HIGH COURT OF LESOTHO
FURNISHERS (PTY) LTD
7 VALUE FURNISHERS Applicant
by the Honourable Mr. Justice J.L. Kheola on the 13th day of
2nd April, 1992 the applicant obtained an order which reads as
is ordered that the Rules of Court relating to service and notice be
and are hereby dispensed with and the matter is heard
as of urgency;
Rule Nisi do hereby issue calling upon the Respondent to show cause
shall not be committed to jail for contempt of Court.
Sheriff or his lawful
deputy be and is hereby authorised to apprehend the Respondent,
detain and bring him before this Honourable . Court.
shall not be ordered to pay costs of this application on an attorney
and client scale.
prayer 2 (b) operate with immediate effect as an interim order.
founding affidavit the deputy-sheriff avers that on the 4th March,
1992 he proceeded to the house of Molemo Mpeta who is
respondent's brother and judgment debtor in CIV\T\471\91. When he was
in the process of removing the said property to court
obstructed him by forcibly taking the property back into the house.
He had to leave.
that he again went to the same house on the 19th March, 1992
accompanied by two police officers. Again the respondent obstructed
him and stopped him from removing the property attached.
answering affidavit the respondent avers that on the day in question
the deputy sheriff and two people unknown to him arrived
parents' home, and in his presence, wanted to load property onto a
vehicle, on an allegation that they had been authorised
to do so by a
court order. He reminded the deputy sheriff of the order in
CIV\APN\102\92 but he ignored him. He then refused to
entry into the house, but he used no force. The fact of the matter is
that no property was removed from the house and
into the house by him.
respondent avers that prior to this occasion the deputy sheriff came
to the said house. Despite the explanation by himself and
brother Hlompho Mpeta that the property being attached did not belong
to Molemo Mpeta, the deputy sheriff removed some
property. It was
then that Hlompho Mpeta instituted CIV\APN\102\92 for, inter alia,
the stay of of the sale of the property already
removed and an order
directing the deputy sheriff to institute interpleader proceedings.
applicant has not filed any replying affidavit. In other words it has
by the respondent unchallenged.
defence of the respondent is that on the day in question i.e. on the
19th March, 1992 when the deputy sheriff was accompanied
police officers, he refused to allow them entry into the house but
used no force. He was relying on the order his elder
obtained in CIV\APN\102\92 for inter alia, "the stay of the .
sale of execution of the property already removed,
as well as an
order directing the deponent to institute interpleader proceedings in
terms of the law before the sale in execution
of the said property."
It seems to me that prayers 1 (b), (c) and (d) in CIV\APN\102\92 were
concerned with the property already
removed and already in the
custody of the deputy sheriff. The order did not refer to the stay of
execution in general but it specifically
referred to the stay of the
sale in execution of the said property. If the order referred to
specified goods and to stay of their
sale, the deputy sheriff was
free to go on with the execution until he had collected enough goods
to realise the required amount.
The respondent referred to an order
of court which did not stop or stay execution in general but referred
to stay of
case the said property was attached on the 26th February, 1992 and
removed on the 27th February, 1992. The present contempt
of Court is
alleged to have occurred on the 4th March, 1992 and on the 19th
March, 1992, The respondent admits that he "refused
them entry into the house, but he used no force." The question
whether this "refusal" does not amount to
contempt of court
for which the respondent could be committed to prison. The requisites
for granting an order of committal are
clearly set out on page 657 of
Herbstein and Van Winsen: The Civil Practice of the Superior Courts
in South Africa, third edition.
An applicant for an order for
committal must show -
an order was granted against the respondent; and
the respondent was either served with the order, or was informed of
the grant of the order against him and could have no
ground for disbelieving the information;
(c) that the respondent has either disobeyed it or has neglected to
comply with it.
instant case the order was not granted against the respondent but
against his elder brother. In other words the writ was
Mpeta in CIV\T\471\91. The respondent cannot be committed to prison
for contempt of court because he was not a respondent
or defendant in
the abovementioned case. However, that does not mean that no action
can be taken against him. If he is aware that
the deputy sheriff is
holding a writ issued by a court of law and he deliberately obstructs
him in the execution of his duties
he can be charged with the common
law crime of contempt of court. Cases of obstruction of messengers of
Court are in practice dealt
with as contraventions of section 74 (a)
of the Subordinate Courts Act No.9 of 1988.
result the rule is discharged with coats.
Applicant - Mr. Mahlakeng
Respondent - Mr. Nathane.
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