CIV\APN\128\90

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

JAMES
MASITHA TENTE Applicant

v

GUGU
SELLO 1st Respondent

LEHLOENYA
MATETE 2nd Respondent

F.C.
PARSONS 3rd Respondent

JOBODWANA,PHEKO
& CO. 4th Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 17th day of August, 1992

On 16th
May, 1990 the applicant obtained against the respondents a rule nisi
granted by Molai.J calling upon them to show cause
on 11th June,
1990, why :-

A: 1. The Writ of Execution sued out in CIV\T\223\87 against the
Applicant shall not be set aside

2. The
   3rd and 4th Respondents shall not be interdicted from suing out or
   causing to be sued out against Applicant any other Writ
   of
   Execution in the said CIV\T\223\87 and 1st and 2nd Respondents
   interdicted from acting, in any manner whatsoever on the
   strength
   of such Writ insofar as it may purport to be authority for the
   attachment in execution of any of Applicant's property.

   
   

2

2. a)First
   Respondent shall not be ordered to pay the costs of this
   Application de bonis propriis on an attorney and client scale;

   
   

2. First
   Respondent shall not be ordered to pay Applicant the sum of M400-00
   being the sum paid by Applicant to 2nd Respondent for
   the transport
   of Applicant's goods seized in execution of the said Writ at Morija
   in February, 1990.

   
   

3. First
   Respondent shall not be ordered to pay interest at the rate of 18%
   per annum on the said sum of M400-00 from the date of
   the same to
   2nd Respondent to the date of settlement.

   
   

Alternatively
to 3 above :

4. Third
   and\or Fourth Respondents shall not pay the claim in paragraph 3
   above jointly and severally with 1st Respondent, the one
   paying the
   other to be absolved.

   
   

4. Applicant
   shall not be granted such further or alternative relief as may be
   deemed fit.

   
   

B. That
2nd Respondent be and is hereby interdicted, ad interim, from
attaching any property belonging to the Applicant on the strength
of
the said Writ of Execution,

Mr, Sello
appeared for the Applicant oh the extended return day while Mrs
Kotelo appeared for the 1st Respondent; and Mr. Pheko
having
withdrawn in respect of the 3rd Respondent appeared for the 4th
Respondent. It would seem the 2nd Respondent who is a Court
Messenger
would abide by the decision of the Court in these proceedings.
Needless to say he did not enter any notice of opposition
to the
Application.

3

In his
Founding Affidavit the Applicant deposes that he is the Education
Secretary for the Lesotho Evangelical Church (L.E.C.) schools
and is
as such employed by the L.E.C.

The
Applicant further deposes that in February 1990 the 2nd Respondent
attached from the Applicant's office at Morija property under
his
control. This consisted of computers, type­writers, filing
cabinets, desks and chairs. The Applicant avers that these items
of
property were according to the deputy sheriff being attached pursuant
to execution of a judgment in a certain CIV\T\223\67 where
the
dispute was between one F.C. Parsons (who was plaintiff) and one K.S.
Varughese (who was defendant). A copy of the Writ marked
Annexure "A"
is attached in the Applicant's papers to substantiate his averment in
that regard; This Writ was sued out
of the Registrar's office and
signed by the 1st Respondent in her capacity as the Assistant
Registrar. The Writ however is a directive
to the Sheriff or his
lawful deputy.

The
Applicant avers further that he had taken advice from his attorneys
on the strength of which he informed the 2nd Respondent
that he was
resisting the execution intended to be levied by 2nd Respondent on
the property under his control because the Writ
was, according to the
advice received, invalid.

4

However
the 2nd Respondent forcibly seized that property despite the
Applicant's protests.

It is
common cause that on the representations of the Applicant's attorneys
before the 1st respondent the latter instructed the
2nd Respondent to
desist from levying execution. Annexure "B", a letter
written on 8-2-1990 by 1st Respondent is on hand
to substantiate the
contention referred to above.

However
it appears that in terms of Annexure "C" written the
following day the 4th Respondent informed the 1st Respondent
by
letter copied to the Applicant that the execution was proper in view
of the fact that it derived its strength from the arrest-bail
bond
contained in CIV\APN\105\87 involving Parsons and Varughese, who were
respectively applicant and respondent in that matter.

In terms
of Annexure "E" - the Arrest-Bail Bond - it appears that
one Aaron Thoahlane who was acting on behalf of the
schools
secretariat of the L.E.C. as of 23rd April 1987, acknowledged himself
bound jointly and severally with executors and administrators
of the
L.E.C. to the Sheriff of the High Court of Lesotho in an amount of
M6000 provided Varughese shall have failed to appear
before Court on
27th April 1987 to answer the case instituted against him by Parsons,
and to remain in the

5

Court's
jurisdiction until delivery of judgment.

It seems
then that upon receiving Annexure "C" the 1st Respondent
reversed her instruction to the deputy sheriff to desist
from
executing the judgment as she considered the Writ to have been
properly issued after all. This was in terms of a letter written
on
9th May 1990 by the 1st Respondent to the 2nd Respondent. The letter
was copied to the Applicant's attorneys and 4th Respondent.

I should
mention here that the 4th Respondent's letter dated 9th February 1990
advising 1st Respondent that

"It is not for you to say the execution is improper"

was
copied to the Applicant's attorneys as well as to the deputy sheriff.

The
Applicant's reaction to the copy of the letter just referred to above
is that

".....In these circumstances my attorneys did not see how they
could react to this letter, Annexure "C" hereof,
which, to
say the least, is simply prescriptive".

The
Applicant avers that when his attorneys communicated

6

with 1st
Respondent by telephone contending that she should have summoned his
said attorneys with 4th Respondent before writing
Annexure "D"
the latter's reaction was that it was then too late.

In
paragraph 7 of his Founding Affidavit the Applicant averred as
follows, :-

"It has always been my case, which argument was repeatedly
advanced by my attorneys to First Respondent ever since my property

was seized, that where, as in this case, a Writ of Execution is, on
the face of it, clearly invalid, it is no excuse for a Sheriff
to act
on it, particularly, if that Sheriff is also the Registrar of the
Court, simply because it has been sued out and take the
attitude that
the consequences thereof are the business of its
issuer.....................".

It is a
point of some nicety that while in the Rules of the High Court
appearing in the High Commissioner's Notice 8 of 1941 (now
repealed)
the title "Sheriff" "shall mean the Registrar of the
High Court and shall be deemed to include such Deputy
Sheriff or
Deputy Sheriffs as he may from time to time appoint" the current
rules say "Sheriff" " shall mean
the person duly
appointed as such and shall include any deputy sheriff duly appointed
and assistants to the sheriff or deputy sheriffs"
Significantly
in the current rules it is not shown who appoints the sheriff or
deputy sheriffs or even how these are appointed;
whereas in the now
repealed rules the Registrar as Sheriff was

7

entitled
to appoint deputy sheriffs. Thus the new rules have deprived the
Judicial system of the otherwise clear means of appointing
deputy
sheriffs.

But
because the High Court Act 1978 Section 5 makes reference to the
Registrar of the High Court and Assistant Registrars and nowhere

refers to a sheriff or deputy sheriff it would seem that the sheriff
as envisaged in the current rules cannot supersede the Registrar
in
the discharge of duties related to executing Court Orders. Thus I
should think he or she is entitled to assign service of such
orders
and court process to deputy sheriffs even if appointed only on ad hoc
basis.

The
Applicant charges that the 1st Respondent has been extremely
negligent and uncaring, high-handed and reckless in the extreme.
He
goes on in developing his charge against the 1st Respondent as
follows in paragraph 9:

"She has dealt with this Writ of Execution in two capacities;
firstly as Registrar, in which capacity she had to satisfy herself

that it was properly issued and valid and, secondly as sheriff who
had to execute it and who, before delegating her powers of execution

to second Respondent, had again, to satisfy herself that the Writ
complied with the law. After having been told by my attorneys
of
record that the Writ was invalid and warned that it could land her in
trouble, First Respondent ought,....... either to have
asked for
legal authority from my attorneys backing their argument or, more
appropriately, have, even cursorily looked up the law........."

8

In this
regard the Applicant referred to a passage in "The Civil
Practice of the Superior Courts in South Africa" by Herbstein

and Van Winsen, 3rd Edition at p.600 where it is stated:

"The judgment debtor is the person against whose property the
writ is issued. A writ cannot be sued out against the property
of a
person against whom there is no judgment".

The 1st
Respondent in paragraph 4 of her answering affidavit challenged the
Applicant's authority to bring these proceedings before
Court.

The 4th
Respondent supports the above challenge in paragraph 10 by stating
that the property attached does not belong to the deponent
to whose
affidavit the answer is directed. The 4th Respondent avers that to
its knowledge the property of the Applicant was not
attached.

It seems
in his reply in paragraph 10 the Applicant strives to indicate that
reference to property as his also means that property
that belongs to
the Schools Secretariat of the L.E.C. and in respect of which the
Applicant's predecessor bound the L.E.C. Schools
Secretariat to the
sheriff in the amount of M6000 upon the incidence of a condition
which came into operation immediately on Varughese's
failure to
fulfil conditions set out

9

in
Annexure "B".

There
doesn't appear to me on the papers that Varughese fulfilled any of
the conditions which would help the Schools Secretariat
of the L.E.C.
avoid liability to the officer named in the Arrest-Bail Bond namely
the Sheriff or his cessionaries or assigns.

I have
considered the passage relied on by Applicant in Van Winsen et al
above. Clearly a writ cannot be levied against a third
party. But in
my view if a third party places himself in judgment debtor's shoes I
do not think the judgment creditor is. wrong
to execute on the money
which is in the third party's hands. If I am correct in this view it
follows then that provisions of rule
46 to the extent that risk is
borne by the issuer of a writ would apply in this instant matter.

In Segal
vs Diners Club South Africa(Pty)Ltd 1974(1) SA 273 at 275 Snyman J
cited Innes CJ's words at 891 in Bell vs Bell-1908 TS
887 that:

"When an order incidentally given during the progress of the
litigation has a direct effect upon the final issue, when its

execution causes prejudice which cannot be repaired at a later stage,
when it disposes of a definite portion of that suit, then
in essence
it is final though in form it may be interlocutory".

10

Although
this appeared on papers to be a fairly brief application it is
regrettable that the applicant's founding affidavit was
couched in
acrimonious and unwholesome language that does not befit the type of
business that it is the duty of the Court to carry
out; namely to
decide on disputes between parties. The extravagant and immodest
language was in turn resorted to by his attorney
during addresses, a
feature which in turn evoked similar response but to a lesser extent
on the part of the respondents' respective
Counsel and attorney. I
can only point out that the famous dictum in Findlay vs Knight 1935
AD 58 by Weasels CJ at p.71 should
not be overlooked as stated that :

"Qualified privilege implies two principles of public policy -

1. that
   the welfare of society demands that an advocate or attorney who
   pleads the cause of his client should have a large degree
   of freedom
   in laying his client's case before court, even though in so doing he
   defames the other party or even a third party.
   The decided cases
   show that he has this privilege when opening a case in court, when
   examining and cross-examining witnesses,
   and when addressing court.
   For the same reasons the pleader must enjoy this qualified privilege
   when he files formal pleadings
   and other documents necessary to
   place his client's case before court. To hamper his freedom in this
   respect would be . contrary
   to public policy, and therefore our
   courts accord to attorneys and advocates a large measure of freedom
   in drawing pleadings
   and pleading causes.

   
   

2. The
   other principle of public policy which underlies qualified privilege
   is that the process of the courts shall not be wantonly
   used for the
   purpose of defaming either litigants or third parties. The courts
   cannot allow

   
   

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advocates and attorneys to use the process of the courts for an
illegitimate purpose; for manifestly the law cannot countenance
an
abuse of the privilege. And where the privilege is abused, malice is
inferred - Kleynhans vs Usmar 1929 AD 121 at 126".

It is in
the light of this 2nd principle that the Court found it exceedingly
irritating if not abusive to refer to officers of this
Court as
sixpence lawyers and or a cypher, I shun to refer to all instances of
abuse with which this proceeding is bristling.

In
Mackenzie vs Mykonog Weskus Beleggings (EDMS) Beperk (unreported) CPD
dated 13th April 1992 Tebbutt J once a member of the Lesotho
Court of
Appeal said:

"The applicant in his founding affidavit has been critical of
the curators but in language which I felt,....... to be intemperate.

This' understandably provoked a response from the curators which,
however, was also without restraint. As to be expected this in
its
turn provoked a rejoinder from the applicant and his attorney, again
in unnecessarily extravagant terms, in my view, and the
curators in
turn have replied once more to that. I have in this judgment
deliberately refrained from adverting to these allegations.
They are
irrelevant to the Court's decision on the true issue before it. I
will probably, however, have to refer to them when I
come to deal
with the question of costs in due course.

I would
though at this stage say to the parties that acrimonious attacks on
one another and personal vituperation does not assist
this Court in
coming to a decision on true issues before it. It does not influence
the Court in arriving at its decision and it
does not serve to
advance the cause

12

of either party but rather to detract from it. ........I would advise
all parties...... to exercise the restraint that I would
expect from
people in positions of responsibility and I express the admonition
that should this not occur, the Court will not hesitate
to deal
therewith with an appropriate order as to costs".

The
respondents who are represented in this proceeding have both in
affidavits and in arguments indicated that the Applicant does
not
seem to be acting in representative capacity for Schools Secretariat
of the L.E.C. It cannot be said this observation is invalid
on the
ground that in C. of A. (CIV) No. 6 of 1987 The Central Bank of
Lesotho vs E.H. Phoofolo (unreported) at p.15 Mahomed J.A.
as he then
was said :

"There is no invariable rule which requires a juristic person to
file a formal resolution, manifesting the authority of a
particular
person to represent it in any legal proceedings, if the existence of
such authority appears from other facts".

Proceedings
in the appeal just referred to above showed that the deponent for the
appellant had made it very clear what his capacity
was. In the
instant matter even at the replying stage the deponent for the
Applicant seems keen on disobliging the respondents
who have clearly
indicated that they challenge the Applicant's deponent's claim that
the property he claims he was despoiled of,
was his. It cannot then
in the circumstances be said that the respondents' challenge for
non-disclosure of a material fact is unjustified.
On this ground
alone it would be

13

proper to
dismiss this application,.

Mrs.
Kotelo for the 1st Respondent took a point of law to the effect that
the 1st Respondent being an employee of the . Lesotho
Government; and
the conduct complained of against her having been manifested in the
course and execution of her duties as such
employee, should have been
joined with the Attorney General. With respect the counter argument
against this proposition seemed
to me to fly in the face of the Court
of Appeal ruling in C. of A. (CIV) No.12 of 1983 David Masupha vs
Paseka 'Mota (unreported)
at p.2 where Wentzel J.A. said :

"In the absence of that joinder which respondent neglected in
his application, the proceedings are defective and the order,

accordingly........ must be set aside"

Even on
the technical ground that this application should have been brought
on notice and not on urgent basis I am of the view that
this
application was doomed to fail for it is inconceivable that the
Applicant could wait for four months and suddenly decide after
that
period that he should' move his application on urgent basis.

All in
all the Applicant struck me as a person who is given to making wild
and unsubstantiated statements against other parties.
For instance he
stated that the 1st Respondent in

14

acting as
she did against his interests had been stampeded and intimidated by
the 4th Respondent's letter as if in fact he had learnt
this to be so
from the 1st Respondent herself. But the 1st Respondent in her
answering affidavit shows that she acted as she did
after taking
advice from other lawyers and thus gives a lie to the averment that
she had been intimidated.

Technically
the correct procedure may be that leave to execute against the
property of the surety should first be sought from the
Court. In view
of the fact that undisputed facts show that the actual judgment
debtor has left the country the applicant is liable
for the debt as
he on the occurrence of such event, has bound the executors and
administrators of the L.E.C. Schools Secretariat
to pay. Moreover it
would merely serve to increase costs to insist that the whole process
be started from the beginning when the
final result would still be
the same.

The
Application is dismissed and rule against 4th Respondent discharged
with costs.

JUDGE

14th
August, 1992

For
Applicant : Mr. Sello

For 1st
Respondent: Mrs. Kotelo