CIV/T/404/84 CIV/T/140/84

CIV/T/42/81 CIV/APN/44/83

IN THE HIGH COURT OF LESOTHO
In the Matter of
:

FREDDY HIRSCH-BIZERBA SCALES (PTY) LTD. Applicant

v

MOFOKENG MEAT COMPANY (PTY) LTD. 1st Respondent
MALEFETSANE MOFOKENG 2nd Respondent

JUDGMENT

Delivered by the Hon. Chief Justice Mr. Justice T.S.
Cotran on the 24th day of September 1984

The applicant in CIV/T/404/84 and CIV/T/140/84 is a
company by the name of Freddy Hirsch-Bizerba Scales (Pty) Ltd. In the
first case
two respondents are cited (a) Mofokeng Meat Company (Pty)
Ltd. and (b) Malefetsane Mofokeng. In the second case the respondent
is
Mr. Malefetsane Mofokeng t/a as Mofokeng Meat Company.

In the first case the applicant had sold goods described
as CD 8315 scale to Mofokeng Meat Company and in the second case the
applicant
sold goods described as W-Wall Scale Prod 010211 to
Malefetsane Mofokeng t/a Mofokeng Meat Co. (Pty) Ltd. The
transactions were on
suspensive sale agreements which provided, inter
alia. that the ownership of the goods would not pass to the buyer
until payment
has been made in full.

The goods have not in fact been paid for in full and in
each case the respondents and respondent respectively have fallen
into arrears
on the instalments, in the first to a relatively small
amount of the outstanding balance and in the second to virtually

/the whole

-2-

the whole of the purchase price.

Action has been instituted in both cases and the
applicant now seeks an order directing the sheriff to attach the
goods and place
them in the High Court premises pending the
finalisation of the proceedings in the two trials.

Now in CIV/T/42/81 the man Malefetsane Mofokeng, a
butcher, has been placed under provisional sequestration and a
trustee appointed
pending the return date.

Now Mr. Gwentse, who is representing the respondent (and
respondents) opposes the applications for attachment of the goods
subject
matter of the suspensive sale agreements. He does not say
that his client is (or clients are) not in arrears, nor does he say
that
the plaintiffs/applicants are not owners of the goods nor does
he say that his clients or clients are not in breach of the
agreement.
His ground of opposition is based on the result of
CIV/APN/44/83 in which on 16th May 1983, the Court found that a writ
of attachment
on the immovable property of Malefetsane Mofokeng
issued out of the office of the Registrar by Mr. Harley representing
a different
Judgment Creditor was, for reasons there given, set
aside. Malefetsane the man, was aggrieved, and he may have had a
cause of action
in respect of a lorry seized and sold by the deputy
sheriff, but the fact of the matter is that he took no action
whatsoever. He
is relying on that ill fated occurrence to resist
actions by other creditors who have no connection with that case at
all.

I decide these two cases in favour of the applicants on
the ground I have attempted to explain above. There is no need to go
into
any matter relating to the provisional sequestration order but I
direct that the applicants/plaintiffs join the trustee in the
provisional
sequestration as a party, and serve

/him

-3-

him with the papers.

In both applications the respondents and respondent
respectively will pay the costs.

CHIEF JUSTICE
24th September 1984

For Applicants : Mr. Harley
For Respondent/s: Mr.
Gwentshe