IN THE HIGH COURT OF LESOTHO In the
Application of :
PAUL MARE KHORORO Applicant
TANKI FIEE 1st Respondent
LEMENA 2nd Respondent
Delivered by the Hon. Mr. Justice M.P. Mofokeng on
the 28th day of January. 1983.
An urgent application in the following terms was placed
1. That a rule nisi be issued calling upon the 1st and
the second Respondents to show cause on a date to be determined by
Second Respondent should not forthwith
restorepossession to the applicant of the items offurniture
stated in paragraph 5 of the foundingaffidavit.
Second Respondent should not transport back
toTsatsa-le-Moea the goods referred to inparagraph 5 of the
founding affidavit at SecondRespondent's costs.
First and Second Respondents should not pay thecosts
of this application.
the following order was granted:
That a rule nisi issues returnable on the 11th January
1982, calling upon the 1st and 2nd Respondents to show cause why:-
(a) Second Respondent should not forthwith restore
possession to the applicant of the items of furniture stated in
paragraph 5 of
the founding affidavit.
Second Respondent should not transport back
toTsatsa-le-Moea the goods referred to inParagraph 5 of the
founding affidavit atsecond Respondent's costs.
In his founding papers Paul Mare Khororo (hereinafter
referred as the Applicant) deposed, under oath, that he had three
In the said houses he had some items of furniture
(which he listed in Annexures "A" and "C" to his
affidavit). Some of these items he had paid for in full but
others were still covered by the terms of a Hire Purchase Agreement.
He, was employed in the Republic of South Africa and during the
course of that year (i.e. 1981) he "engaged the services of
SEHEHERE MARK, an ageing relative of mine to look after my
homestead," to his site.
On the 6th December 1981 a relative called Malefetsane
Mare arrived in Vereeniging and advised him that "certain Court
have removed the furniture from his place." He
immediately requested leave of absence and left for his home. On his
home he was informed that the second Respondent had attached
his property on the 21st November 1981 and that he had also left a
of execution in a case numbered CIV/T/108/76." His
employee, Sehehere Mare "was a third defendant in that case."
The property which has been attached is his personal
property and that his employee "is not even working and could
to buy the said property."
He states that he was in lawful and undisturbed
possession of the attached goods.
Sehehere Mare in his supporting affidavit states
briefly: That on the 21st November 1981 a warrant of execution was
served on him but as he was not working but a man of
straw, he was unable to pay. However, for his living he works for the
who has left nobody at home. The second respondent attached
the property in the houses of the applicant He protested that the
did not belong to him. He confirms the affidavit of the
applicant which he has read.
The furniture was only removed by the Court Officials
the 5th December 1981 together with keys to certain items of
Malefetsane Mare deposes that he was present when Cour
Officials removed the furniture in terms of a "Court Order He
Sehehere Mare did "in fact tell the officials in the
presence of myself and others" that the houses and the furniture
"was removed" all belonged to the Applicant
He knew "even at that time that Sehehere Mare was
not the owner of the furniture but observed that the High Court
not interested in that aspect of the matter. He says
they did not "verify with" him or anyone present.
He confirms the affidavit of the Applicant in so far as
it concerns his trip to Vereeniging; he also "confirms what has
said by Sehehere Mare regarding attachment."
The first Respondent briefly stated that he was the
plaintiff in a certain CIV/T/108/76 in which he had claimed damages
in the sum
3,000.00 for unlawful arrest and detention against the
present 3rd defendant (Sehehere Mare) and judgment was entered in his
The second Respondent (Deputy Sheriff) says in his
He starts off by saying that he has read the affidavits
of the Applicant and Sehehere Mare. He says that he carried his duty
and the property he attached was as a
result of a writ against Sehehere Mare who is a third
defendant in CIV/T/108/76. It was not the first time he levied
the property of Lebamang Ntisa, Phethang Merafo and
Sehehere Mare who are defendants in the last mentioned case. The
first time that
execution led to CIV/APN/207/79 in which they
"falsely claimed they had no property." The property was
On 21st November 1981 he came to Sehehere Mare with the
chief's messenger Hlabaki Mokanetsbwho represented Petrose
headman. The said messenger showed him Sehehere
Mare's houses and property.He was. shown three houses and furniture.
The latter was
Sehehere Mare said that while the houses were his, the
furniture belonged to his son. He was told that proof of that was
Mare was unable to produce any. He was again told
that the furniture would be fetched after a week and during that
period he could
bring proof that the said property did not belong to
him. He was also informed about interpleader proceedings in the High
If no satisfactory proof was forthcoming or placed before him,
(i. the second respondent) he would remove the furniture.
On the 5th December 1981 the furniture was removed to
Maseru to prepare for a sale in satisfaction of the judgment in
There had been no proof forthcoming as requested.
He says that while it may be true that the table, side
board and six chairs belong to the applicant, he should have
proceeded by way
of interpleader summons so that the representative
of the headman who identified Sehehere Mare's property could be
He says that because he attached the goods timeously
and no action was taken before he removed them he cannot
be faulted consequently he should not be mulcted in costs as he acted
Except for the goods that are on Hire Purchase, there
is no evidence that the rest of the goods so removed
belong to Applicant. At the time the warrant was executed Sehehere
Mare had said he had no home but the headman's
said the place was his. But now applicant says Sehehere
has a place adjacent to his. Sehehere Mare did not say
He requested that the Rule nisi be discharged with
The Applicant has filed what is styled a Replying
Affidavit. The function of this affidavit is to deal
a new matter that the Respondent(s) might have raised in
or their opposition. It is not intended to be a second
bite at the cheery by the applicant. For an example, in Paragraph
AD PARA"3(c) (3) there-is a reference -to a letter
chief mentioning something. This is an entirely new
which Applicant is not allowed to raise at this stage of
There is an affidavit of one Petrose Mohalinyane styled
"Supporting Affidavit." It was drawn on the
29th March 1982
and sworn to the same day. It was served on the
attorneys on the 30th March 1982 and filed with the
on the 31st March 1982. Who sanctioned the filling of
affidavit after the pleadings were closed I do not
There is no explanation as to why this affidavit was
available together with other founding affidavits. I
by Mr. Gwentshe to expunge it from the record and
I have no alternative (in my discretion) but to grant
The affidavit of Petrose Mohalinyane dated 29th March
1982 cannot, therefore, be considered in this judgment. Evidence
cannot be obtained
peacemeal and, as it were, through the back door.
The court must always be fully informed and its consent in these
matters must first
be obtained. Neither can parties come to an
agreement to disregard the law or the Rules of the Court.
There was filed into court, also, a document purporting
to be a Hire Purchase Agreement. It is not an annexure to any of the
before court neither is it accompanied by any affidavit.
Why it was filed, who filed it, is not explained. It shall also be
In fact the endorsement on the Court's cover read:
"Order Struck off the Roll." 29/3/82. The matter was struck
on the 18/5/82. It was again struck on the
19/8/82. Thereafter there was no Rule Nisi. It was
discharged.. (R.T. Morrison (Pty) Ltd v Belle. 1981(1) LLR. 206 at
on 1/11/82 the Rule was "reinstated and re-extended"
The Applicant was not quite open with the Court. He
refers to Sehehere Mare as an "ageing relative" whereas in
is his own father. He says Sehehere Mare's site is
"adjacent to his site." The headman's representative said
But as is now well-known in this country a deputy
sheriff or a messenger never enters a village to execute except when
by the chief or his representative. I have no doubt in
this case that the second Respondent followed this well-established
It is trite law that in an ex parte application that an
Applicant must observe the utmost goodfaith and put before
the court all material facts (per Tebbutt, J.A. in
Lesotho Electricity Corportation v Forrest Construction Company
(Proprietary) Limited. 1979(2) LLR.) It is noticed,
with considerable regret, that many a counsel expects the
applications in such
circumstances i.e. where the barest of facts are
given, to be referred to trial. However, the procedure, initially
preferred by the
Applicant, is meant to be most expeditious. There
are conflicts but the applicant has not called for viva voce
evidence. The matter
must be adjudicated on the papers as they stand.
(Mankowitz v Loewenthal. 1982(3) S.A. 75 (A.D.) at 763A). The facts
in the present
case are not similar to those in the case of Issa v
The deputy sheriff. 1978(1) LLR. Although the goods attached were
belong to another person i.e. the wife of the Judgment
debtor, the remedy sought was to "stop any removal" of her
"pending the decision upon the interpleader."
Whereas in the present case the remedy sought is immediate and is
solely upon the question of possession.
Sehehere Mare asserts that he explained to the second
Respondent that the goods did not belong to him. Malefetsane Mare (be
a relative) only confines himself to the occasion when he
was present. This was on the 5th December 1981 when the goods were
removed to Maseru. He mentions that protestations were made by
Sehehere Mare about the furniture not being his own property. Well,
Sehehere, does not mention anything of the sort. Just to give a lie
to what this gentleman observed: The goods were removed on the
December 1981 and the protestations by Sehehere Mare were made on
that date, but then his affidavit (i.e. Malefetsane) had already
being sworn to on the 3rd December
1981 (ahead of the event!).
In my view so far it cannot be said that the second
Respondent removed Applicant's goods by force, fraud or stealth. It
has not been
categorically denied that Sehehere Mare was not given a
reasonable time within which to prove that the goods did not belong
When the second Respondent served a warrant of execution
on Sehehere Mare that was in pursuance of a Court's Order in
against, amongst others, Sehehere Mare and what was done
pursuant to that writ of execution was prima facie lawful and
so in this matter because the headman's representative
had said the houses and everything in them was the property of
(Makhubelu v Ebrahim. (1947(3) S.A. 155) where it was
held that where judgment was valid at the time of execution,
not avail. Moreover, the courts ought to protect
their Sheriffs and deputies who execute court orders because they do
not fall into
categories of people who take the law into their hands.
They are agents of law enforcement and execution of courts judgments.
The first Respondent is not a spoliatlor in the sense
that he never disturbed anybody's possession of his goods. All he did
invoke the machinery of the law, which all along, refused him
from resorting to self-help. How can it adapt him a spoliator when
does what the law expects of him and the court be asked to mulct him
The Applicant, has made one point quite clear and that
is, the judgment debtor was in possession when the goods were
person who was in physical possession was Sehehere Mare
that is not disputed. If that were so the whole application is
because the person who
should have brought the present proceedings is Sehehere
Mare (Yeko v Qana. 1973(4) S.A. 735 at 739). It should, therefor on
ground alone be dismissed with costs. It is not enough for the
judgment debtor to say that the goods belonged to another person.
that case execution is to proceed and not be defeated by a plea jus
tertii. (See Bruce v Josiah Parkes & Sons. 1972(1) S.A.
The Applicant annexed certain documents, purportedly to
prove his ownership of the goods under review. In the spoliation
such as the present, the question o ownership never
comes into play because in certain circumstance even a thief can
of that remedy. What the remedy protects is possession
and not ownership. (Ngojane v Liphoto & Others. 1980(1) LLR. 51
The raison d'e'tre for the remedy is to prevent persons,
including the true owner, from taking the law into their own hands.
a unique remedy available even against the true owner in favour
of a thief. Another characteristic of this remedy was described
Addleson, J. in Runsin Proporties
v Ferreira. 1982(1) S.A. 658 at 67OF being " a
one. Discretion and considerations of convenience do not
enter into it." I entirely agree.
It is trite law that in applications of this nature the
Applicant has to prove two facts, namely that he was in possession
he had been despoiled of possession by the Respondent. The
policy of the law is spoliatus ante omnia restituenda est. (See
Principles of South African Law, 7th Ed. at 199).
Rule 51(b) reads:
"(b) Where there are conflicting claims as
regards property attached in execution, the sheriff or
deputy-sheriff shall have rights of an Applicant and the execution
involved shall have the rights of a claimant."
This sub-rule reads exactly the same as the latter part
or concluding part of Rule 58(1) of the Rules and Practice of the
Court of South Africa, by Nathan, Barnett and
Brink. The interpretation given to that part of the rule
is that it refers to a situation where a third party claims property
has been attached in execution. In my view, I see no reason why
the same interpretation should not be adopted in dealing with our
sub-rule. The sheriff interpleade is resorted to, then, where a
sheriff seizes or intends to seize goods by way of execution and
person (other than judgment debtor) claims them. The sheriff
initiates proceedings to determine whether the property belongs to
the judgment debtor or claimant. (Rule 51(3) (5) & (6); See also
Jacobs and Others. Supreme Court Practice, 1979 Vol. 1 p. 248).
Finally, the liability of a messenger or deputy sheriff
applying the principles of Roman-Dutch Law was stated by Juta, J.A.
& Another v Amalgamated Agencies Ltd.. 1920 A.D. 218 at
238 as follows:
The position of a messenger who attaches the goods of a
"If he attaches them while in the possession of the
judgment debtor they are presumed to belong to the latter, and the
is not liable to the owner for such attachment.
"If on attachment or thereafter before they are
sold, they are claimed by a third person, his duty is to take put
summons. If he neglets to do so he is answerable to the
owner of the goods.
"If he attaches goods which are not In the
possession of the judgment debtor which belong to a third person, he
does so at his
risk, and is answerable to the owner." (See
Lemena v Potsane & Another 1976 LLR. 106).
The principles are quite clear and practical. The
delivery of a notice called "an interpleader notice" is
because the word "may" is used (Rule 51(1):
"the applicant (sheriff) may deliver a notice ..." The
fails on two grounds, namely, that the wrong person
launched an application for a spoliation order. Secondly, no attempt
to comply with the provision of the Rules of this Court.
For the reasons given above the Rule Nisi is discharged
with costs to the Respondents.
For the Applicant : Mr. Kolisang For the Respondents:
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