CIV/APN/38/86

IN THE HIGH COURT OF LESOTHO
In the
Application of

FORTUNE ENTERPRISES (PTY) LTD Applicant
v.

KHALI, DLAMINI & PARTNERS 1st Respondent
E
M KHALI 2nd Respondent

B.S DLAMINI 3rd Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice J L. Kheola on the
24th day of February, 1986

This is an application for the sequestration of the
estates of the respondents. The second respondent is the managing
partner of the
first respondent.

It is common cause that first respondent is truly and
lawfully indebted to the petitioner company in the sum of R11,900-00
together
with interest thereon at the rate of 11% per annum from the
25th July, 1985, in respect of a judgment by this Court in favour of
the petitioner company on the 19th August, 1985 in a civil case No
CIV/T/499/85. The taxed costs in the above-mentioned case amount
to
R272-01. A warrant of execution has been issued.

It is also common cause that apart from the first
respondent's indebtedness to the petitioner company, it is indebted
to the following
creditors who have obtained judgment against first
and second respondents and who have issued warrants of execution in
respect of
those judgments

CIV/apn/275/83- N. Khali - R 1,208 - 61

CC, 1315/85- Lesotho Building Finance Corp. - 5,348 - 38

CIV/T/513/85 - A R. Abubaker - 1,082 - 51

CC. 1179/85 - Panorama Motors - 986 - 45

CIV/T/251/85 - Lesotho Bank - 80,170 - 89

CIV/T/175/83 - Ernest Campos & Partners - 4,839 - 25

/The petitioner.... .

-2-

The petitioner company has attached warrants of
execution in respect of its debt and the debts of the creditors
mentioned above.

Two deputy-sheriffs of this Court who are also
messengers of the Magistrate's court have filed supporting
affidavits. In his affidavit
Mr. W J. Lemena deposes that on the 13th
December, 1985 he and Mr. P Masienyane went to the second respondent
and insisted that he
should make payment of the various warrants of
execution they showed to him, failing which he should point out
sufficient assets
which they could attach in satisfaction of those
writs. He avers that the second respondent became most abusive,
calling them "rubbish"
and he stated that he could never
allow them to attach his or first respondent's assets as long as he
lived He threatened them by
stating that if they continued going to
his place to attach, he would arrange for someone to kill them.

Mr Masienyane has confirmed what Mr. Lemena has stated.
Several returns of service have been attached to confirm what the
deputy-sheriffs
stated in their affidavits.

The second respondent admits that he and first
respondent are indebted to the petitioner company in the sum of
R11,900-00 but he deposes
that the respondents are holding this money
in pursuance of the authority of the petitioner company. Attorneys
for the petitioner
were humbly requested on the 19th February, 1985
to nullify all legal actions undertaken by respondents on behalf of
the petitioner.
He says that as soon as this done he told Mr. Buys,
attorney for the petitioner, that R11,900-00 would be released. I
must point
out that the so called agreement to withhold the money
appears to have been entered into on the 19th February, 1985. The
judgment
in respect of that sum of money was obtained on the 19th
August, 1985 i.e. six months after the so called agreement was
allegedly
entered into. If the second respondent subsequently agreed
to release the money why did he not pay it to the

/deputy-sheriff. ....

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deputy-sheriff whan he was served with a writ of
execution?

On the 11th February, 1986 when this application was
moved before me the second respondent stated that he was prepared to
pay the
sum of R11,900-00 I postponed the matter to the 17th
February, 1986 and advised the second respondent that he must
instruct a lawyer
because his submissions clearly showed that he did
not understand what sequestration was all about Most of what was in
his affidavit
was also irrelevant. On the 17th February, 1986 when Mr
Masoabi instructed by the second respondent appeared before me with
the petitioner's
attorney, the matter was postponed to the 24th
February, 1986 On that date Mr Masoabi did not appear and Mr.
Koornhof informed the
court that Mr. Masoabi had telephoned him that
morning that he would not be appearing. 1 then granted the order of
sequestration
as prayed in the Notice of Motion. I was convinced that
the second respondent is playing delaying tactics He had promised to
pay
the money but three weeks after he had made the promise he had
not paid the money. It is very clear that he is unable to pay his
creditors.

Section 8 (b) of the Insolvency Proclamation No 51 of
1957 provides that a debtor commits an act of insolvency if a Court
has given
judgment against him and he fails, upon the demand of the
officer whose duty it is to execute that judgment. to satisfy it or
to
indicate to that officer disposable property sufficient to satisfy
it, or if it appears from the return made by that officer that
he has
not found sufficient disposable property to satisfy the judgment The
second Respondent refused to satisfy the judgments granted
against
him and the other respondents when demand was made to him by the
deputy-Sheriffs. He also failed to indicate to them any
disposable
property to satisfy the judgments.

I have come to the conclusion that the petitioner
company has proved that the respondents have committed acts of
insolvency.

/The order

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The order of sequestration is granted as prayed in the
Notice of Motion.

J.L. KHEOLA

JUDGE.

24th February, 1986