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