Arrest suspectus de funga- its object is to ensure that the alleged debtor remains within the jurisdiction of the Court until judgement is given, not to keep him or her in custody until payment of the debt is made -section 18 of the Subordinate Courts Act read with rule 54 of the Subordinate Court Rules 1996-an order for arrest against the debtor lapses where the creditor fails to institute an action for recovery of the debt.
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/124/2020
In the matter between
ASIF NAEEM MAHMOOD 1ST APPLICANT
PAK WHOLESALERS (PTY) LTD 2ND APPLICANT
ZAKHURA BROTHERS (PTY) LTD 1ST RESPONDENT
THE MAGISTRATE MAFETENG 2ND RESPONDENT
CLERK OF COURT-MAFETENG MAGISTRATE 3RD RESPONDENT
COMMISSIONER OF POLICE 4TH RESPONDENT
O/C MASERU CENTRAL CHARGE OFFICE 5TH RESPONDENT
O/C MAFETENG POLICE STATION 6TH RESPONDENT
DIRECTOR GENERAL-DCEO 7TH RESPONDENT
ATTORNEY GENERAL 8TH RESPONDENT
Coram: Banyane AJ
Herbstein and van Winsen; the civil practice of the superior courts of South Africa 3rd edition
 This is an application for review of the proceedings of Mafeteng Magistrate Court under CIV/APN/MFT/06/20. A brief summary of the facts is that;
1.1 On the 20th September 2018, the 2nd applicant (represented by 1st applicant, here after referred to as the debtor) and 1st respondent entered into an investment agreement, in terms of which the investor (1st respondent represented by Mr Ally Zakhura); hereafter referred to as the creditor, agreed to invest the sum of M 1 000 000.00 in the debtor furniture business. This amount was duly deposited into the business account of the debtor on the said date.
1.2 In terms of this agreement, the monthly instalment was fixed at M 27 500.00 to be paid on the 25th October 2018 and the 25th of the following month until 20th October 2020, the date of full and final settlement. A further term of the agreement was that the profit on investment shall be paid on monthly instalments for a period of two years.
1.3 From December 2019, the debtor started to fall behind with payments in accordance with the agreement. This prompted the litigation which ultimately resulted in this review application.
The first appearance
 On the 25th of February 2020, the creditor moved an ex parte application for arrest tanguam suspectus de funga before the Mafeteng Magistrate Court. He sought prayers couched as follows;
a) The periods and modes of service stipulated in the Rules be dispensed with on account of urgency
b) The 2nd, 3rd and 4th respondents be directed to apprehend 1st respondent (debtor) and bring him before the honourable court so that he may be dealt with according to Law
c) The 1st respondent be committed to prison until he pays M 1 587 500.00 owing to the applicant and/or furnishes security of the same value
 According to the founding affidavit filed in support thereof, the debtor last paid instalment in December 2019, did not pay rent for business premises rented to him by the creditor, had removed all furniture from his businesses in Mohale’s hoek, and Mafeteng and had sold his other business in Qacha’s nek.
 It is averred further that, the debtor is a national of Pakistan who is just in Lesotho for business and having closed his business operations, he has no tangible assets in the country which may be attached if he absconds. The creditor averred as follows at para 5.2 of his affidavit;
“I may wake up one day to find the 1st respondent to have sold all his businesses like he is already doing, finding myself with a business loss in my investment, without any hope of recovery”
 A rule nisi was issued, returnable on the 27th February 2020 in terms of the prayers set out at para 2 above which were all to operate with immediate effect as interim relief.
 Following the granting of the order, the debtor was arrested by the police at the investor’s house, to which he was invited, purportedly to discuss his occupancy of the Mohale’s hoek Business premises, in respect of which rent was owing. This was on 01/03/2020.
 On the 3rd and 04th March 2020, advocate Thamae and advocate Monate on behalf of the creditor and debtor respectively, appeared before the Magistrate. Crucial is the minute of the 4th. It is fairly brief and I reproduce it;
“ …by consent they have reached a form of settlement and 1st respondent has made some payment to the satisfaction of the applicant and they have further agreed that prayer 1 (b) and (c) of the application that were operating as interim relief be suspended and the Rule in other prayer that is operating be extended pending compliance by the 1st respondent be extended to the 16/11/2020.
Court; Rule is extended to the 16/11/2020 as agreed above-mentioned”
 On the 30th March 2020, Advocate Thamae for the creditor appeared before Court. What transpired is recorded as follows;
“…he indicates that the respondent no longer complies with the terms of the agreement that led to the suspension of certain prayers that were granted as the interim order hence they are before court to request that the rule be reinstated as granted on the 03/03/20(sic)
Court: the interim that was granted on 25/02/2020 is reinstated and the Rule is made returnable on the 06/04/2020.”
The review application before this Court
 On the 08th April 2020, the debtor (as applicant) filed and moved this application. He seeks relief couched as follows;
 A rule nisi was issued in terms of prayers 1(a) and (c) and made returnable on the 10th April 2020.
 The application is opposed by the 1st respondent only. In his answering affidavit filed on the 13th April 2020, two preliminary points are raised; viz; abuse of Court process and material non-disclosure.
Abuse of Court process
 It was argued on behalf of the 1st respondent (creditor) that the debtor was arrested and released on 03/04/2020 but only approached the Court ex parte, five days later, when there was no longer any threat of arrest.
 This point should quickly be disposed of. Rule 8(4) of the High Court Rules requires that an ex parte application be moved two days after filing with the Registrar. In casu, the papers were filed on the 08th April 2020 and the application was moved on the same day. However, in view of the impending deprivation of his liberty authorised by the Court below, which as will become apparent later in the judgement, is unsustainable, I condone non-compliance with this rule and find that, by proceeding on urgent, ex parte basis under such circumstances, the applicant cannot be guilty of abuse of Court Process. At any rate, no prejudicial order was granted against the first respondent.
 It was argued that the applicants failed to disclose that they did not oppose the application at Mafeteng hence they were not notified when the application was moved on the 30th March 2020. This aspect is not material to the determination of the issues before Court nor can influence the granting or otherwise of any order in these proceedings. This point, similarly falls to be dismissed. In any case, in Makoala v Makoala C of A (CIV) 04/09, it was stated that Non-disclosure is not a proper point to be raised in limine.
I proceed now to the merits of the application.
Grounds for review
 The applicant’s case on review as distilled from his founding affidavit, is premised on the following grounds;
 As to the 1st and 2nd grounds, it was contended on behalf of the applicant that the claim is a commercial dispute and falls for adjudication in the Commercial Court; that the amount involved exceeds the monetary ceiling of the Magistrate Court, and therefore the Magistrate Court lacked jurisdiction to hear the claim.
16.1 With regard to the 2nd ground, it was argued that, the Magistrate, who issued the impugned order acted ultra vires the Judiciary; South region circular No.1 of 2020, Public Health (COVID 19- regulations 2020), declaration of the state of emergency Legal Notice No.26 of 2020 by performing his judicial duties and issuing the impugned order because he was not supposed to be working during the lockdown period.
16.2 Regarding the 3rd ground, Advocate Lephuthing for the applicant argued that the learned Magistrate’s order of payment of M 1 587 500 is an order ad pecuniuam solvendum and cannot be enforced by an order for committal to prison.
16.3 On reinstatement, he contended firstly that the order suspending the 27th February 2020 Rule was granted by consent of the parties and its enforcement should be by contempt of Court proceedings; secondly that; it was granted without giving the applicant an opportunity to be heard, thirdly that; the procedure of arrest suspectus de funga was an inappropriate step in this matter because the respondent could have attached the trading stock at the applicant’s business premises to found Jurisdiction, instead of invoking the arrest procedure.
 On behalf of the respondent, the Creditor, Advocate Thamae argued on the basis of section 28 of the Subordinate Courts Act, 1988(as amended) and clause 10.2 of the Parties’ Agreement (consenting to the Jurisdiction of the Magistrate Court), that, the Mafeteng Magistrate Court is competent to hear the creditor’s claim. Further that Courts were still operational during the lockdown period.
17.1 On reinstatement of the order, he contended that there was no need to notify the debtor about the application because he did not file any papers opposing the initial application and as such, the creditor was justified in seeking the impugned order before the Court below.
17.2 He contended further that the review application was prematurely filed since the matter is still pending before the Magistrate Court and the applicant could have opted to oppose the matter or anticipate the return day.
 The dispute between the parties revolves around breach of contractual obligations and remedies available to the creditor for recovery of a debt.
 The main issues that arise for determination are;
 It is imperative to first address important aspects about the nature, purpose, and procedure for arrest tanquam suspectus de funga, all of which have a bearing on the determination of the identified issues.
Arrest tanquam suspectus de fuga
 It is a relief available to a creditor who on reasonable grounds suspects that a debtor against whom he has instituted an action or intends instituting action for the recovery of the debt, is about to remove from the jurisdiction of the court in order to escape responsibility for the debt. (Herbstein and Van Winsen: the Civil Practice of the High Courts of South Africa, 3rd edition p113). It is available at common Law as well under statute. Relevant in this application is section 18 of the Subordinate Courts Act 1988 read with rule 54 of the Subordinate Courts Rules 1996. In the High, it is provided under Rule 7.
 Section 18(1) of the Subordinate Courts Act provides;
Subject to the limits prescribed by this order, the Court may grant against persons and things, orders for arrest tanquam suspectus de funga, attachments, interdicts and mandament van spolie.
18(3) no order of persona arrest tanguam suspectus de funga… shall be made unless;
 In interpreting a similarly worded provision, i.e section 30 in the Magistrate Courts Act of 1944,whose constitutional validity was challenged in Malachi v Cape Dance Academy International (Pty)Ltd and Others 2010(6) SA 1(CC), the South African Constitutional Court stated that the purpose of this arrest is to stop an alleged debtor from fleeing the country with an intention of preventing the adjudication of the dispute within it; that the object of the arrest “is to enable the plaintiff to obtain a judgment against the defendant, not to keep him or her in custody until payment is made”.
At para 20, the Court remarked as follows;
An order in terms of this section must be aimed at the debtor who: (i) allegedly owes the creditor at least R40 excluding costs; (ii) is reasonably believed to be about to leave the Republic, but not one who appears to be leaving one part of the country for another; and (iii) intends leaving permanently and whose departure is imminent. Furthermore, the creditor must appear to have no, or insufficient, security for the debt.
At para 21, it stated;
The impugned provisions empower a Magistrate to issue an order for the arrest of a debtor even though the debtor’s liability has not been acknowledged or proven in a court of law. Peté et al describe arrest tanquam suspectus de fuga as follows:
“In a situation where a debtor owes money to a creditor, who holds no security for the payment of the debt, and there are reasonable grounds for believing that the debtor is about to leave the country in order to avoid paying creditors, the creditor may make use of a procedure known as arrest ta[n]quam suspectus de fuga. This literally translated, means ‘an arrest as if being suspected of being a fugitive’. The purpose of the procedure is to prevent a person against whom a creditor intends to institute, or has already instituted, an action, from fleeing from the jurisdiction of the court, with the purpose of avoiding or delaying payment of the claim. The object of the arrest is not to force the debtor to pay the claim. The object is to ensure that he remains within the jurisdiction of the court until the court has given judgment in the matter. The phrase generally used is to ‘abide the judgment of the court’. Of course, if the debtor gives sufficient security for the claim, it does not matter if he leaves the country.” (Footnotes omitted.)
 In our Jurisdiction, the procedure to be followed in the Subordinate Courts in applying for the order of arrest, is set out under Rule 54 of the Subordinate Court Rules 1996. Rule 54(1) provides that an application for an arrest tanguam suspectus de funga may be made ex parte and such application shall be on affidavit.
 54(4) (b) provides that an order made ex parte for the arrest of a person shall;
 In terms of Rule 54(9), an order made ex parte shall ipso facto be discharged upon security being given by the respondent for the amount to which the order relates, together with costs.
 It is obvious in Rule 54(4) (b) (ii) that an action for payment of the alleged debt should be independent of the application for arrest. In other words, where an application for arrest is made, an action for recovery of the debt should be instituted within two days, if it had not been instituted at the time of the application for an order of arrest. In this case this did not happen. The respondent merged the claim and the application for arrest in one application. This is my view was irregular because, firstly; the claim should be proved by evidence in the trial of the action and the arrest procedure only secures attendance of the debtor for purposes of hearing the creditor’s claim in the action so instituted; secondly, the inquiry in the arrest application should only be confined to the question whether the alleged debtor is about to flee from the country in order to evade adjudication of the claim instituted or to be instituted against him and not extended to the validity or otherwise of the claim. Thirdly; the procedure in the subordinate courts is not identical to the High court procedure under rule 7(10) in terms of which the writ of arrest and the accompanying affidavit stand as a combined summons and declaration in the action.
 It follows therefore that the learned Magistrate committed an irregularity by granting a defective application tantamount to a judgement for the amount claimed without production of any evidence. I say this because, the order of imprisonment in default of payment has the effect of enforcing an order for payment of money through imprisonment. There is no doubt that this order is not only prejudicial to the debtor, whose extent of liability had not been established by evidence, but also defies the very nature and purpose of the relief of arrest tanguam suspectus de funga. Indeed, as correctly pointed out by applicant’s counsel, orders ad pecuniam solvendum are enforced by issuance of a writ of execution, not imprisonment.
 Herbstein and van Winsen; the civil practice of the superior courts of south Africa 3rd edition at 653 deal with types of orders and their enforceability, as follows;
“…orders of court are generally speaking divided into orders ad pecuniam solvendum (i.e orders to pay a sum of money) and orders factum praestandum (i.e orders to do, or abstain from doing a particular thing. Where an order is for payment of money, it is enforced by issuing a writ of execution against the judgement debtor in terms of which if the judgement debtor does not pay the amount specified in the writ, the judgement debtor’s property can be attached and sold in execution.
Where however, the respondent or defendant has been ordered to abstain from doing a particular act and intentionally fails or neglects to comply with the Court order, the order of court is enforced by committing the respondent or defendant to prison until he complies with the court order. Lesotho Girl Guides Association v Unity English Medium CIV/ APN/5/94
 The learned Magistrate committed a further irregularity by reinstating this order because no new set of facts were established by the creditor to support the re-arrest request in March. The need for new facts is based on two considerations; firstly, the applicant remained in the Country despite the allegations of his intended flight in February and his knowledge of the creditor’s intended action. This in my view is indicative of zero intend on his part to flee from the Country in order to escape adjudication of the creditor’s claim; secondly; there was(still is) restriction of cross-border movement due to lockdown regulations in force both in Lesotho and South Africa, rendering fleeing highly unlikely, if not impossible.
 Another notable procedural aspect is the payment of some undisclosed amount by the debtor after his arrest as reflected on the minute of the 2nd appearance. This payment apparently influenced the suspension of the order granted on the 25th February 2020. Both counsel say it was “part payment”. The purpose of paying this undisclosed amount is not clear from the pleadings of both parties. Whether this was security paid in terms rule 54(9), in which case, the order of arrest ought to have been discharged, remains unclear. Regrettably the minute of the Magistrate does not reflect the details of the agreement which led to the suspension of the order of arrest.
 The above factors are a reflection that the proceedings in the Court below were riddled with glaring reviewable irregularities. These on their own warrant the setting aside of the proceedings without addressing the other issues raised. However, the importance of some of the issues raised in this application requires that they be addressed. I therefore proceed to consider them. The first is the jurisdiction challenge.
Conferment of Jurisdiction by consent of the parties
 As indicated earlier, it was argued on behalf of the applicant that dispute between the parties is of a commercial nature and therefore falls for adjudication in the commercial Court.
 In favour of the respondent, reliance was placed on jurisdiction conferring clause in the parties’ agreement. This is clause 10.2. It reads;
“with respect to any suit, action or proceedings relating to this agreement, the parties irrevocably consent and submit to the jurisdiction of Lesotho Magistrate’s Court’’.
 It is my considered view that the dispute between the parties arise out of a commercial or business transaction between them. Rule 10 of Commercial Court rules 2011 sets out the business of commercial Court as comprising all actions arising out of or connected with any relationship of a commercial or business nature, whether contractual or not, and include among other things; a business contract.
 The Magistrate Court’s jurisdiction is circumscribed by its monetary jurisdiction specified under section 17 as amended by Section 3 of subordinate courts, (Amendment Act) No. 6 of 1998. It is limited to M 25 000.
 The conclusion to which I have come, that, there is not action filed in the Magistrate Court, means the Jurisdiction issue will be addressed in the light of the question whether the creditor can invoke anyone of the remedies detailed under paragraph 7 of the parties’ agreement before the Magistrate Court. This clause entitles the creditor to;
 Section 28 of Subordinate Courts Act of 1988 provides that;
“Subject to section 29, the Court shall have jurisdiction to determine any action or proceeding otherwise beyond the jurisdiction if the parties consent in writing thereto”.
 In Mapiloko v Fragmar (Pty) Ltd C of A (CIV) 42 of 2017, the Court dealt with jurisdiction conferring clause in a sublease agreement and an argument to the effect that in terms of the agreement, the court with jurisdiction was the Magistrate Court was raised. The Court held that parties have no capacity to clothe the Magistrate’s Court with exclusive jurisdiction over their matter; that the unlimited jurisdiction of the High Court under section 119 of the Constitution read with section 2 of the High court Act can only be ousted by a statute provided that such statute would not offend the above quoted constitutional provision.
 In Venetta Mineraria Spa v Carolina Colliers (Pty) Ltd 1987(4) SA 883 at 891. It was held that parties cannot be agreement confer upon any Court or judge coercive Jurisdiction which the Court does not by Law possess. The following passage in Ueckermann v Feinstein 1909 TS 913 at 920, was quoted (at p 891).
“ …apart from the statute, the common law of Holland undoubtedly recognised the doctrine of prorogation of jurisdiction- that is, that jurisdiction might be conferred or extended by consent of the parties so as to enable the Court to deal with the dispute which, apart from such consent, it would have had no jurisdiction to entertain. And that prorogation of jurisdiction might take place in regard to inferior as well as superior courts is clear from what Voet says at 2.1.15. Some of the authorities favoured a very wide application being given to the doctrine of prorogation. But I think it must be recognised as settled Law in south Africa that there can be no prorogation in regard to cases where the court has no authority at all to adjudicate upon the subject matter of the dispute; because in such cases, the matter at issue being a Law outside the Cognisance of the Court, the consent of the parties cannot confer coercive Jurisdiction upon the court, which the Law expressly deny to it”.
 As I stated earlier, the dispute between the parties pertains to a commercial transaction involving an amount far beyond the Jurisdiction of the Magistrates’ Court. The agreement between the parties, cannot confer on the Magistrate Court, power to deal with disputes that fall within the ambit of commercial disputes justiciable before a Court specifically established to deal with such disputes. Section 28 should not in my view be interpreted to mean that, by agreement, the parties are entitled to encroach into the Jurisdiction of a specialist Court by choosing the Magistrate Court as the forum to adjudicate a dispute arising out of their agreement.
I proceed to address now the last issue
Legality of the order granted by a Magistrate other than the Magistrate on duty during the lockdown period
 The applicant seeks, as one of the reliefs, an order declaring the proceedings during the Lockdown as inconsistent with Judiciary South Region Circular No. 1 dated the 26th March 2020 because in terms of this directive, only chief Magistrates were on duty during this period.
 This relief is simply untenable. The fact that administrative institutional arrangements may have been made to realize the Government measures such as “stay at home”, which are aimed at or designed to avoid unnecessary interaction among people in order to curb the spread of COVID 19 does not detract from the judicial power vested in individual judicial officers in terms of the Law. Institutional arrangements are not cast in stone nor the Law. The validity of Proceedings and orders granted by judicial officers not named in the circular cannot therefore be impugned on this basis. In other words, the excise of legally conferred judicial powers will not be rendered nugatory by such arrangements.
 Lastly, the applicant also sought and order declaring the agreement between the parties as unenforceable and that the interest charged on the loan in violation of the in duplum rule. The determination of these matters lies not in this court but the Commercial Court wherein the amounts that have been paid, the interest due, and the balance will be interrogated on the basis of evidence to be presented by the parties.
 In the premises, the application for review partially succeeds as follows; only prayer 2 of should be granted. Prayers on sufficiency of security, enforceability or otherwise of the contract, and the chargeable interest as requested under prayers 3, 4 and 5 respectively, as well as prayer 6, cannot succeed for reasons outlined above.
 In the result, the following order is made;
For Applicants: Advocate Lephuthing
For 1st Respondent: Advocate Thamae
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