CIV/APN/265/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

AZAEL
TATOLO SEHLABAKA Applicant

V

SOLICITOR
GENERAL 1st Respondent

WILLIAM
LEMENA LEMENA 2nd Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 4th December, 1985.

In this
matter an order was issued out of this Court on 8th November 1985 on
an ex parte application calling upon the Respondents
inter alia to
show cause why a sale in execution of property of the Applicant
advertised for 9th November 1985 should not be interdicted.
This
order was to operate as an interim interdict and the sale was thereby
effectively stopped.

A
judgment of this Court dated 9th July 1984 had been obtained by the
1st Respondent against Applicant by default for unpaid sales
tax
totaling M25052.92 plus penalties of 10% per month in terms of the
relevant legislation plus interest at Court rates from date
of
judgment. The annexure attached to the Summons shows that the unpaid
sales tax was made up of various amounts remaining unpaid
from dates
commencing in December 1982.

A writ
was issued on 20th August 1984 for an amount of M51160.84 and certain
goods described in the attachment order were attached
by the Sheriff.
These goods were not removed but were left under attachment in the
possession

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of the
Applicant.

On 5th
November 1985 the Sheriff removed a large quantity of goods from the
Applicant's possession which goods were certainly not
the same as the
goods originally attached though there may have been some overlap,,
Then at about that time an advertisement appeared
in a local
newspaper anouncing a sale in execution to be held on 9th November of
certain goods described as being the property
of various debtors some
of whom were given the name of Lerotholi. It is common cause in this
matter that through a printer's error
the sale of Applicant's goods
was referred to in the advertisement under the name of Lerotholi.

Rule
46(7) of the Rules of Court requires a lapse of not less than 14 days
from date of seizure of the goods before they may be
sold by auction
and after due advertisement.

Both
requirements of the rule have not been complied with and it was not
strenuously contended that the interdict of the sale should
not be
confirmed.

However,
Applicant's first prayer was for an order setting aside the writ of
execution as being in conflict with the judgment on
which it is
based.

The point
of conflict is that whereas the capital amount of the judgment was
only M25052.92 the writ was for an amount of M51,160.84.

A very
full explanation of this difference was given by 1st Respondent in
his replying affidavit from which it is apparent that
the difference
is made up by adding to the capit

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amount of
the judgment the penalties awarded in terms of the relevant
legislation and interest which make the sum of M51160.84.

It is
obvious that these penalties and interest had been calculated for the
purpose of issuing the writ and there is no conflict
between the
amounts of the judgment and of the writ. This prayer is totally
without foundation but obliged the 1st Respondent to
deal fully with
it in his reply to the application on this ground. It is totally
divorced from the relief claimed in prayer (b)
of the notice of
motion and can in no way be regarded as ancillary to it. It must be
dismissed.

Similarly
prayer (c) of the notice of motion calls for a restraint on the sale
pending an investigation by the Sales Tax Staff as
to whether or not
the correct sales tax had been levied and paid. This form of relief
is also unmotivated and groundless. A considerable
portion of the
application was devoted to Applicant's attempts to justify an order
of this nature which, whatever its intrinsic
merits may be and which
are seriously open to question, can have no foundation in the light
of the default judgment still extant
in favour of the 1st Respondent.

This
prayer also is for separate unconnected relief in no way ancillary to
the interdict on the sale and it must be dismissed.

I am
satisfied that the Applicant has succeeded only on a minor claim for
relief and has failed on his claims for the other more
substantial
relief sought by him.

A great
part, certainly substantially more than half

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of the
application both in paperwork and argument was devoted to argument on
the issues on which Applicant has failed. Applicant
would ordinarily
get the cost of the claim on which he has succeeded while Respondents
should be awarded the costs of the claim
in which he has failed.

I think
it would be equitable and relieve the taxing master of a difficult
calculation if I order that there should be no order
as to costs.

The
Respondents are restrained from proceeding with the sale of
Applicant's goods which was advertised for 9th November 1985 and

there will be no order as to costs.

D.T.S.
LEVY

ACTING
JUDGE.

4th
December, 1985.

For the
Applicant : Mr. Maqutu

For the
Respondents : Mr. Mpopo.