FRANCISTOWN: Botswana Ash (PTY) Ltd on Wednesday lost with costs an urgent application it launched against its former marketing manager, Tshepo Sedimo.
When delivering the verdict on the matter, Justice Phadi Solomon said that by a motion of notice filed on May 4, 2018, the respondent sought the following orders; that the matter was urgent and that the respondent forthwith surrender motor vehicle registration number B 110 BFI, XC90 to the applicant.
Furthermore, Solomon said: “That a deputy sheriff of this court be authorised to seize the motor vehicle (B 110 BFI) from the respondent with the assistance of the police plus the costs of the suit…”
The matter, Solomon noted, was set down on urgency on May 7, 2018 and the respondent not having been served as yet, a decree nisi (rule or order upon condition that is to become absolute unless cause is shown to the contrary) was issued in terms of the draft order returnable on May 15, 2018.
“On May 15, 2018 when the matter was called, the respondent was legally represented.
“Counsel for the applicant informed the court that he had just received the respondent’s notice to raise points in limine (a process that addresses a technical legal point, which is raised prior to getting into the merits of the case) and that they need time to consult and prayed that the rule nisi be extended to the following day.
“Counsel for the respondent confirmed and the rule nisi was extended as prayed,” Solomon said.
On May 16, 2018, Solomon stated, counsel for the applicant informed the court that the parties are actively involved in trying to come up with a consent order that would protect the interests of both parties.
“The consent order was to be filed before the end of business that day and the rule nisi was extended to May 17, 2018. On May 17, 2018, the parties informed the court that they were unable to reach a settlement. The matter was set down to hear arguments on points in limine on May 30, 2018,” Solomon said.
Solomon noted that the points in limine raised by the respondent were as follows; that the applicant’s affidavit is not an affidavit upon which relief sought ought to be granted because it was defective… and that the matter was not urgent because the applicant failed to adequately disclose and lay out any basis for urgency of the matter.
“Further, the applicant has failed to show how it is unable to obtain whatever relief it sought in the form of damages in due course because the respondent was not a flight risk.
“It was further submitted that there has been no full and honest disclosure of all material facts, especially facts prejudicial to the applicant and the reliefs it seeks. That non-disclosure entitles the respondents to a discharge of the rule nisi,” Solomon said.
She added: “It is the respondent’s submission that the application was brought in bad faith and was aimed at frustrating the respondent and is an abuse of the court process”.
Furthermore, Solomon said: “The applicant in his submissions in opposition to the respondent’s points in limine started with
“The reason given for this application is that the applicant in its founding affidavit has made it clear that after the termination of the respondent’s employment, the respondent ran away with the vehicle claiming time and again that he would return it.
“Further, the applicant has made it abundantly clear that it is liable as guarantor for the vehicle and the longer the vehicle stays with the respondent, the higher the risk that occasioned to it,” she added.
It is the applicant’s further submission that, Solomon noted, proceedings in the normal course would have led to an unfortunate and unjust result that would be prejudicial to the applicant because it does not know the respondent’s financial situation.
“In response to the respondent’s point in limine that the applicant’s affidavit contravened Order 13 Rule 14 of the High Court, it is the applicant’s submission that a company secretary is not one of the people precluded from being a commissioner of oaths to the applicant and that the point in limine should fall away. The applicant has not responded to the other submissions of the respondent, especially the point in limine that the respondent was not given 14 days required under Order 12 Rule 4 (4),” Solomon said.
In addressing the points in limine, Solomon stated that she would start with the point regarding the applicant’s affidavit being improperly sworn to.
“The applicant’s submission is that the company secretary is not one of the people precluded under Order 13 Rule 4 (1). I find that the person before whom the affidavit was sworn to is described in his official capacity as an “admitted attorney at law” and being a company secretary for the applicant, the person was acting for and under the employ of the applicant,” Solomon said.
She added: “This means that the affidavit contravened Order 13 Rule 4 (1) and cannot be used in the application. I further find that although the application was brought in the form of an exparte application (at the request of one party) in that the respondent was not initially served, the provisions of Order 12 Rule 4 (4) were contravened”.
The applicant, Solomon noted, has not given any explanation for this and did not respond to the point in limine regarding to the failure.
“For the reason that the applicant’s affidavit is inadmissible and the applicant failed to give the respondent the required notice, the points in limine relating to these failures are upheld.
“I further find that the applicant has not sufficiently demonstrated that the matter is urgent. I find that the applicant has not shown what prejudice it would suffer in seeking the relief in the form of damages in due course. For the foregoing, the points in limine are upheld with costs against the applicant.
Attorney Mbiganyi Mhizha represented the applicant while Mogale Legal Practice stood for the respondent.