Appeal from Magistrate’s judgment – order of Magistrate that goods subject to notarial bond not to be sold in execution by Messenger of court – appellant appeals on grounds of irregular interpleader summons – also disputes the identity of bonded items – whether bonded goods may be subject to alienation or sale in execution – grounds of appeal insufficient – Magistrate’s order confirmed.Appeal from Magistrate’s judgment – order of Magistrate that goods subject to notarial bond not to be sold in execution by Messenger of court – appellant appeals on grounds of irregular interpleader summons – also disputes the identity of bonded items – whether bonded goods may be subject to alienation or sale in execution – grounds of appeal insufficient – Magistrate’s order confirmed.Appeal from Magistrate’s judgment – order of Magistrate that goods subject to notarial bond not to be sold in execution by Messenger of court – appellant appeals on grounds of irregular interpleader summons – also disputes the identity of bonded items – whether bonded goods may be subject to alienation or sale in execution – grounds of appeal insufficient – Magistrate’s order confirmed.Appeal from Magistrate’s judgment – order of Magistrate that goods subject to notarial bond not to be sold in execution by Messenger of court – appellant appeals on grounds of irregular interpleader summons – also disputes the identity of bonded items – whether bonded goods may be subject to alienation or sale in execution – grounds of appeal insufficient – Magistrate’s order confirmed.
IN THE HIGH COURT OF LESOTHO
In the matter between
PRODUCTION SYSTEMS (PTY) LTD DEVELOPMENT FUND APPLICANT
SOUTHERN AFRICA MEDIA DEVELOPMENT FUND 1ST RESPONDENT
CHIEF MAGISTRATE (M.KOLOBE) 2ND RESPONDENT
MESSENGER OF COURT (M MAKARA)
M. THAMAE 3RD RESPONDENT
TOTAL PRINT HOUSE (PTY) LTD 4TH RESPONDENT
GENERAL ATTORNEY 5TH RESPONDENT
Coram : L.A. Molete J
Date of Hearing : 29th October 2018
Date of Judgement : 28th June 2019
Appeal from Magistrate’s judgment – order of Magistrate that goods subject to notarial bond not to be sold in execution by Messenger of court – appellant appeals on grounds of irregular interpleader summons – also disputes the identity of bonded items – whether bonded goods may be subject to alienation or sale in execution – grounds of appeal insufficient – Magistrate’s order confirmed.
Kaka v Lesotho Bank and Others (C of A CIV/No.12/9)
Subordinate Court rules 1980
Wille Law of Mortgage and Pledge in South Africa; (2nd edition) @ p.107
J.T.R. Gibson – South African Mercantile and Company Law;
6th Edition p.621
 This is an appeal lodged by appellant, Production Systems (Pty) Ltd; against the judgment of Chief Magistrate M. Kolobe. The learned magistrate ruled in favour of 1st respondent’s claim to certain attached goods.
 It is necessary to set out in some details the history of this case. It is a sad history because a lot of time was wasted on a matter that should have been easily resolved and settled by counsel even before the courts were approached. Substantial costs of litigation should not have been incurred in this matter.
 A convenient starting point is that sometime in 2011, under case numbers CC1092/11, CC1029/11 and CC1139/11 the appellant obtained judgments and issued writ of execution against Total Print House (Pty) Ltd for the sums of M23,684-77, 23,684-77 and 14, 588-61.
 The amounts were within the jurisdiction of the Magistrate’s Court, therefore the judgments were obtained from that Court in default of appearance. The cause of action was overdue rentals owed to appellant by Total Print House (Pty) Ltd.
 The first respondent allerges that it; at that point, made a verbal representation to the Court Messenger that the attached property belonged to it and that there was a registered Notarial Covering Bond over all the property so it could not be sold in execution.
 It is apparent that appellant, who was the judgment creditor in that case insisted that the messenger should proceed to sell the attached goods despite 1st respondent’s interest in the matter. It then made application to court to prevent a sale in execution.
 All the above occurred in the years, ignore 2013 to 2014. The application was heard and argued, and judgment was granted in favour of applicant by Chief Magistrate Ms M. Nthunya on 4th June 2014. It is in that judgment where the following paragraph appears;
“Although efforts/attempts have been made by Applicant to be given the property to refurbish and sell so that they settle 2nd respondent’s debt, and this has been rejected by 1st respondent, I believe that was a generous gesture by the Applicant to try to resolve this impasse amicably.”
 I took particular note of this paragraph because even before this Court after the persistent litigation by appellant the 1st respondent still offered to resolve the matter by having the property refurbished and sold so that appellant would be paid its overdue rentals. Appellant refused.
 In any event the appellant took the matter on review to the High Court on 9th March 2015. The ruling of Moiloa J on review, was that the matter be remitted back to the Magistrates Court to be heard by a different magistrate. Though the review papers were not placed before me, it would be logical to conclude that the order was made because instead of proceeding by way of interpleader summons, in terms of rule 44 (2) of the Subordinate Court rules, the matter had been instituted as an ordinary application.
 Subsequent to that; the application was withdrawn and interpreader summons was issued on the 25th June 2015. I will now refer to the parties as Production Systems (The appellant); SAMDEF (1st respondent/interpleader) Total Print Hose (Pty) Ltd (the rental debtor). This is because they have been differently cited in all the previous proceedings and have been applicant or respondent in the various suits. For ease of reference and consistency I will refer to them as Production Systems; SAMDEF and Total Print House.
 Production Systems then filed a document styled response to interpleader summons and opposed the application which was then placed before Chief Magistrate Mr M. Kolobe. Production Systems (the appellant) apparently was persistent in the pursuit of the sale in execution of the disputed items, and SAMDEF had to apply for a stay of the sale. The application was opposed and argued. It is subject of this appeal.
 It is necessary to mention that the appeal was first lodged in the civil division of the High Court where Nomngcongo J decided that it should be a matter for the Commercial Court and it was transferred to this Court. The appeal was lodged late and required an application for condonation for the late filing. The appellant brought the application, which was not opposed by respondent and the matter was argued after lengthy delays in filing of the record of appeal and numerous attempts by the court postponing the matter to persuade the parties to settle it amicably. It did not succeed.
 The judgment of the learned Chief Magistrate Mr M. Kolobe recognised the validity of the notarial covering bond, as had the earlier judgment of Chief Magistrate Ms M. Nthunya. It gave effect to the bond and prevented the sale.
 Grounds of appeal set out in the appellants Notice of appeal are that;
The learned magistrate erred and misdirected himself by upholding interpleader summons that were procedurally flowed, (sic) and not prepared by the messenger of court as per the rules.
The learned magistrate erred and misdirected himself by ruling that 1st respondent herein is the owner of the property in question where there is no clear indication to that effect from the covering bond relied on by 1st respondent.”
 In simple terms, the appellant’s complaint is that the magistrate should have rejected the interpleader summons for non-compliance with the rules, and secondly that the notarial covering bond does not relate to the property that was attached.
 As to the first ground of appeal; it appears that the magistrate fully considered the matter and accepted that the interpleader summons was in compliance with the rules. In any event rule 56(1) of the Subordinate Court rules provides that
“……failure to comply with these rules or with any request made in pursuance thereof shall not be ground for the giving of judgment against the party in default.”
 It means that even if the appellant is correct and the magistrate accepted a procedurally flawed summons, that on its own would not have entitled appellant to a judgment against 1st respondent. Indeed, the magistrate seems to have correctly placed his focus on the substantial issue before him and it was whether the property belonged to the judgment debtor, Printhouse and its publication Public Eye, or to the 1st respondent SAMDEF. That was the issue to be decided and he correctly decided it in favour of 1st respondent. He cannot be faulted in this regard.
 The second ground of appeal is also problematic, in that the appellant says that the notarial covering bond does not refer to the property that was attached. In my view, it should not present a problem to identify the property that is bonded. It is listed in the notarial bond, and can easily be identified. Both chief magistrates accepted that the bonded property is that which is in the appellant’s possession, and moreover neither Printhouse (Pty) Ltd nor Public Eye Newspaper contested ownership of the property. They did not insist to be the owners of the bonded property.
 It is common cause that under special notarial covering bond Number 27531, Public Eye (Pty) Ltd mortgaged all the movable assets listed in Annexure “A” as well as any other movable assets which may be purchased from time to time. The value of the bond is over M3,098,983-00 and it is common cause that it has not been cancelled, meaning full payment has not yet been made to settle the amount owing. The bond was duly registered and was registered in favour of 1st respondent.
 It is a well known principle of law that the effect of a special mortgage on property duly executed and registered, is that no alienation of the property can deprive the mortgagee of his mortgage. In fact the purpose of registering a bond over any property, is to secure the real right which the creditor has over the property of his debtor to secure performance of the obligation to pay.
 This is the intention when a mortgage, pledge and notarial covering bond is signed and registered by the parties. It has also been confirmed that this is the position in Lesotho by the Court of Appeal in the case of Kaka v Lesotho Bank and Others (C. of A. CIV No. 12/9), where it was held that the mortgagor shall not pass any bonds on the mortgaged property in any way without the written consent of the bank. It was held that the bond holder, which was the bank had every right to sell the property via auction since the debtor (applicant) failed to pay his instalments.
 It is apparent from the papers that appellant maintained the view throughout these proceedings that rent continued to be chargeable even after default judgment was obtained and the tenant had left the premises. This misconception appears from its attempt to re-issue the writ and in the re-issue, including what is referred to as judgment arrears from 1st November 2011 to 1st August 2013. The allerged arrears amount to M511,052-85. Furthermore, in his heads of argument, counsel for appellant makes the statement that rentals “have escalated up to over M2 Million.”
 It is a mystery how that could be achieved, because once judgment had been granted, the premises reverted back to the landlord. The tenant left the premises and no further agreement was ever concluded. All that happened for the past 8 years or so, was that appellant persisted in the refusal to recognise the 1st respondent’s ownership of the bonded property, but there was no agreement whatsoever on which appellant could rely on to charge rentals to anybody. It would not make sense for appellant to retain the 1st respondents property against its wish and at the same time demand rent from it.
 Indeed, that is why I suggested that the matter could have been resolved a long time ago and without the unnecessary costs. The judgment and executable warrant has remained the same amounts initially granted by the Magistrates Court and could not have increased to reach the wildly inflated figures that appellant now seeks to claim, and besides there is no one from whom those monies are due because the premises have been in the possession of the appellant throughout. That is why, I suppose, the Chief Magistrate referred to 1st respondent’s proposal as a “generous gesture” and the matter should have been resolved a long time ago.
 In the result and for the reasons set out above, this appeal is dismissed with costs.
For Appellant : Adv. B.E. Sekatle
For Respondents : Adv. T.A. Lesaoana
Subordinate Court Rules 1996
Wille Law of Mortgage and Pledge in South Africa
J.T.R. Gibson – South African Mercantile and Company Law (Juta)
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