Standard Lesotho Bank Limited v T.J. Construction (Pty) Ltd and Others (CIV/APN 592 of 2012) [2013] LSHC 60 (14 August 2013)

CIV/APN/592/2012 IN THE HIGH COURT OF LESOTHO In the matter between: STANDARD LESOTHO BANK LIMITED Applicant and T. J. CONSTRUCTION (PTY) LTD THABANG THAKASO THABISO THAKASO ‘MAMOHAU THAKASO ABI LITEBOHO SEROBANYANE T/A ABI SUPPLY AND SERVICES MOEKETSI DENIS TSOEU T/A GOODYEAR TYRES DEPUTY SHERIFF COMMISSIONER OF POLICE COMMISSIONER OF TRANSPORT & TRAFFIC REGISTRAR OF DEEDS REGISTRAR OF COMPANIES ATTORNEY GENERAL NEDBANK LESOTHO LIMITED 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent 7th Respondent 8th Respondent 9th Respondent 10th Respondent 11th Respondent 12th Respondent 13th Respondent FIRST NATIONAL BANK OF LESOTHO LIMITED 14th Respondent Coram: Hon. Hlajoane J Date Heard: 31st May, 2013. Date of Ruling: 14th August, 2013. Points in Limine [1] The Applicant has instituted these proceedings for an Application pendente lite for an interdict securitatem debit usually referred to as mareva injunction. The application was moved ex parte and rule nisi was sought and granted on 20th December, 2012 and made returnable on 7th February, 2013. [2] It has been the Applicant’s case that it had received a complainant from one of its customers, a company known as Nien Hsing International Lesotho (Pty) Ltd, that its funds were being withdrawn from its current account with the Applicant and transferred to 1st and 2nd Respondents accounts respectively. That as a result of such complaint Applicant has thus applied for a interdict against the Respondents in order to secure their assets as he intends to institute an action for the recovery of the said monies. [3] The 1st to the 6th Respondents in their answering affidavit have raised certain points of Law on Urgency, non-compliance with Rule 8(4) of the High Court Rules, Non-Joinder, Juridiction, Perpertual silence and locus standi. [4] On Urgency It has been the Respondents case that the ex parte procedure taken by the Applicant was not justified much as they are no reasons given why they were not afforded notice. They argued that since a rule nisi is a negation of the audi alteram partem rule, applicant ought to have shown that irreparable loss would be suffered, so that issuance on notice would defeat the very purpose for which the rule was issued ex parte, Commander LDF and Another v Matela1 and many more other authorities. [5] Applicant responded by showing that the application is by its very nature ex parte. He has termed the application in his papers a mareva injuction which should be viewed as an extraordinary interim remedy as it restricts the right to deal with assets and showed it is usually granted without notice. 11995 – 99 LAC [6] Applicant referred to the case of Mareva Compania Naviera S. A v International Bulk Carriers2 to show the type of assets that are commonly made the subject of a Mareva Injunction, being land, cash, the contents of bank accounts and shares. [7] There can be no dispute in the fact that the present application involves monies and assets which if notice is given can easily be transferred to other accounts or be dissipated. At para 32 of the founding affidavit Applicant has given out reasons for urgency and as was said on similar facts in the case of Molapo Qhobela and Another v BCP and Another3, the reasons given in the founding affidavit proclaims extreme urgency of the matter and this point is thus found to be without substance. [8] Non Compliance with Rule 8 (4) of the High Court Rules The point here is that the Rule requires that an ex parte application be moved two days after filing with the Court. In casu, the papers were filed on the 18th December, 2012 and application moved on the 20th December, 2012. Looking at the dates given the court realizes that the period was still in order so this point is a non- starter and stands to be dismissed. 2 [1980] 1 ALL ER 213 3 Molapo Qhobela and Another v BCP and Another [9] Non-Joinder The Respondents are saying that the non-joinder of the person alleged to have been defrauded renders the application defective. That Nien Hsing alleged to have been defrauded had not been joined. That the supporting affidavits filed in reply denied them the opportunity to answer them, Amalgamated Engineering Union v Minister of Labour4. [10] In response to that point the Applicant showed that non joinder is merely dilatory in nature and that the Applicant is suing in its own name to pursue its rights for having re-imbursed Nien Hsing. Also that if Nien Hsing were to be joined it would not be proper as Nien is a victim here. He can therefore not be joined as either applicant or Respondent, and the Court would not agree with him more. [11] Misjoinder Respondents are saying that the Applicant has joined 2nd, 3rd and 4th Respondents by mistake as they are simply shareholders and director being sued for acts by the company. That though there are allegations of fraud none of the 1st to 6th Respondents has been remanded for such. 4 1949 (3) S. A [12] The response has been that even if this point could be found to be valid it can only result in the favourable award of costs at the instance of the misjoined party. But again Applicant argued that the involvement of 2nd, 3rd and 4th Respondents has been fully explained in the founding papers. [13] I have read the founding affidavit and indeed there are allegations of the Respondents involvement, see paragraphs 28 to 31. [14] Applicant further argued that the 2nd Respondent is not only a shareholder but also a director. He relied on the cases of Solomon v Solomon & Co5 and Re Darby, Ex Parte Brougham6 to expound on the principle of corporate veil which he said may be pierced in certain circumstances. That being where criminality is alleged as in casu. So that since a company is a fictitious person can only act through natural persons as directors, shareholders, officers, agents or employees of a Company. This point also is without merit and must be dismissed. [15] Jurisdiction The Respondent here argued that this matter being for interdict falls squarely within the Magistrate’s jurisdiction, since it is only 5 [1897] AC 22 6 [1911] 1 KB 95 for interdict, but not for the recovery of any monies. He referred to Rule 18 of Subordinate Court Rules7. But in response, Applicant’s counsel submitted that though this is an interdict, it is not just a simple interdict but subject to limitations imposed by the Subordinate Court Order. That the amounts involved are way beyond the monetary ceiling of the Subordinate Court. Section 18 (1) of the Subordinate Courts Order dealing with Arrests and Interdicts start by saying,“subject to the limits prescribed by this order ……”sections 16 and 17 of the order deal with jurisdictions in respect of persons and causes of action respectively so that it could not be correct to say that Subordinate Court entertains all interdicts including those above Subordinate Court’s jurisdiction. [16] Perpetual Interdict It has been the Respondents’ case that Applicant ha sought an interdict against the whole world in as much as families, spouses and children of the 1st to 6th Respondent are interdicted yet they are not parties to these proceedings. They also consider this as also an interdict against people in business with 1st to 6th Respondent and entities in which the 1st to 6th Respondent have signing powers. 7 Order No.9 of 1988 [17] But the Applicant has shown that this is an extraordinary type of interdict and Applicant has shown that he intends to bring an Application for the recovery of the monies complained about. This can never be termed a perpetual interdict as Applicant has shown he intends to bring an action. [18] Locus Standi in Judicio Respondents are saying Applicant has no locus standi to sue on behalf of the party whose funds are alleged to have been withdrawn and that there is no proof that Applicant did in fact pay Nien Hsing. But the Applicant has shown that it is the Bank suing and not on behalf of Nien Hsing. The Bank reimbursed Nien Hsing and it is the Bank which has suffered the loss. This point is without merit and must fail since the Bank is the one suing. [19] Respondents have not been successful in all the points in limine raised which are dismissed with costs. Parties to come for a date of arguing the merits of this application. A. M. HLAJOANE JUDGE For Applicant: Mr Mpaka For Respondents: Mr Molapo