Kopano Textiles (PTY) Ltd & Ano. V Ebenezer Asala (CCA/008/2024ND) [2025] LSHC 249 (24 March 2025)

# Kopano Textiles (PTY) Ltd & Ano. V Ebenezer Asala (CCA/008/2024ND) [2025] LSHC 249 (24 March 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/249/eng@2025-03-24) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/249/eng@2025-03-24) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2025/249/eng@2025-03-24) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2025/249/eng@2025-03-24) [ __](mailto:?subject=Take a look at this document from LesLII: Kopano Textiles \(PTY\) Ltd & Ano. 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V Ebenezer Asala (CCA/008/2024ND) [2025] LSHC 249 (24 March 2025) Copy Media Neutral Citation [2025] LSHC 249 Copy Hearing date 27 February 2025 Court [High Court](/judgments/LSHC/) Court registry [Commercial Division](/judgments/LSHC/LSHC-commercial-division/) Case number CCA/008/2024ND Judges [Dr. Shale J](/judgments/all/?judges=Dr.%20Shale%20J) Judgment date 24 March 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) * [Actions and applications](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure-actions-and-applications) Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **(NORTHERN DIVISION)** **HELD AT LERIBE CCA/008/2024ND** **In the matter between:** **KOPANO TEXTILES (PTY) LTD 1 ST APPLICANT** **KUEI FEI TU 2 ND APPLICANT** **AND** **EBENEZER ASALA T/A SPOTLESS DRY CLEAN RESPONDENT** Neutral citation: Kopano Textiles & Another v Ebenezer Asala t/a Spotless Dry Clean [2024] CCA/008/24ND LSHC 75 (24th March 2025) **CORAM: DR I. SHALE J** **HEARD : 27 th February 2025** **DELIVERED: 24 th March 2025** **_SUMMARY_** **_Civil Practice:_**_HCCLR 22 - Application for attachment to found jurisdiction – HCCLR 66 – multiple points in limine dismissed – requirements of HCCLR 22 satisfied and property attached_ **ANNOTATIONS:** **_Cited Cases_** [_Makoala v Makoala (C of A (CIV) 4 of 9) [2009] LSCA 3 (9 April 2009)_](https://lesotholii.org/akn/ls/judgment/lsca/2009/3/eng@2009-04-09) _Central Bank of Lesotho v. Phoofolo 1985 – 1989 LAC 253 at 258J – 259B_ ## _SARS v Mashilo Obrien Moloto_ and _Others (63778/2021)[[2022] ZAGPPHC 832](/akn/za-gp/judgment/zagpphc/2022/832); [2023] 1 All SA 607 (GP); 85 SATC 470; (2 November 2022)_ [_Lesotho Revenue Authority and Others v Olympic Off Sales (C of A (CIV) 13 of 2006) [2006] LSCA 17 (20 October 2006)_](https://lesotholii.org/akn/ls/judgment/lsca/2006/17/eng@2006-10-20) _Leen v First National Bank (Pty) Ltd (C of A (CIV) 16 of 2026) [2016] lsca 27 (28 October 2016)_ [_Lemeke v Sefali (CCT/0468/2021) [2022] LSHC 165 (30 November 2022)_](https://lesotholii.org/akn/ls/judgment/lshc/2022/165/eng@2022-11-30) _Lesotho Dairy Products (Pty) Ltd v Lesotho National Dairy Board_ [2022] LSHC _Michael Steel Engineering (Pty) Ltd v Selemela Construction (Pty) Ltd C of A (CIV) 31_ _Nts’eliseng Motloli T/A Motloli Catering v LSP/WBHO Joint Venture CCA/0025/2020_ _Maphike v Pierre-Yves Sachet (C of A (CIV) 4 of 2019)[[2019] LSCA 35](/akn/ls/judgment/lsca/2019/35)_ (1 November 2019) _Liboti v Liboti (C of A (CIV) 66 of 2019)[[2020] LSCA 1](/akn/ls/judgment/lsca/2020/1) (29 May 2020_ **_JUDGEMENT_** **_INTRODUCTION AND BACKGROUND_** [1] First Applicant and Respondent entered into a sublease agreement in terms of which Applicant sublet to Respondent, certain commercial property situated in Maputsoe, which Applicant had sublet from LNDC. This was an agreement for a period of five years. However, such was not registered, as required by the Deeds Registry Act 1967. The agreement collapsed as for one reason or another Respondent could not commence business. From 2019 to 2025 when this matter was heard, no rentals were paid, yet Respondent remained in occupation of the property. A lot happened between the parties but for current purposes what is important is that Applicant ultimately decided to institute action proceedings for payment of rentals amongst others. It is on the basis of such contemplated action that the current application was lodged. [2] The application was filed on 12th September and moved on 16th September 2024 on an urgent and _ex parte_ basis seeking the following orders:- 1. This application be treated in terms of rule 22 and 73 of the High Court Civil Litigation Rules as an **Ex-Parte** application. 2. That the modes and periods of service be dispensed with on account of urgency of this matter. A 3. _Rule Nisi_ be issued and made returnable on a date and time to be determined by this Honourable Court calling upon the Respondents to show cause, if any, why the following shall be made final. 1. The property belonging to **Respondent** currently held at plot **23233-009/32** being: 1. Two dehydration machines; 2. Nine washing machines; 3. Twelve tumble dryers; 4. Two boilers be placed under attachment forthwith pending the conclusion of an action to be filed before the honourable court to found jurisdiction of the honourable court in the matter. * The deputy sheriff place the property in (a) above under lock and key at the premises at plot **23233-009/32** pending finalization of the contemplated action. * That the **Applicant** file action proceedings with 10 days of the attachment being made by the sheriff. * The **Respondent** be served by way of edictal citation on the Public Eye Newspaper that circulates in both Lesotho and South Africa in this application and in the action to be filed. Such citation to be done for two consecutive weeks. 4. Prayer 1,2(a),(b),(c) and (d) operate with immediate effect as interim relief. 5. Any further or alternative relief. 6. Costs of suit in the event of opposition hereof. [3] On 16th September 2024 Applicant’s counsel, Advocate Makara MM, appeared before my sister Mokhoro J and a _rule nisi_ in terms of prayers **1,2, 3(a),(b),(c)** and **(d)** was granted and made returnable on 25th October 2024. On this day, the rule was extended and Advocate Makara stated that they have since been in contact with Respondent and therefore personal service shall be possible. Pleadings were filed and the matter was allocated to me and set down for hearing on 19th February 2025. However, due to Respondent’s counsel’s commitments, it could not proceed and parties requested that it be moved to 27th February 2025. [4] Before responding to the merits of the application, Respondent raised four _points in limine_ being: 1. 1. 1. that the deponent to the founding affidavit was not authorized to do so since no resolution was filed to that effect. 2. that second Applicant has no locus as he is not asking for any remedy against the Respondent 3. that applicant did not approach the court with clean hands since the sublease agreement on which the application is based was a nullity due to non-registration 4. non-joinder of the LNDC [5] Before responding to the answering affidavit and the points raised, Applicants also raised a point in terms of which they sought that the Respondent’s affidavit be struck off for failure to comply with the High Court Civil Litigation Rule 66 in that it did not have the full names and addresses of the Commissioner of Oaths. [6] At the hearing, the parties agreed to adopt a holistic approach by addressing all the six _points in limine_ and the merits all at once and for the court to determine all of them at the same time. **APPLICANTS’ CASE** [7] The Applicants’ case is that the _points in limine_ raised by the Respondent are of no effect and ought to be dismissed. With regard to non-joinder of the LNDC, applicant’s case is that the LNDC ought not be joined in the current proceedings as it has no substantial interest. Advocate Makara relied on the Court of Appeal decision in _Makoala v Makoala_ which, he argues, states that for the court to determine whether a party ought to have been joined, it needs to look at the papers founding the action and see if there are any remedies sought against such a party. He argued that in casu, the notice of motion clearly states the relief sought; being attachment of Respondent’s property to found jurisdiction of the court and such has nothing to do with the LNDC. [8] Addressing the point that they have approached the court with unclean hands, the Applicants’ case is that this point is based on the unregistered sub-lease agreement. Applicant concedes that the sub-lease agreement was unregistered and therefore gives the parties no rights and obligations. However, it is denied that such stains Applicants’ hands but rather that it denies the Respondent the right to claim peaceful occupation, hence the prayer for eviction in the main trial. Applicants’ stance remains that they are not seeking to enforce the unregistered sub-lease agreement but rather to seek intervention of the court to restore _status qou ante._ According to Applicants, this application is aimed at founding jurisdiction of this court upon the Respondent who is a _peregrinus_ to enable it to determine the eviction proceedings and also protect the rights of the Applicants, both of whom are _incolae._ [9] Applicants’ case with regard to the point that Chen Lun Hung does not have authority to depose to the founding affidavit as he is just a manager and not a director of the fist Applicant is that Chen has not instituted proceedings but deposed to an affidavit, which in para 1.2 states that he has been authorised by the directors of the first Applicant to so depose. It is argued on behalf of Applicants the Court of Appeal in _Phoofolo v Central Bank of Lesotho_ has clarified the issue by stating that as long as long as it has been stated in the affidavit that relevant authority has been obtained, then that suffices. [10] Raising a point on the basis on which they seek striking off of the Respondent’s founding affidavit, Applicants argue that the 2024 HCCLR are very clear as to what an affidavit must contain. Amongst others, with the view of ensuring that a document before court is truly deposed to before a commissioner of oaths, it must _inter alia_ show the full names and addresses of the commissioner of oaths. They argue that failure to do so, renders the affidavit a nullity, especially in the light of the fact that the Respondent has not made an application for the court to condone such and to allow filing of fresh and properly commissioned affidavit. [11] On the merits, the Applicants’ case is that the elements for an application of attachment to found jurisdiction as set out in HCCLR 22 have been satisfied. The first element is that the Applicant must have a _prima facie_ case which Applicant argues, is satisfied by the fact that they have lodged the main trial to evict Respondent from the site in question and to claim damages and the fact that the sublease agreement between the parties collapsed at the very early stage without having taken off. [12] Applicants argue further that the other requirements are also satisfied in that the Respondent is a citizen of Ghana and a sole trader, under the name “Spotless Dry Cleaning and therefore a peregrinus. The first Applicant is a company duly registered under the laws of Lesotho and the second Applicant is a permanent citizen of Lesotho and therefore both satisfying the requirement that an applicant must be an _incola_. With regard to the last element that the property must belong to the peregrine Respondent, Applicants have attached and rely on the sale agreement in terms of which at the beginning of their relationship Applicant sold the property in question to the Respondent. **RESPONDENT’S CASE** **[13]** The Respondent’s case on the merits is that the current application is an abuse of court process and therefore ought to be dismissed because Applicant has not fulfilled the requirements set out in the case of _SARS v Mashilo Obrien Moloto_ and _Others (63778/2021)[[2022] ZAGPPHC 832](/akn/za-gp/judgment/zagpphc/2022/832); [2023] 1 All SA 607 (GP); 85 SATC 470; (2 November 2022)_, being that the application must serve justice; convenience; that there must be a prima facie case against the Respondent; that the assets may be removed and lastly that it must be extremely difficult to recover what the Respondent owes. He argues that by the Applicant’s own say so, the boilers would take at least three months to remove, which shows that it is impossible for the Respondent to remove the said boilers behind the Applicant’s back. [14] On the _points in limine_ , the Respondent argues that the Founding Affidavit is defective because there is no accompanying resolution by the company authorizing the deponent to depose thereto. Respondent relies on the cases of _Phoofolo v Central Bank_ and [_Lesotho Revenue Authority and Others v Olympic Off Sales (C of A (CIV) 13 of 2006) [2006] LSCA 17 (20 October 2006)_](https://lesotholii.org/akn/ls/judgment/lsca/2006/17/eng@2006-10-20)_._ Regarding his own answering affidavit which does not contain the full names and addresses of the Commissioner of Oaths, Respondent concedes that this does not comply with HCCLR 66. However, relying on the case of _Lin v FNB Lesotho_ , he argues that the court should not allow too much formalism to dilute the real issue before court as there is no prejudice that Applicants would suffer. He argues that making a formal application for condonation would be to burden the court as it has a discretion whether or not to accept the affidavit in its current form. [15] Respondent also raised a point of non-joinder. He argues that Applicants ought to have joined LNDC in the proceedings because its interest is illustrated by _inter alia_ that its authorization was needed before first Applicant could sublease the property to Respondent and also that it had to commission moving of the boiler as it is a semi-permanent fixture in the building. [16] The Respondent’s counsel advocate Molati further argued that Respondent would be amenable to the attachment if the property would be attached at a different location, chosen by Respondent to enable him to begin trading while the main claim is assessed so that should Applicant be successful, Respondent would have made money with which to pay the judgment debt. He also conceded that because the sublease agreement is null and void due to its non-registration, Respodent is not entitled to occupation of the premises in question although this is not a case for this Court at the current stage. **ISSUES FOR DETERMINATION** [17] From the pleadings filed of record and oral submissions made by the parties’ representatives, I am of the opinion that the following issues fall for determination by this Court: 1. 1. Non-joinder of LNDC; 2. Whether non-registration of a sublease agreement estops Applicant from bringing the application; 3. Whether absence of a company resolution to institute proceedings disqualifies the Manager from deposing to an affidavit; 4. Whether failure to provide full names and addresses of a Commissioner of oaths renders the Answering Affidavit so defective that it ought to be struck out and 5. Whether Applicant has, on the merits made out a case for attachment to found jurisdiction. **_ANALYSIS_** [18] Before analysing these points, I must express that the practice of raising multiple _points in limine_ in civil proceedings even when unnecessary, has adversely affected the efficiency of our justice system. It does not only impose significant financial burden upon litigants but also contributes to delays in the delivery of judgements. Despite its condemnation by the Court of Appeal in cases such as _Makoala v Makoala_ , the practice continues. As will be seen in the analysis of each point below, the arguments presented in this case suggest that the parties were seeking an expedient path to success, meticulously examining every detail, not with the intention of resolving the dispute, but with an attempt to identify a procedural avenue to circumvent addressing the substantive issues of the case and having the other party summarily excluded from further proceedings. This court therefore, strongly disapproves this practice as it undermines the fair administration of justice, and urges legal practitioners to refrain from engaging in procedural maneuvering aimed at evading the substantive merits of the case. **Non-Joinder of the LNDC** [19] The Respondent argues that the Court should dismiss this application due to Applicant’s failure to join the LNDC in this matter. He links the LNDC in that it is the main sublessor, whose authority had to be sought prior to signing of the sublease agreement between First Applicant and Respondent. He argues further that the LNDC was engaged in a process to remove the boilers; which never took place, and therefore has an interest in this case. Before delving into the validity or otherwise of this point, it is important to first heed the advice of the Court of Appeal in the case of _Makoala v Makoala_ against upholding of a point of non-joinder without ascertaining whether a party has a direct and substantial interest in the matter before Court. [20] As far as the current proceedings are concerned, the Respondent does not show the interest which LNDC has or the prejudice it will suffer if the property in question is placed under attachment to found jurisdiction of this Court on the Respondent who is a peregrinus. The Notice of Motion filed by the Applicants sufficiently states the orders they are seeking in terms of HCCLR 22 against the Respondent and none against the LNDC. As this Court stated in _Lemeke v Sefali,_ where the plaintiff has sufficiently detailed necessary facts to support his or her claim against the defendants, then the case cannot be dismissed on the ground of non-joinder. I am therefore not convinced that the LNDC ought to have been a party in these proceedings as there are no orders sough against it or those which will affect it. Hence, I am persuaded by the Applicants’ argument that although the proprietor of a building in which the property is, the LNDC does not have a substantial interest because its sublease agreement with the First Applicant is not affected by the order sought, that is attachment of the Respondent’s property to found jurisdiction. As a result, this point fails. **Approaching the Court with dirty hands** [21] Respondent has also raised a point that Applicant has approached the Court on the basis of an unlawful sublease agreement and therefore is estopped from enforcing any rights flowing therefrom. I must note that the parties herein are _ad idem_ that the sublease agreement which they entered into ought to have been registered and that failure to so register it renders it _null and void_. Applicants’ case in this regard is that they are not seeking to enforce the unregistered sub-lease agreement but rather to seek intervention of the court through the main case to evict Respondent from the premises net because of the unlawful sublease agreement. [22] I must state that the unlawfulness or otherwise of the sublease agreement is not important for the current case. The Respondent does not deny that this case is a HCCLR 22 case seeking attachment of property to found jurisdiction on a peregrinus. The case therefore is not based on the sublease agreement between the parties but whether Applicant has a _prima facie_ case, whether Respondent is a peregrinus and Applicant an _incola_ and whether the property in question belongs to the Respondent. None of these elements could be proven or disputed on the basis of the lawfulness or otherwise of a sublease agreement. In any event, Respondent has failed to illustrate why he would be entitled to remain in the premises on the basis of an unlawful sublease agreement although it is not for this Court to determine that factor at this stage. This point is also dismissed. **Whether absence of a company resolution to institute proceedings disqualifies the Manager from deposing to an affidavit** [23] Another point raised by the Respondent is that a company resolution to institute proceedings and to authorise the manager to depose to an affidavit is not attached to the founding affidavit and this renders the affidavit fatally defective. [24] In Lesotho, the authority of a director to initiate legal proceedings on behalf of a company typically requires a formal resolution from the board of directors. However, there are instances where the absence of such a written resolution does not necessarily invalidate the proceedings, especially if the director's authority remains unchallenged. For example, in the case of _Lesotho Dairy Products (Pty) Ltd v Lesotho National Dairy Board_ [[2022] LSHC 167](/akn/ls/judgment/lshc/2022/167), the court examined the validity of a board resolution authorizing legal action. The court emphasized the importance of proper procedures in convening board meetings and issuing resolutions. Failure to adhere to these procedures, such as not inviting all directors to the meeting, was deemed a fatal omission, rendering the resolution invalid. [25] Conversely, if a director initiates legal proceedings without a formal resolution but asserts their authority through an affidavit, and no evidence is presented to dispute this authority, the court may accept the director's standing to sue on behalf of the company. The absence of a written resolution does not automatically nullify the action if the director's authority is uncontested. In _casu,_ Respondent has merely stated that there is no company resolution but has not placed any facts before this court which suggest that the company has not authorized the second respondent to sue and also authorized the company manager to depose to the affidavit. [26] Therefore, while it is advisable to obtain a formal board resolution to avoid potential challenges, the lack of such a resolution does not inherently invalidate legal proceedings initiated by a director, provided their authority is not disputed. In dismissing this point, I align myself with the words of Mosito P in the case of _Michael Steel Engineering (Pty) Ltd v Selemela Construction (Pty) Ltd C of A (CIV) 31_ at para 6 where he cited the case of _Central Bank of Lesotho v. Phoofolo 1985 – 1989 LAC 253 at 258J – 259B_ and said: _It is trite that there is no invariable rule which requires a juristic person to file a formal resolution, manifesting the authority of a particular person to represent it in any legal proceedings if the existence of such authority appears from other facts. Indeed, a copy of the resolution of a company authorising the bringing of an application need not always be annexed._ **Failure to comply with HCCLR 66** [27] Applicants have also raised a point that the Respondent’s Answering Affidavit ought to be struck out for failure to comply with HCCLR 66(2). Their contention is that the Affidavit is defective because it does not contain full names and addresses of the Commissioner of Oaths as demanded by the Rule. While there is no need to quote the Rule as both parties are agreeable that it requires such, it is apposite to quote HCCLR 66(3) which states what should happen when the requirement is not met. It states: _Where the court is of the opinion that an affidavit contravenes the Oaths and Declarations Regulations, 1964, it may dismiss the application or its opposition or order that proper affidavits be filed._ [28] It is clear from the reading of Rule 66 that its main aim is to ensure that the Oaths and Declarations Regulations on the basic structure of an affidavit are followed. Regulations 4 and 5 of the Oaths and Declarations Regulations, 1964 outline the form of oaths and affirmations as well as the duties of a Commissioner of Oaths when an oath or affirmation is done before him or her. Regulation 5 states that after the deponent has sworn and signed, the Commissioner of Oaths shall: 1. 1. 1. 1. _certify below the deponent’s signature or mark that the deponent has acknowledged that he knows and understands the contents of the affidavit; and_ 2. _thereafter set forth, in writing, the manner, place and date of attestation of the affidavit; and_ 3. _sign the affidavit by affixing his usual signature in his own handwriting over his designation and shall state below his designation, the area in respect of which he holds his appointment …_ [29] The Regulations also contain a schedule in which all the above are illustrated. The Respondent’s Affidavit has followed that form to the letter. I must mention that this is the form of attestation which has been used prior to the HCCLR 2024. However, the HCCLR 2024, with the aim of ensuring that not every person who claims to be a Commissioner of Oaths signs affidavits, added that the addresses and full names, not just a signature as the Regulations say, should be added. This rationale is very clear. I must pause here to say that, HCCLR 2(1) states that: _The purpose and overriding objective of these rules is to enable_ _Judges to manage cases and facilitate the resolution of the real issues indispute justly, speedily, efficiently and cost effectively as far as practicable._ [30] On this basis, I also invoke the power in HCCLR 2(4)(b) which state that the court shall seek to give effect to the objects by “ _i_ _nterpreting any other rule of procedure or practice di-____rection applicable in a purposive manner.”_ With the aim of achieving finality in this matter, failure to provide addresses of the Commissioner of Oaths is condoned as all other requirements of Rule 66 are complied with and there is no evidence of prejudice to the Applicant placed before this Court. Consequently, this point is dismissed and the Respondent’s Affidavit is accepted to have been duly commissioned as it complies with Regulation 5 of the Oaths and Declarations Regulations 1964. I therefore turn to decide the merits of the application. [31] This is a HCCLR 22 application in terms of which the Applicant seeks that the property belonging to the Respondent, be attached in order to found jurisdiction of this Court over him so as to determine the application in **CCA/008/2024ND** The objectives for this kind of applications have been laid out in a number of cases as to _“making the the judgment which may be made against the [peregrinus] effective_.” See _Nts’eliseng Motloli T/A Motloli Catering v LSP/WBHO Joint Venture CCA/0025/2020;_ See also [32] For an application under this Rule to be successful,: _T_ _he applicant shall satisfy the court:_ 1. 1. 1. 1. _that he has a prima facie cause of action against the pere-grinus;_ 2. _that the property sought to be attached is the property of_ ___the peregrinus or that the peregrinus has some right in_ ___the property;___ 3. _that the applicant himself is an incola and that the respondent is a peregrinus; and_ 4. _the applicant may in the same application apply for leave to serve the Respondent by edictal citation._ [33] I have decided to start with the requirements which are not in dispute. In paragraph 1 of the Founding Affidavit, the First Applicant’s general manager has described the First Applicant as a company duly registered in Lesotho and the Second Applicant as a permanent resident of the Kingdom of Lesotho, with a Lesotho Identity Card and therefore both _incolae._ In addressing this paragraph, the Respondent has not denied same. In the same paragraph, the Respondent is described as a citizen of Ghana by the names of Ebenezer Asala who operates as a sole trader under the names Spotless Dry Clean, stays in Ficksburg South Africa and therefore a _peregrinus._ These facts are confirmed by the Respondent who only adds that he also has another residence in Maputsoe. It is safe therefore to conclude that there is no dispute regarding requirement (c) that an Applicant must be an _incola_ and the Respondent a _peregrinus_. __ [34] The requirement in HCCLR 22(b) is that “the property sought to be attached is the property of the peregrinus… .” See _Maphike v Pierre-Yves Sachet (C of A (CIV) 4 of 2019)[[2019] LSCA 35](/akn/ls/judgment/lsca/2019/35)_ (1 November 2019) In this regard, the Applicant has annexed to the affidavit, an agreement termed “Machinery Purchase Agreement” between Grace Tu and Spotless Dry Cleaners. The agreement is to the effect that the said Grace, sold machinery being washing machines, tumble dryers and two boilers to Spotless Dry Cleaners, this the Applicants testify in para 3.2 of the Founding Affidavit, is the same property which is the subject of attachment in _casu_ and the agreement is proof that the said property belong the Respondent who is a peregrinus. In response to this averment, the Respondent does not deny ownership of this property safe to say that this is not the only property he owns another dry clean in Hlotse and he was in the process or had arranged with LNDC to go and operate at other premises in Maseru. As far as ownership of the property in question is concerned, there is no dispute and therefore requirement (b) is also met. [35] As far as application to serve through edictal citation is concerned, I must reiterate that this is no longer an issue because Applicants came back to court to report that they have had contact with Respondent and therefore managed physical personal service. [36] The most crucial and only requirement is requirement (a) that Applicants shall satisfy the court that they have _“a prima facie cause of action against the pere-grinus;”_ The term “prima facie” has been interpreted by this Court and the Court of Appeal to mean "at first sight" or "on the face of it". It indicates a claim or evidence that is sufficient to support a conclusion unless and until it is rebutted by contrary evidence. See _Liboti v Liboti (C of A (CIV) 66 of 2019)[[2020] LSCA 1](/akn/ls/judgment/lsca/2020/1) (29 May 2020) at para 16_. [37] To establish a _prima facie_ cause of action against a _peregrinus_ , the Applicants must demonstrate to the court that: * **The claim has merit:** There is a plausible legal basis for the lawsuit, and the Applicant has evidence to support their claim. * **The Respondent is liable:** The Applicant must show that the peregrinus Respondent has some connection to the matter and that his actions or omissions caused harm to the Applicants. See _Maphike’s case_ (supra) at para 40 in which the case was dismissed because Applicant failed to prove that the Respondent was liable for the claim in question. [38] Without deciding whether indeed the Respondent owes the amounts in question, it is important to note that the Applicants have stated in para 3.3 of their Founding Affidavit that Respondent is indebted to them in various amounts for storage fees and damages all of which flow from his occupation of the premises in question outside a valid sublease agreement. In response to this paragraph, Respondent merely says “I will meet the trial proceedings in the future with a counter claim...” This clearly shows that whether or not the claim is correct, atleast there is a case for the Respondent to answer and he is also ready to answer such. This then suffices to conclude that requirement (a) that there must be a _prima facie_ cause of action is met. **CONCLUSION** [39] Having dismissed all the points _in limine_ and assessing the merits so as to determine whether the requirements of HCCLR 22 have been met, I am convinced that Applicants have met all the requirements in that they have a prima facie case against the Respondent, they property sought to be attached belongs to the Respondent and that the Applicants are _incolae_ while the Respondent is a peregrinus. Therefore, for this court to ensure that its orders are not rendered empty due to absence of the respondent if he decides to leave the country, his property shall be attached. **ORDER** [39] In the result, the following order is made: * The Application succeeds * The property belonging to Respondent**** currently held at plot **23233-009/32** being: 1. Two dehydration machines; 2. Nine washing machines; 3. Twelve tumble dryers; 4. Two boilers Are hereby placed under attachment forthwith pending the conclusion of an action in **CCA/008/2024ND** to found jurisdiction of this court in the matter. * The deputy sheriff is hereby ordered to place the property above, under lock and key at the premises at plot **23233-009/32** pending finalization of **CCA/008/2024ND**. * No order as to costs. **_________________** **Dr. I. Shale J** **Judge of the High Court** #### __Related documents ▲ To the top >