IN THE HIGH COURT OF LESOTHO In the Application of :
MICHAEL MTHEMBU Applicant
v
DEPUTY SHERIFF)
MAGNETT MATTRESS & CO)
(PTY) LTD Respondents
3. MESSRS. DU PREEZ,LIEBETRAU)
& CO.
REASONS FOR JUDGMENT
Filed by the Hon. Chief Justice, Mr. Justice
T.S. Cotran on 8th day of October, 1980
On Friday the 26th September 1980, after hearing argument, the Court ordered the cancellation of a sale by auction due to be held on the following day of the immovable property of the applicant which was attached by the Deputy Sheriff to satisfy a number of writs of execution issued by his Judgment Creditors Doth in the High Court and the Subordinate Courts. I said reasons will be filed later and these now follow :-
The order sought by the applicant was directed against
The Deputy Sheriff,
Magnett Mattress & Co.(Pty)Ltd, (hereinafter referred to as Magnett) and
(3) Messrs Du Preez, Liebetrau and Co. a firm of attorneys representing Magnett to restrain them from proceeding with the proposed sale on the following ground :-
"That the notice of sale does not sufficiently or at all describe the business premises or immovable property on sites 45 and 46 Pitso Ground Area Maseru Reserve".
Mr. Maqutu succeeded on this ground. It would have saved him costs if he had stuck to it. However he advanced three further grounds to justify cancellation of the sale. I will deal with these first.
/(1) that
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(1) That only Magnet (CIV/T/119/77) obtained a specific Court order of attachment over the immovable property of the applicant and since they have been paid off, they cannot now enforce the sale. The facts appear to be as follows :
On the 4th August 1980 the Deputy Sheriff, who is also messenger of the Subordinate Court at Maseru, served notice on the applicant which reads partly as follows :
"Take notice that I have this day placed under Judicial attachment and will sell immediately as soon as proper advertisements have been made the immovable property comprised in this inventory, being every right and interest in and to the buildings and other improvements on business sites Nos: 45 and 46 Pitso Ground Area, Maseru Reserve, in this district of Maseru, persuance of Warrants to me directed under the hand of the Sheriff of the High Court of Lesotho and under the hand of the Clerk of Court of the Maseru Subordinate Court attached herewith for your information, whereby, I am required to raise of your said immovable property several sums of money reflected in the writs attached herewith and also for various other writs served by Deputy Sheriffs and messengers of Court upon you before".
On the 23rd September 1980, i.e. 4 days before the advertised sale, applicant's attorney (Mr.Maqutu) wrote to the Registrar (who is the Sheriff) enclosing the sum of M306-59 and asked him to add it to another sum of approximately M1500 which was then standing to the credit of the applicant in Court and pay the same to Magnet's attorneys in satisfaction of their writ.
The Registrar replied the same day, with copy to Magnett's attorneys as follows •
"URGENT
Registrar's Chambers, P.O. Box 90, Maseru 100
23rd September 1980
Messrs W.C.M. Maqutu & Co.,
P.O. Box 2172,
Maseru.
Dear Sirs,
re: MAGNETT MATTRESS v. MTHEMBU
I acknowledge receipt of your letter plus the cheque and contents dated 23rd instant.
I regret to point out as I verbally did this morning that you should meet with Mr.Koornhof and agree as to the amounts needed to clear Mr.Mthembu's actual debt.
/"I accept
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" I accept without prejudice your cheque for R306-57 but cannot guarantee that the sale will not go on unless you and Mr. Koornhof agree.
I am sending Mr. Koornhof for his comment a photocopy of your above quoted letter enclosed in a copy hereof.
Yours faithfully,
Assistant Registrar
cc: Messrs Du Preez, Liebetrau & Co., P.O. Box 201, Maseru 100. "
Magnet 's attorneys replied to the Registrar, with copy to applicant's attorney, as follows :
" CIV/T/119/77 ML/LM
Mr.Koornhof/jt
Du Preez, Liebetrau & Co., P.O. Box 201, Maseru.
24th September 1980
The Registrar of the High Court,
P.O. Box 90,
Dear Sir,
Re: MAGNETT MATTRESS/MTHEMBU
We refer to Mr. Maqutu's letter dated 23rd instant and your reply to him of the same date. We are prepared to accept the sum of R1 890.63 in settlement of the above matter.
However, the sale will proceed on behalf of our 42 other writs and those of Messrs. E.G. Cooper and Sons and Mohaleroe, Sello & Co.
Had the Defendant or his attorney gone to the trouble of perusing Mochochonono and Lesotho weekly they would have seen the relevant advertisements.
DU PREEZ, LIEBETRAU & CO.
cc: W.C.M. Maqutu & Co., P.O. Box 1272, Maseru. "
It will be seen from the notice to applicant quoted above
/that he
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(2) That the Deputy Sheriff failed to fix conditions of sale and failed to file same in the office of the Registrar. I have been given sight of copy of these conditions (returned to
Mr. Koornhof) and I have perused the Execution file of the Registrar. The Deputy Sheriff has no separate office and operates from the High Court or the Magistrate's Court, Maseru. The conditions have in fact been filed.
(3) That the advertisements were inadequate in two ways:
(a) that the 2 news papers are Government owned and do not have a wide circulation,
(b) that the advertisements did not state that the sale was for the benefit of other Judgment Creditors apart from Magnet.
I have no evidence about the copies sold of these two newspapers. Lesotho Weekly, which is in English, has probably less circulation than Mochochonono which is in Sesotho. However there are few other papers in Lesotho of which perhaps Moeletsi is the better known, though I am told from the bar that even that paper is not published very regularly. The Sheriff has a discretion here under the first leg of Rule 36(8) and I am not persuaded that he failed in his duty. On (b) I do not think that that was necessary. The notice to the Judgment Debtor made it clear that not only the writ issued by Magnet was to share in the proceeds of sale. In any event a prospective bidder will not have much concern as to whom the purchase price is paid, be it one person or many.
I shall now turn to Mr. Maqutu's first ground viz that the property to be sold was not described with sufficient particularity in the advertisements.
The leading case on the subject is Messenger of Magistrates Court of Durban v. Pillay 1952(3) S.A. 678 which had gone to the appellate division(references to lower court judgments are found in 1951(1) S.A. 259 and 1952(1) S.A. 564), a case which was approved by this Court in Mokotso v. Mojaki and Others -CIV/APN/279/76 dated 2nd April 1977. The difference between those two cases and the one before me is that there the sale had already taken place and the applicants wanted to rescind it whereas here
/the sale
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the sale is about to take place. The principle, however is the same viz, that inadequate description of the property to be sold at an auction in the advertisement may prejudice not only the
Judgment Debtor himself but also the Judgment Creditors. In the words of Van den Heever J.A. at p. 683 and p. 684 :
"To the man in the street it might reasonably convey that a piece of unimproved land situated outside any built up area was going to be sold in execution. The provisions of Rule 40 were conceived in the interest of the Judgment Debtor and Judgment Creditor. Disobedience to its directions may cause the debtor to be dispoiled without a corresponding reduction of his liabilities and satisfaction of his creditors. If thus unlawfully exposed to loss it seems doubtless to me that he can take proceedings to restrain the messenger from selling his property".
Whether landed property, be it vacant, or with buildings on, or a farm, has been described with sufficient detail depends on the circumstances of each particular case. In First Consolidated Leasing Corp. Ltd. v. Theron and Others 1974(4) S.A. 245 for example a farm was advertised for sale but the notice did not mention that it had been planted with trees. It was submitted that affrostation would have added to the farm's value and this improvement should have been stated in the advertisement. Eloff J held the failure to state these attributes did not convey to a prospective bidder that there were probably no such attributes and that the description was good.
With regard to land which has been developed the developments should be particularised sufficiently to convey to the reader what is being offered.
Mr. Koornhof argued:
That the title Deed description of the property was sufficient. The land was not situate in a rural area but in Maseru Town and prospective bidders would be able to check on the improvements.
That the property of the applicant was well known throughout Lesotho.
That the Sheriff had numerous enquiries from wealthy persons who informed him that they may
be prepared to bid up to M200,000 for the property.
It would seem that certificates of registered title to land are issued by the Registrar of Deeds invariably with the words "Each and every right and interest in and to the building
/and other
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and other improvements erected thereon" or words to this effect even though that land may not yet have been improved or developed. In Pillay's case supra, the bare extract from the Deeds Registry was held to be inadequate description. The applicant (and his property) may be well known in Lesotho, but with respect, only to a class, viz, attorneys, counsel, Judges, Magistrates, Registrar, Sheriff, etc.. who came to know this from the numerous civil Judgments pronounced against him, and possibly some businessmen or enterpreneurs who attended an abortive previous sale in execution of the same property a few months ago, but I do not think that Judicial notice can be taken of this.
The inquiries received by deputy sheriff likewise do not prove anything and the tentative thoughts of prospective bidders disclosed to him may have been no more than "kite flying".
The applicant is apprehensive that his property will go for a song. I think that his apprehensions are not entirely unfounded and it is important that a Judgment Debtor should leave this Court satisfied that everything has been done to see to it that his property will fetch a good price. He must also realise that sometimes it is not possible and that Judgment Creditors have every right to expect that the Court will not let them hang on indefinitely. It is true that some have been waiting for the fruits of their Judgment for 2 or 3 years, but having waited that long, another month or two is not likely to hurt too much more. I think Mr. Mthembu should now appreciate that he has reached the end of the road and that unless he can pull out something better than an auction to satisfy all his creditors the end is inevitable.
I direct the Sheriff to cancel this sale and also direct him to hold another sale in the near future. I would have ordered postponement to a definite date but the text of the advertisement. needs changing not only with regard to description but also the name of the Judgment holder.
I make the following suggestion:-
A new notice of sale in execution to be served on the applicant specifying, by an appendix thereto, the writs of execution issued against him that remain unsatisfied.
The advertisement, however, need include the name
of one Judgment Creditor with the words "and others" added thereto.
/8
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The particulars of the property should be more fully described in the advertisement. The text plaintiff's attorneys used in Lesotho Liquor Commission v. Mthembu - CIV/T/2Z52/78 - seems adequate.
The Sheriff should allow ten days between advertisement and date of sale.
Apart from the Lesotho Weekly and Mochochonono, the advertisement should appear in Moeletsi, if this paper is still published, or perhaps on Radio Lesotho.
Any party or the Sheriff may obtain valuation of the property from an appraiser.
I award applicant only half his costs. Settlement of Magnet's writ was nothing but a sham, and the other two complaints were groundless. Too much time was waisted, nearly half the day on these futile arguments,
CHIEF JUSTICE 8th October, 1980
For Applicant : Mr. Maqutu For Respondent: Mr. Koornhof
