Mohalenyane Phakela

CHINESE national, Shen Yao, wants the High Court to interdict his former business partner Teboho Mothebesoane from accessing their company’s bank accounts.

This comes after Mr Yao had been dragged to court on accusations that he defrauded the duo’s business entity, Meriti Holdings (PTY) Ltd, of M7 million which he transferred from the company’s Post Bank account to one belonging to Teboho Construction held with another local bank on 23 January 2019.

However, on 7 February this year, Mr Yao filed an urgent application through his lawyer, Advocate Qhalehang Letsika, demanding that the court bars Mr Mothebesoane from using the company’s account fearing that he would embezzle funds deposited into the Meriti Holdings account.

“The applicant (Mr Yao) reasonably fears that the second respondent (Mr Mothebesoane) will embezzle the funds (of Meriti Holdings) to the prejudice of the applicant,” part of Adv Letsika’s submission to the court read.

“He (Mr Mothebesoane) is no longer cooperating with the applicant and has made it clear that the profits belong to him. In the process he also claimed that once payments would have been made, he will not account for any monies to the applicant. It follows that the applicant will suffer irreparable harm if he has access to the funds.

“It is common cause that he already has unfettered access to the funds after purporting to remove the applicant as a shareholder and director, and further appropriating to himself the shares of the applicant without legal sanction.”

Mr Yao further wants the court to order the removal of Mr Mothebesoane as a signatory from the company’s two bank accounts held with Post Bank and First National Bank. He also wants Mr Mothebesoane to be interdicted from entering into any agreement on behalf of the company.

“The third and seventh respondent (Post Bank and First National Bank respectively) shall be ordered and directed to remove the signature of the second respondent in relation to the banking accounts of the first respondent (Meriti Holdings) and in that regard act on instructions of Shen Yao.

“The second respondent is prevented from entering into any agreement or purporting to act on behalf of either the applicant or to represent to any person or body that he is entitled to represent the views, affairs, business and management of the first respondent.

“The second respondent is prohibited and interdicted from placing or creating any charge, pledge, option or mortgage on the funds held in business account and he is specifically interdicted from dealing or appropriating for his personal use the funds of the company.”

In his reply affidavits through his lawyers, M S Legal Minds Chambers, Mr Mothebesoane asked the court to dismiss the case as it was intended to cover a fraud which Mr Yao allegedly committed by withdrawing M7 million from their company bank account.

“I aver that it is impossible that the applicant personally signed the founding affidavit in Maseru on 5 February 2019 in the presence of the Commissioner of Oaths as alleged therein. I have good ground that he left Lesotho for China around 19 December 2018 and is still out of the country. It does not comply with section 3 and 4(5) of the Oaths and Declarations Proclamation of 1964. I further make a request to subpoena the applicant to appear in person before the court with his Lesotho and Chinese travelling documents to ascertain where he was at the date of signing and commissioning.

“I admit that I am the sole signatory to the accounts of the applicant. However, I am bewildered that the applicant and counsel with intent to conceal a fraud committed by the applicant, have failed to disclose to the court that there are no funds in the account. The applicant singlehandedly withdrew the funds and I wish to bring to the attention of the court that the time the funds were transferred the applicant was already not a signatory, director or shareholder of the company, thus, had no authority to transfer the funds he is now contesting.

“I am of the view that the applicant is a very dangerous, resourceful and influential person; it is therefore in the best interest of justice not to give him the orders he is seeking as he has proved that he can make miraculous and unauthorised bank transfers with or without being a customer or a reputable member of a banking institution.

“I aver that the applicant has been removed by the Registrar of Companies from the directorship of the company after a resolution. That decision of the registrar has never been challenged; should the applicant wish to do so, it is for him to institute proper review proceedings against the registrar as the repository of power,” Mr Mothebesoane said.

High Court judge Lebohang Molete remanded the case to 10 April 2019.