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 Pheko having withdrawn in respect of the 3rd Respondent appeared for the 4th Respondent.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

11

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