The disqualification of Deponent was by virtue of the Companies Act which says that any person who at any time is convicted of theft is disqualified. It did not matter that he committed crime in 1988. If the courts did not grant him leave to act as a company director he remains disqualified. 15.13. The meeting of the shareholders/members of the Applicant company was held on the 27/10/09 having been requisitioned on the 8th September 2009 per Annexure A13 hereto attached. The Annexure 13 (pages 235 – 236) of the record reads: LESOTHO PUBLIC MOTOR TRANSPORT COMPANY Messrs Makhoabe Mohaleroe and Pule Mohaleroe PUMA house Maseru “WITHOUT PREJUDICE” Dear Sirs, Re: REQUISITIONING OF AN EXTRA-ORDINARY GENERAL MEETING Whereas at all material times you have been holding yourselves out as the Directors of the Company and collecting rentals from the Company’s tenants unlawfully. And whereas you know very well that Mr. Makhoabe has never been appointed by the Trustees of the LBTOA in their capacities as Majority shareholders because he is disqualified by our Companies regulations and the Companies Act because he has been convicted and sentenced for theft with false pretence. And whereas the subsequent purported appointment of Mr. Pule by Mr. Makhoabe was also unlawful and violated our Companies regulations; We strongly feel that the disputed issue be settled by the powers granted to the Company. We therefore requisition you, assuming of course without conceding, that you are directors of the company, in terms of our regulations Article 47 of Articles of the Company, to call on notice an extra-ordinary general meeting within 21 days of receipt of notice hereof in which we intend to discuss and resolve on the following issues: 1. Your disqualification as directors of the Company 2. Your removal from office of directors of the Company 3. Appointment of new directors of the Company 4. Sale of 5 shares to new members of the Company Yours sincerely, _________________________ N. Nkuebe I. Monare (signed) MAJORITY SHAREHOLDERS, LPMT CO TRUSTEES, LBTOA [35] This letter also appears as Annexure B24 to the affidavit of Mr. Monare filed 21 June 2010 in Civ. 264/2010. There is no denial of this by Makhoabe Mohaleroe in his material. [36] On 29 June on hearing (and realizing that the affidavits of M. Monare were filed on 21 and 24 June) I asked both counsel for Makhoabe Mohaleroe (Adv. L. A. Molati and Adv. Chobokoane) if they had instructions that their client wished to present any further evidence. [37] Both counsel informed the Court that they had no such instructions. [38] The reasonable inference must be that Makhoabe Mohaleroe does not deny that he was served with Annexure 13/B24 sometime on or after 8 September 2009 and before 21 days prior to the meeting on 27 October 2009. – that would be on or about 6 October 2009. [39] Annexure 13/B24 informs Makhoabe Mohaleroe of his disqualification by virtue of his Criminal record. Paragraph 2 of the letter of 8 September 2009 could not be clearer. Yet, in paragraph 4.5 of his founding affidavit in CIV/APN/94/2010 be deposes: I later in life got to learn that when a person had at one point served an imprisonment sentence for theft, he has to apply for leave of court to be a director of companies. I learned this as after the decision of the Court of Appeal’s decision Makhoabe Mohaleroe vs Lesotho Public Motor Transport Company (Pty) Ltd, C of A (Civ) 06/09 (unreported) was delivered. In that decision the court of Appeal found me to be the director of the aforementioned company. I also became prone to be involved in litigation bred by commercial disputes that I realized that I ought to have at all material times applied for leave to be a director of companies in terms of section 144 (1) (d) of the companies Act. I apply for condonation for any remissness on my part in the circumstances for I am a lay person who has gone to school only up to a level of FORM E which I did way back in 1976. [40] The Court of Appeal heard C of A 06/09 on 13 October 2009 and its decision was delivered on 23 October 2009. (page 89 of record) [41] I am deeply concerned that he was not being truthful with the court in his affidavit in CIV/APN/94/2010. I think it highly likely that he knew before the decision in C of A 06/09, and even before the hearing of C. of A. 06/09, that he was disqualified from being a director of the company by virtue of his criminal conviction. His clear obligation as an honest, trustworthy rehabilitated man capable of being trusted to be a company director, was to instruct his counsel to inform the Court of Appeal that it had recently been drawn to his attention that he was disqualified from any a director. The closest he comes is in paragraph 15.3 of this affidavit of 15 June 2010 (p 122 record). He i) In my humble submission and in terms of the averments above, the deponent and the so-called directors of 2nd Applicant have no locus standi to disqualify me from the directorship of 2nd Applicant as they have no authority to do so since they are not members of 2nd Applicant. Moreover, I was never called to such a meeting. Even if I could be invited, I would not attend a bogus meeting of people who are not members. In paragraph 3.11.3 of his affidavit of 16 June 2010 (p 322 record) he says:- i) The founding affidavit does not allege in any way at all that the provisions of section 146 of the Companies Act was followed when a resolution was made to remove the 1st respondent as a director. It is submitted that without any lengthy enquiry this application should be dismissed on this ground alone [42] But this is not directly relevant to annexure 13/B24. In the Company’s view he was not a director (being disqualified by law) and no notice was required. What Annexure 13/B24 is is a letter to call a meeting, not notice of a meeting or being called to a meeting. I find it rather telling that he did not take the opportunity to specifically deny the deposition of Mr. Monare that he had been served with the letter of the 8 September. It is even more so when one compares the attitude of Makhoabe Mohaleroe to the meeting as explained in paragraph 15.3 ( Makhoabe Mohaleroe above) with the what Mr. Monare says was his attitude (Makhoabe Mohaleroe’s) when served with the letter. (15.11 Monare above). [43] The Court of Appeal may not have proceeded with the appeal. The appeal focused on his capacity as a director of the company. It was his duty to inform the Court of his disqualification. Even if he is to be believed and he did not find out the legal implications of his criminal conviction until after the judgment of the Court of Appeal (I note Hlajoane J was a member of that court), he has a clear obligation to inform the Court of Appeal now that he does know. The Court may take a certain course with its decision. Instead he touts the Court of Appeal decision as justification of his ‘directorship’. [44] I am also very concerned with the position as submitted to Hlajoane J in Civ. 94/2010. The firm of A. T. Monyako & Co represent Makhoabe Mohaleroe in that action but also represent the Company in Civ. 504/2009. An integral part (perhaps even the foundation stone) of the Company’s position in Civ. 504/2009 is the letter of 8 September 2009 (annexure 13/B24). By reason of Makhoabe Mohaleroe’s attitude when being served with that letter sometime soon after 8 September and prior to 21 days before 27 October 2009, the Company called the extra-ordinary general meeting from which the Form L it seeks to have registered originated. As the attorney for the Company, A. T. Monyako & Co must have known this. A. T. Monyako & Co must have therefore been aware that the Company disputed the assertion that Makhoabe Mohaleroe made, and that Mr. Monare would attest to it. Knowledge by the attorney is knowledge by the client (see Legione v Hateley High Court of Australia (1983) 152 CLR 406). A. T. Monyako & Co should have instructed Adv L. A. Molati to inform Hlajoane J. of this conflicting evidence. The application before Her Ladyship was ex parte. There was a clear duty of full disclosure. But of course Her Ladyship had also been on the Court of Appeal. [45] I also find it strange that Makhoabe Mohaleroe in his founding affidavit in CIV. 94/2010 avoids specific reference to his purported directorship of the Company and specifically the litigation he was involved in with the Company, particularly on the issue of his removal. Of course had he done that Her Ladyship may well have required the Company to be heard. Then his assertion of the later knowledge of his disqualification by law would have been disputed by evidence from Mr. Monare and the game would have been up. Again I stress, this was an ex parte application with an obligation to make full disclosure. He only says in his founding affidavit in CIV 94/2010 at paragraph 5.4 - “I am involved in two private companies which unlike public companies do not have many shareholders”. In the circumstances, this falls pitifully short of anything even remotely resembling full disclosure. [46] As it stands, and with respect, I am not prepared to place any reliance on the leave obtained by Makhoabe Mohaleroe. I am of the view that it was obtained in such dubious circumstance that it would be unsafe to rely upon it. [47] The long and the short of it is that Makhoabe Mohaleroe has no locus standii before this court. [48] He says he is a director who has been wrongly removed. No he wasn’t. He never was a director. He was not effectively appointed and he was disqualified from being a director. He was not “removed” as a director. He never was a director. [49] There is no point in the court considering his “points in limine”. He makes them purportedly in his capacity as a director. That is the whole foundation of his case. But he is not, and was not, a director. He was disqualified and the objective evidence is that he was never effectively and properly appointed. No amount sophistry can alter that. [50] Having disposed of that, I now turn to the resolution of 27 October 2009. [51] The extra-ordinary meeting of 27 October was called for by the two Trustees, Mr. Nkuebe and Mr. Monare (pages 242 -243 of record). They relied on Sec. 99 of the Act. Between them they held far more that one twentieth (1/20) of the paid up capital required by Sec. 99. They also gave the correct notice period of not less than twenty one (21) days. The Trustees, though both holding their shares in trust for the Association, hold them severally – that is each Trustee has a separate and distinct bundle of shares that may be separately disposed of (see Amended Constitution of the Association registered 10 May 1983, clause c (vii) (a) at pages 15 -16 of record). It is reasonable to infer that the 2 Trustees were in attendance at the meeting of 29 October as they had called it. They therefore constituted a quorum pursuant to article 47 of the Company’s Articles of Association (page 47 of record). I am satisfied that the requirements of the Companies Act and the Articles of Association have been sufficiently complied with for the resolution of 27 October 2009 to have effect. The Registrar may now proceed to register the appropriate forms relative to that resolution. [52] Accordingly I grant an order as prayed in CIV/APN/504/09. [53] As for CIV/APN/264/10, it follows that the order there must be granted also. The Company seeks an interdict that the 3rd to 8th respondents not continue to pay rental money to the Mohaleroes. These respondents are tenants of the Company. Makhoabe Mohaleroe admits that he has held himself out as a director to these respondents and had collected the rent from them. That will cease forthwith. The 3rd to 8th respondents (inclusive) shall hereafter pay the rent as nominated by the Company b y its directors as were appointed at the meeting of 27 October 2009. Makhoabe Mohaleroe and Pule Mohaleroe shall fully account to the Company for all rentals received. I see no need for me to comment on that aspect further. [54] I order the costs to be paid as taxed or agreed in both actions as against the 1st and 2nd respondents in CIV/APN/264/2010 and as against the 1st and 2nd respondents and the intervenors in CIV/APN/504/2009. So as to not confuse the taxing master, the 1st – 2nd respondents in CIV/APN/504/2009 are to pay the costs up to 16 December 2009 when the application for intervention as made. The interventors are to pay the applicants’ costs of the action proper after that date. [55] In any ruling of 18 May (re: intervention) I reserved costs. In view of my findings herein, I consider both parties should bear their own costs of the intervention application. [56] That done, there are some matters that I need to mention. [57] The first is the obligation of counsel to the Court of Appeal (and indeed the courts generally). It is the ethical obligation of counsel to immediately inform the Court of anything that was come to their attention after a court has delivered its judgment that, in counsels’ opinion may have affected the courts’ judgment had it been know at the time. [58] Knowledge of Makhoabe Mohaleroe’s criminal conviction is certainly such a matter. Counsel in the appeal (Mr. Chobokoane and Mr. E. T. Potsane) and their respective instructing attorneys’ (Messrs K. T. Khauoe & Co. and Messrs G. G. Nthethe & Co.) should immediately make arrangements with the Registrar of the Court of Appeal to appear at the next sitting (October) to attend to this. The Court of Appeal will deal with it as they see fit. I have had the Registrar send a copy of this judgment to the Court of Appeal, so their Lordships will be expecting counsel and their instructing attorneys. This is most important and has to be attended to urgently. Makhoabe Mohaleroe is touting the Court of Appeal’s decision as justification of his claim to being a director and for his having received the rentals from the other respondents on CIV. 264/2010. The Court of Appeal must be informed of his criminal conviction so as not to compromise the integrity of that Court. [59] It would be remiss of me not to comment on the content of the affidavit material. The affidavits are argumentative and replete with serious allegations that are remarkable for their lack of supportive evidence. Counsel should see that the affiants show some restraint. Allegations of serious misconduct should not be made in affidavit material unless counsel is satisfied that sufficient evidence exists to support it to the degree required. [60] I am concerned about the instructing attorneys and an apparent serious conflict of interest. I find it quite a puzzle that I have directed it (with the material) to the President of the Law Society to work out. [61] Mr. L. A. Molati is instructed by K. Mabulu, attorney (p 313 of record) to act for Makhoabe Mohaleroe and the 4th through 8th respondents in CIV/APN/264/2010. The interests of the 4th through 8th respondents should not have been so closely intertwined with that of Makhoabe Mohaleroe. The 4th – 8th respondents are tenants of the company who are confused as to whom they should pay the rent, either Makhoabe Mohaleroe or some other company representative. Their position in the within dispute was, at very least, to be held at neutral. [62] I am completely confused by the representation of the other parties. [63] Mr. K. Ndebele is instructed by A. T. Monyako & Co. in action Civ/Apn/504/2009 to act for the Company (p3 of record dated 19 November 2009) [64] Mr. A. Chobokoane is instructed by K. T. Khauoe & Co. for the interveners (M. and P. Mohaleroe) on CIV/APN/504/2009. (Notice of Motion to Intervene 16 December 2009) [65] Mr. Monare, on 5 May 2010, stated in the presence of 2 witnesses that he had appointed K. T. Khauoe & Co. (instructing Adv S. I. Maqakachane) to be his lawful attorneys in respect of CIV/APN/264/2010. (p 255 of record). Mr. Monare was the Trustee who on behalf of the company brought the action against Makhoabe Mohaleroe & others. If this is so, then K. T. Khauoe & Co. was initially instructed to act for the Company in CIV/APN/264/2010 but against it in CIV/APN/504/2009. These actions were consolidated. There is a clear conflict. [66] Mr. Monare’s statement is contradicted by another document. At p 255 of the record, dated also 5 May 2010, A. T. Monyako & Co, attorneys, gave notice to the Registrar that Mr. Monyako’s firm were instructing Mr. Maqakachane. [67] A. T. Monyako & Co., though, appear to have had more than a small role in these proceedings. On 17 February 2010 in CIV/APN/94/2010 A. T. Monyako & Co., instructing Mr. L. A. Molati, filed a Notice of Motion on behalf of Makhoabe Mohaleroe seeking a declaration that he was qualified as a director (see above and p 299 or record). [68] If this is so, the Mr. Monyako has committed a gross act of professional misconduct that, in an accountable system, should require him to show cause why he should be allowed to remain on the Roll. Makhoabe Mohaleroe has used the declaration as his weapon to defeat the Company – the very company that Mr. Monyako purportedly instructed Mr. Ndebele and Mr. Maqakachane to represent. If this is so (I emphasise this), then Mr. Monyako is representing the Company in action to have Makhoabe Mohaleroe thrown out, then, at the same time, representing Makhoabe Mohaleroe in a an action designed to defeat the Company’s case. And, as I pointed out above, deliberately doing it behind the Company’s back by making the application ex parte joining the Registrar and Attorney General nominally only to action CIV/APN/94/2010. [69] As I said above, I have serious concerns about the manner in which the declaration from Hlajoane J. was obtained. I have forwarded a copy of this decision to Her Ladyship to deal with it as she sees fit. Counsel and instructing attorney need to understand that their obligation to the Court is paramount and greater than the obligation to the client (see Harley v McDonald (2001) 2 WLR 1749). [70] I have also directed the Registrar to send a copy of this judgment and copies of the record (as noted above) to Mr. Mda, the President of the Law Society. The Law Society is the body to deal with this puzzle. J. D. LYONS ACTING JUDGE