CIV/A/21/84

IN THE HIGH COURT OF LESOTHO
In the
Appeal of

THABANG SOFE Appellant

v

MPHO MOHAPI & MESSENGER Respondents

JUDGMENT

Delivered by the Hon Mr Justice J L Kheola on the 6th
day of February 1986

The facts of this case may be summarised as follows

In CC 62/83 of Maseru Local Court the appellant sued
Tlholo Sofe who is the elder brother of the respondent for certain
number of
cattle as "bohali" for his daughter who had been
abducted by Tlholo's son. The appellant obtained a judgment in his
favour.
A writ of execution was issued by Maseru Local Court and sent
to Manamela Local Court in the Butha-Buthe district for execution by
the messenger of that court because Tlholo Sofe's home is in Butha
Buthe reserve

The messenger of Manamela Local Court, armed with a
warrant of execution and accompanied by the appellant, proceeded to
the home of
Tlholo and a found two head of cattle He attached them
and drove them to the court and gave them to the court clerk From
there he
went to a place called Maloseng which is some good distance
from the home of Tlholo Sofe and attached and drove away eleven
cattle
from the home of the respondent At the time the respondent
was not at home but his wife was present The animals at the home of
the
respondent were pointed out to the messenger by the appellant who
alleged that they were the property of Tlholo Sofe and hidden there
so as to frustrate the execution of the warrant against Tlholo's
property The eleven cattle were also handed to the court clerk

/The wife

-2-

The wife of the respondent immediately lodged an
informal petition with the Manamela Local Court in which she alleged
that the eleven
(11) cattle seized from her home were the property of
the res­pondent and not that of the judgment debtor (Tlholo). The
Court
Pre­sident heard evidence and found that eight of the
eleven cattle found at the respondent's place were the property of
the
respondent. Three of the eleven cattle were found to be the
property of Tlholo Sofe. This finding was not based on any evidence
that
the three cattle were the property of Tlholo but on the mere
fact that the wife of the respondent

was unable to explain how the respondent had acquired
them. Surely, a

for woman could not be expected to account all the
cattle of her husband

unless there were bewyes for all the cattle Be that as
it may the court president decided that the three cattle found at the
home
of the respondent and the two cattle found at the home of Tlholo
Sofe were the property of Tlholo Sofe and ordered that they should
be
passed to the appellant.

When the respondent came home and found that his cattle
had been taken in execution to satisfy a warrant of execution against
his
elder brother he made an application for an order that the
messenger of court and the appellant restore possession of the cattle
to him The matter was finally ordered to go to trial. The appellant
was ordered to give back to the respondent all the five cattle
given
to him by Manamela Local Court. It is against that order that he is
appealing to this court.

There was overwhelming evidence that the three cows
seized at respondent's home were the offspring of the cows the
respondent bought
in the Republic of South Africa There was
practically no evidence that these three cattle were the property of
Tlholo Sofe, in addition
to that they were not found in the
possession of Tlholo. Possession is regarded by the law with such
significance that a person who
is in possession of a movable thing is
presumed to be the owner of it (MacAdams v. Fiander's Trustee,
1919 A D. 232) The respondent having been found in the

/possession

-3-

possession of the three cows is presumed to be their
owner unless the contrary was proved. There was no such proof.

With regard to the two cows found in the possession of
Tlholo Sofe the respondent alleged that he had loaned them to Tlholo
for the
purpose of milking them The trial court believed him and
ordered that they too must be released to respondent. With respect, I
do
not agree with this decision. The two cattle found in the
possession of Tlholo are presumed to be his property unless the
contrary
is proved. These particular cattle were pointed out by the
chief of Tlholo that as far as she knew they were the property of
Tlholo
She had for a very long time seem them in his possession. No
document had ever been brought to her to show that these cows were
"mafisaed" to Tlholo by the respondent.

I have stated above that the home of the respondent is
very far from the home of Tlholo. They fall under the jurisdiction of
different
chiefs. The law and practice in this country is that if one
man lends (mafisas) his animals to another person living in a
different
village and a different chief a bewys must be issued by the
lender explaining the purpose of the trnsfer of such animals to the
other
person. When such animals arrive in the village of the person
to whom they have been lent they must be shown to the chief of that
village The respondent and his elder brother want this court to
believe that they transferred these two animals without proper
documents.
I do not agree with the lower court that these two animals
belong to the respondent. He has failed to rebut the presumption that
the possessor of movable property is presumed to be its owner.

It was argued on behalf of the appellant that the proper
person to have been sued was the messenger of court and reference was
made
to the case of William Lemena v Thabo Potsane and
another, C.of A. (CIV) No.4 of 1975. In that case it was held
that if a messenger takes goods not in the possession of the judgment
debtor
he does so at his own risk. With

/regard... ....

-4-

regard to the three cows found in the possession of the
respondent I agree that he did so at his own risk. However, it must
be remembered
that those cattle were pointed out by the appellant and
the messenger acted on his word in good faith. The respondent has
sued the
right person who not only pointed out his animals as
Tlholo's property but who is also in the possession of such stock.

The appeal is partly allowed in the sense that the two
cows which

are were found in the possession of Tlholo Sofe are
declared to have been

properly executed in favour of the appellant. The other
three cattle found in the possession of the respondent must be
released to
him (respondent) because they were wrongly attached. I
make no order as to costs.

J.L. KHEOLA JUDGE.

14th April, 1986.

For Appellant - Mr. Monaphathi
For Respondent -
Mr Mofolo