HIGH COURT OF LESOTHO
ADAMS 1st APPLICANT
HARDWARE 2nd APPLICANT
MESSENGER OF THE SUBORDINATE
by the Honourable Mr. Justice T. Monapathi on the 25th day of October
the anticipated return date.
application had been moved ex parte on Sunday the 27th October, 2000
before Mofolo J. An interim Court Order was granted on that day to
the effect that the Respondent herein be interdicted from evicting
and/or harassing the Applicants and all persons responsible to them
from occupying premises situated at plot 36-37 (also known as plot
no. 13283/232). And also that a warrant of apprehension against "a
person or persons of particulars unknown of Bus Stop Hardware and
Furniture issued on 20th October 2000 by the Subordinate Court,
Maseru" be set aside. The Respondent has been the person ordered
to execute the warrant for
LTD who had been Plaintiff and where First Applicant had been
said that the reasons for wanting to interdict the Respondent who was
a mere messenger of Court was that there had previously been a Court
Order which was in the nature of an interdict. The order thereto was
attached to the proceedings as annexure "D".
it to understand the present proceedings this Court was told of a
long chain of events. I wished it was helpful. There had been a
certain application which was launched by MJM (PTY) Ltd against the
Commissioner of Police and the Attorney General. Orders were granted
to the effect of interdicting the members of Lesotho Mounted Police
from interfering in any manner whatsoever with the ejectment of
respondents by the messengers of the Maseru Magistrates' Court
pursuant to the judgment in CC 402/97 in the premises in plot no.
13283-232 Cathedral Area in Maseru Urban Area. The second paragraph
said the Commissioner of Police was to ensure that Messenger of Court
carried out the judicial execution of the said Order. There was also
an order for costs.
response to the above application as Mr. Seamatha contended the
proceedings in annexure "D" were launched. Application
CIV/APN/192/2000 had been launched despite the fact that MJM (Pty)
Ltd was well aware of the existence of an earlier application. It was
aware of CIV/APN/327/1998 whose effect was that MJM (Pty) Ltd was
allowed occupation of the property.
Seamatha spoke of a Paragraph 5 of the Court Order delivered on the
17th December 1998 and by the full bench. This was conditional upon
the prosecution of an appeal by either the Applicant or Bus Stop
has never been prosecuted. Paragraph 5 thereof says: Order of
ejectment in which First Respondent (MJM Pty Ltd) obtained judgment
against Mairoon Adams in the Magistrate's Court is suspended with
immediate effect. The rule nisi which Peete J issued on the 7th
August 1998 in case number CIV/APN/327/98 was stayed pending the
outcome of the appeal against the discharge of the said rule
pronounced by Peete J in the same matter.
that at that time there was in the back round of all things an
intended appeal against the order of Peete J. This appeal was proved
not to have been filed at all. Instead then the other related appeal
matter: see also RETSELISITSOE KHOMO MOKHUTLE NO v MJM (PTY) LTD,
MESSENGER OF MAGISTRATES COURT, REGISTRAR OF DEEDS, ATTORNEY GENERAL
AND MAMALIA TSEPE C of A (CIV) 30/98 Friedman J (13 October 2000)
where at page 4 the learned Judge of Appeal said:
"Applicant states that he entered into a lease of property with
Adams which was renewed from time to time. When Bus Stop, of which
Adams is a director, was incorporated appellant let a portion of the
property to Bus Stop in terms of an oral agreement. Bus Stop and
Adams both applied for orders interdicting First Respondent from
ejecting them. Their applications were unsuccessful."
learned Judge of Appeal goes further to say at page 5 of the said
judgment about the Appellant.
"Until the estate is wound up after appointment of an executor
and until he receives dominium in the property, an heir has no
control over it. Applicant accordingly had no interest in protecting
the alleged right of occupation of either Adams or Bus Stop which he
had purported to grant to them prior to his appointment as executor
and at the time when, as heir, dominium in the property had not yet
to him. It follows that the appeal must fail." (My underlining)
Respondents (including MJM (Pty) Ltd) won the appeal against the
Appellant who purportedly granted the Applicant rights of occupation
Mr. Seamatha would have been wise to have conceded to say that the
Applicant would for all intents and purposes be without a judgment,
strictly speaking. I say this most advisedly knowing that the Court
of Appeal in C of A (CIV) No 15/00 RETSELISITSOE KHOMO MOKHUTLE NO v
MJM (PTY) LTD AND FOUR OTHERS by Friedman J on the 13th October 2000
held for the Appellant against a judgment of the High Court which had
upheld MJM (Pty) Ltd's exception. The Applicant's lessor (if not the
estate) therefore remained a substantial claim before the High Court
presumably intended, in effect, to disturb MJM (Pty) Ltd's lessors'
rights. Mr. Seamatha went on however to stress that his client
therefore had a kind of judgment in his favour that was annexure "D".
annexure "D" the orders were set out as follows for
clarity. It was that:
Respondent is interdicted from ejecting the Applicant Bus Stop
Hardware (Pty) Ltd and all persons through the aforementioned
occupying the premises situated at plot 36-37 (also known as plot
number 13283-232) Cathedral, Pitso Ground Maseru by virtue of
Warrant of Execution issued under case no. CC 424/97.
warrant of apprehension against Farouk Farouk on 30th May by the
Subordinate Court, Maseru is set aside."
the sole Respondent was the Messenger of Magistrate's Court of
Maseru. I was not able to understand why Mr. Seamatha replied to say
that the Messenger Respondent was a party strictly speaking. And
furthermore why said the messenger would be said to be having any
interest at all except that of an agent of the person who issues out
a warrant, a writ or process of Court. Surely he does not dispute or
anything. He executes a warrant which in the opinion of Davis Jin R v
HUGHES 1940 CPD:
"............ the messenger had no option but to obey it, and he
was consequendy in the execution of his duty when he was doing so."
His interest is his duty and nothing else. I did not see why there
could be a relationship between the acts of the Messenger who was now
acting in order to execute, and the fact that the full bench decided
in favour of the Applicant who has not prosecuted his appeal for over
two years. This was no good answer to whether correctly speaking a
messenger such as the Respondent was a party when he was not
disputing a substantial right and in the absence of a true litigant
or respondent. He was not a party in the absence of a substantial
respondent. In the event that he conducted himself irregularly, as
Mr. Seamatha submitted, he ought to be cited with the judgment
creditor because correctly speaking a messenger of Court is never a
sole party to any proceedings. There was therefore an obvious
strangeness in annexure "D".
Seamatha emphasized that the additional reason for Applicant to sue
Messenger of Court was this existence of a prior judgment (rule nisi)
attached as Annexure "C" in CIV/APN/192/2000 granted by
Mofolo J on the 5th day of June 2000. The Order was similar to that
of Guni J (annexure "D") of the 4th July 2000 except that
in the latter the setting aside of warrant of apprehension against
Farouk (see annexure "F") was sought "pending its
review". That was said to be "the judgment" the
Applicant spoke about in annexure "D" which confirmed
annexure "C". It was against those orders which Mr.
Seamatha said there had been no appeal by the Respondent herein nor
that was there any reference about them in the Court of Appeal when
the two judgment referred to earlier were being considered. He
submitted that the ruling therefore stood as precedent in favour of
I did not
see how these orders (in annexure "C" and "D")
which were strictly interlocutory could have been treated in anyway
better than what they were. That they ought to be entered as pending
a substantial decision in the Court of Appeal or elsewhere. This was
much more so even as they appear to be permanent interdicts which
they ought not to be. In any event this Court was never told of the
end of the intended review nor appeals to which they had relevance.
If there was no such review one can easily speak of chicanery,
trickery or fraud on the part of the person who procured the orders
well knowing that they were intended to have the effect they should
not have in strict law.
I did not
see why after the Court of Appeal decision any of matters that were
applications of an interlocutory nature could be said to have
survived. If they had fallen off as they did it made sense that MJM
)Pty) Ltd would want to execute and issue a warrant as it had done in
terms of case number CC 424/97.
to see if there were any substantial reasons that pointed to anything
that was wrong with the warrant of ejectment (re-issue) dated the
19th October 2000 - see annexure "B". If what make the
warrant of ejectment irregular is the fact that it:
"........is abundantly clear from the aforesaid orders issued
under case no. CIV/APN/192/2000 that the Respondent is prohibited by
the Honourable Court to ejectment" then it cannot be so with
those writs which were issued after the date of the order.
cannot be a permanent interdict against a messenger when the judgment
which is being executed is not under scrutiny nor is being
questioned. Hence the question as to what was fate of the review that
annexure "C" speaks about as pending review. It should have
resulted some comment in annexure "D"
Seamatha spoke of wanting to re-enforce it by means of the instant
application. This submission by Applicant means that every other
re-issue of the writ CC 424/97 could find itself frustrated by
annexure "D" or such like order if the reasoning is valid
in law. But it is not.
the Applicant to explain the anomaly that a warrant of the
Magistrate's Court was being challenged in what could neither by
transfer, nor by appeal, nor by review nor by any kind of an
application for a declaration. Indeed that is the question (of
jurisdiction) that should have been asked by the issuers of annexure
"C" and "D". Perhaps a charge can be made that
the effect of a different opinion or reasoning by this Court would be
a review of some kind of the decisions of the Courts who made the
order in annexure "C" or "D". Why does Counsel
expect that this Court should agree with the findings when wrong
parties was cited and real parties not cited. The response by
Applicant's Counsel was that the warrant was null and void on the
face of it hence the entitlement of the Applicant to have sought its
interdiction. I did not agree, with respect.
never was a good answer to the question why the warrant even if it
was bad it could not be challenged before the Magistrate's Court
where it emanated. I would repeat that I was not shown the
proceedings for review which were said to be the condition for the
filing of the interdict in annexure "D". Nor were the
proceedings of the Magistrate's Court transferred to this Court. This
was the question that the Courts who issued annexure "C"
and annexure "D" should have asked.
the Magistrate who issued the warrant at the time, the Clerk of Court
and not excluding the Respondent who had a real interest (MJM (Pty)
Ltd) should have been cited in this proceedings "to show cause"
as it were. This was
so when these parties have several times in the past been before the
judges of the High Court. In particular before the application for
orders in annexure "C" and "D". On none of those
occasions have there been this serious act of non-joinder .
together with the need to have stated the substantial cause and
reason for challenging the proceedings before this Court not before
the Magistrates Court except if the proceedings came by way of the
permitted procedures. It was stated in reply that the warrant was
vague and embarrassing and could not be enforced. I did not find that
this was the case nor the reason stated in any of the ten paragraphs
of the Applicant's deponent's affidavit. It was said the warrant was
vague and embarrassing in that it had not been addressed to specific
people. It was contended it was for that reason null and void. If it
is so why was it not challenged before the magistrate?
Mr. Seamatha's attention to the fact that a judgment that was still
to be executed was a proceedings which were pending before that
Court. This was by analogy similar to proceedings that have not been
withdrawn before a Court. That virtually meant that the case founding
the disputed writ was still a matter before the magistrate. This was
because even if it had gone on appeal when the appeal ultimately
failed a return is made to the Court a quo to execute the judgment.
This appears to be even so in the instant case where no appeal was
pending. So is the theoretical and even more so the practical reality
that the matter will still belong to the Court a quo before
impressed on the Applicant's attorney that it might perhaps be that
there were many faults with the writ, as issued, even bordering on
irregularity but those matters would still have to be entertained as
prescribed in before the High Court
and the High Court Rules when brought before the High Court. The
stock reply was always that it was MJM (Pty) Ltd which started this
process of forum shopping. I thought that even if it was so it was a
wrong practice that had to be curbed. So that it was an objection
which should have been raised all along and a question (of
jurisdiction) which should have been asked all the time even with
regard to the proceedings that brought about annexure "D".
perhaps be that the matter of appeal which Mr. Seamatha spoke about
as pending was something other than the two Court of Appeal decisions
that I have just referred to earlier in my judgment but there was no
reference to such an appeal in the instant application. It might
perhaps be that the intention of the Applicant was to seek to declare
that the writ of execution was a bad process, again that was not
clear in the papers. For all I am able to recall at the time that the
full bench is said to have sat there was an intended appeal by the
Applicant whose fate no one speaks about now. It concerned some issue
of a right of occupation by a lessee of the property in dispute. If I
am wrong it can only be that there was such appeal after at all. But
no one spoke about it in these proceedings.
with Mr. Sello for the Respondent that the relief sought by the
Applicant appeared to be one of a permanent interdict which had
virtually been previously sought in annexure "D" which
confirmed of annexure "C" I did not have to consider the
query that the matter had been wrongly moved ex parte without notice.
The prejudice in such procedure was almost guaranteed when the party
with real interest was not even cited who had had a judgment in its
favour for close to three years. Except to add that if this
application had been a normal well founded claim that it was urgent
would speak for itself. That is if it had to do with a stay of
execution of a writ properly sought for example.
judgment that was being executed by the magistrate was a judgment
over which there had been an appeal to the Court which had gone
through several stages in different guises of applications since
about 1998. It was an old matter. My interest remained to be about
the nature of the relief sought. Now is about a challenge to a
messenger of Court (Respondent) who seeks to execute an order of the
Magistrate Court. This is done when it appears that is at the end of
road. That is why Counsel for Respondent contended that the present
strategy was to chase and intimidated Respondent with multitudinous
problem remained to be in my view not one of non-joinder but a
deliberate avoidance of citing the only party with a real interest
that is MJM (Pty) Ltd. It cannot really be a good case that MJM (Pty)
Ltd should have applied to have itself joined. It is a case of MJM
(Pty) Ltd who has a real interest in this case who was being
deliberately avoided so that when another turn comes it is cited so
that the problem become protracted and protracted.
This is a
situation where MJM (Pty) Ltd has a judgment in its favour which has
a minimum of two years. A real basis has to be made out how the
execution of judgment can be stopped. That is why Counsel for the
Respondent kept on asking why the matter was even being brought ex
parte. That is besides the question of the application being brought
in a wrong Court.
perplexing aspect would really be why the Applicant not relying on
annexure "D" but rushed on again to this Court to sue for
another order. He should have relied on annexure "D" in
refusing to be ejected or on refusing to be arrested. If it has any
value then it would have been a good defence before the magistrate or
any arrester. Instead the Applicant came here before the Court to get
an identical order. This is wrong. There were also other more
should have at all times, in asking for an interdict, have to show a
clear right, a wrong actual committal or apprehended which is basic.
An Applicant came here before this Court to say that the Courts must
interdict for all times execution of a judgment of a court of
competent jurisdiction. Why would a real litigant (MJM (Pty) Ltd) be
given a right, by means of judgment, and thereafter the same Court to
have the fruits of the judgment denied that litigant? This kind of
relief novel as it appears should have a justification as to what it
is based upon in law in seeking to stop a judgment in being executed.
Only an appeal or stay would stop a judgment from being executed by
the magistrate or judge who granted the judgment.
Court knows of no other way of stopping a judgment which is binding
in law. That is why for example in a matter involving Applicant and
MJM (Pty) Ltd there was stay of Chief Magistrate's judgment (which
had come by way of appeal here) when appeal had been noted. Then
instead of following up on that appeal to the Court of Appeal there
is this multitudinous applications of strange and peculiar character
unknown to our procedures which all seek to interdict the execution
of a judgment of a competent court. There has to be a basis for that.
And similarly why would a warrant of apprehension that is good on its
face and content being sought to be interdicted on grounds that there
has already been preceding orders which are not too clear as to their
satisfied that there had to be execution of the judgment in CC
424/97. This was after appeal to the Court, stay and decision of this
Court which decided against the Applicant. It did not appear that
after this the Applicant took any appeal. It was not clear how she
could rely on the two judgments of the Court of
one of which succeeded.
disputed writ was issued by the Magistrate and the Clerk of Court who
appointed this Respondent, who is a Messenger of Court who now as I
found was a wrong respondent because he was not a real party with a
real interest. I did not find any good explanation from the
Respondent's Counsel as to why the real party or litigant (MJM) Pty
Ltd was not cited. This company was the real party who belonged to
I did not
have any explanation furthermore, as to the kind of interdict sought
was being sought by the Applicant. I did not find any good
explanation furthermore how this Applicant came to this Court other
than by stay of execution or appeal. Neither did the Applicant say
that she came by way of review, transfer of proceedings nor was a
declaration being sought. Nor was there an explanation why this
matter would not be challenged at the Magistrates Court where it
still belonged. This seems to be a wrong Court. I was not persuaded
that because this High Court has already decided the matter as shown
in annexure "D" that I ought to be bound as if by ratio
decidendi, stare decisis or res judicata or whatever while the real
party was not and had not been joined in the proceedings. Even if it
has happened in the past it could only mean that it was irregular.
did not see that the Applicant had any right nor that the Respondent
had committed a wrong in the attempted execution of the judgment.
addition I did not quite appreciate the kind of relief sought in the
circumstances where virtually the Respondent had not done any wrong.
decision was that the application ought to fail with costs. Perhaps
still be something good in she application if it was brought before
present and for above reasons it was misconceived.
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