CIV/APN/47/87
IN THE HIGH COURT OF
LESOTHO

In the matter between:

ZAKHURA BROTHERS (PTY) LTD Applicant and

1. TELEVISION & ELECTRICAL

DISTRIBUTORS 1st Respondent

2. THE MESSENGER OF COURT 2nd Respondent

3. HARLEY & MORRIS 3rd Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice Sir Peter Allen on the
25th day of September, 1987

On 25 February 1987 an Interim Court Order was made by
Kheola Ag.C. J. (as he then was) calling upon

the respondents to show cause why:-

(a) The third respondent shall not be restrained
from
removing and selling in execution

applicant's attached property per CIV/T/538/84 pending
the outcome of this application;

(b) The first respondent shall not be ordered to
restore
the goods attached per CIV/T/538/84,
prior to execution of a unit
pursuant to
CIV/T/538/84;

(c) The second and third respondents shall not
be
ordered to account for the missing (if
any) goods which were in
their custody
pursuant to CIV/T/538/84;

/(d) The ...

- 2 -

(d) The first respondent shall not be ordered

to desist in the practice of unjust enrichment;

(e) The respondents shall not pay costs hereof,
in
the event of their opposition hereto;

(f) The applicant shall not be given such further
and
or alternative relief.

The prayer in (a) above was to operate as an interim
interdict.

My initial reaction to this application was that it
should have been made on the same file as the original trial action.
However,
it appears that the file CIV/T/ 538/84 has gone missing from
the Registry which is, in itself, a suspicious fact.

The judgment in that suit was delivered on 12 November
1985 by Levy Ag. J. and the respondents have supplied a photocopy of
that judgment.
The first res­pondent was the plaintiff and the
applicant was the defendant in that case.

Apparently what happened was that, in August 1984,

a lorry load of electrical goods had been consigned by
the plaintiff to various customers in Lesotho. The lorry broke down
near Mafeteng
and the driver went into Mafeteng where he met Mr.
Zakhura, the director of the defendant company (present applicant).
The two of
them then arranged for the driver to sell the goods on the
lorry for cash to Mr. Zakhura.

The deal was clearly unlawful and the Judge found that
the driver sold the goods without the authority of the
plaintiff/first respondent.
No attempt was made

/even to ...

-3-

even to contact the consignees and ask them to arrange
to collect the stranded goods. It is difficult to un­derstand
just how
the driver and Zakhura thought they could get away with such
an obvious conversion and fraud. However, that was a matter that
could
easily be dealt with by the trial Judge.

The matter which gave rise to the present problem was
the claim in that action. As the Judge remarked:

" The normal action that one would have expected to
have been brought by the

plaintiff on these facts is one for the recovery of the
goods or alternatively for payment of damages for any depreciation in
value
of the goods or as may have been lost before their recovery by
the plaintiff."

This was particularly so because the plaintiff had in
September 1984, by means of an urgent application, secured an
attachment order
to protect the goods in question pending the outcome
of the action.

For some unknown reason the case then went off the
rails. An action was substituted merely claiming the value of the
goods allegedly
stolen, just as if those goods were not recoverable.
This was strange because the Deputy Sheriff (second respondent) had
already
taken custody of the goods on the Court's order. Thus the
action proceeded merely on the monetary claim and there was no
provision
for the disposal of the goods under attachment, Clearly
that point should have been clarified and dis­posed of at the
time when
the plaintiff's claim was

/simplified ...

-4-

simplified and reduced to a monetary claim.
Unfortunately this was not done.

At the pre-trial conference the parties'
re­presentatives agreed to shorten the proceedings by dispensing
with all the evidence
except with regard to whether or not the driver
had authority to dispose of the goods.

Having held that the driver had no such authority Levy
Ag.J in his judgment went on to say:

" I must accept what is contended by

counsel for the plaintiff that it is an implied term of
this agreement as con­tained in the pre-trial minute that if the
Court
finds that the driver had no authority then the goods must be
returned to the defendant who must pay for them; and equally if the
Court finds that the driver did have authority then the goods remain
the property of the defendant, and the action be dismissed with
costs."

Quite clearly, if this most peculiar arrangement

existed before the trial commenced, then there was no
need for the goods to have remained in the custody of the Deputy
Sheriff, or
indeed to have been attached in the first place. It was
certainly something that could easily have been sorted out at the
time,
before the trial, and not brought up to cause a headache two to
three years later.

Since, whichever way the case was decided, the goods
were apparently to go to the defendant, I fail to understand why Mr.
Nthethe
for the defendant (now the applicant) did not then
immediately take steps to have

/those goods ...

-5-

those goods removed from the custody of the Deputy
Sheriff. This could have been done immediately after judgment was
delivered in
November 1985, if it had not been done before the trial.
Why wait for so much time to pass before filing this Notice of Motion
in
February 1987?

Mr. Nthethe several times emphasised that he was asking
for a decision that would be equitable to all parties. But among the
better
known maxims of equity

is that "delay defeats equities" and "equity
aids the

vigilant."
And, further, considering just how the

applicant originally came into possession of the goods,
another maxim that is pertinent is, "He who comes into equity
must come
with clean hands."

The next point concerns the last part of Levy Ag.J's
judgment. Having given judgment for the plaintiff in the amount of
the value
of the goods, he added this last sentence:

" The goods which are under attachment in

the hands of the Deputy Sheriff of this Court will be
released forthwith to the defendant."

According to Mr. Harley, for the respondents, that
judgment was already typed and was handed down in Court. There should
therefore
have been no problem about using it to execute judgment
forthwith. Instead of doing this counsel for the applicant (then
defendant)
drafted and had signed by the Registrar two days later a
so-called "Court Order" directing that the Deputy Sheriff
"releases
and returns to the Defendant herein certain goods
which were attached per order in CIV/APN/

208/84
as reflected in the schedule attached hereto."

/Mr. Harley .....

-6-

Mr. Harley has complained that the above order was
different from that made by the Judge in his judgment because the
Judge only ordered
the Deputy Sheriff to "release" the
goods to the defendant. He did not order him to "return"
them. Mr. Nthethe
conceded that his drafted order was "not quite
identical" but he submitted that "the discrepancy was
immaterial"
and that it was "a minute oversight".

Clearly the Registrar ought not to have signed the order
without first being satisfied that it coin-

cided exactly with the contents of the judgment. Counsel
should also have taken more care to draft it accurately and in
accordance
with the judgment. I do not agree that the discrepancy
was either minute or immaterial. The Judge did not order the Deputy
Sheriff
to return the goods to the defendant. It was for the
defendant to go to him and collect and remove them after they had
been released
to him. Neither counsel nor the Registrar has any
right or business to interfere with

or
to modify the wording of a Judge's order without

first
consulting the Judge.

If it is felt necessary to draw up such a "Court

Order" then it would be advisable for both counsel
to

agree on the wording of it before presenting it to
the
Registrar for signature.

In para 8 of his Founding Affidavit Mr. Zakhura, on
behalf of the applicant company,deposed that:

" The 2nd Respondent failed to release the goods to
me and during or about the 6th February, 1987, some of the goods were

released to me "

/It is ...

-7-

It is not very clear what this was supposed to mean. He
did not say that the Deputy Sheriff ever re­fused to release the
goods
nor how the Deputy Sheriff "failed" to release them.
Mr. Zakhura did not say that he had ever tried to collect the goods
before February 1987. There is nothing to show that the D/Sheriff was
in any way negligent or reluctant with regard to re­leasing
the
goods.

Mr. Nthethe explained that, when the goods were attached
in September 1984, the D/Sheriff had no storage space and so they
were stored
on the premises of Maluti Irrigation in Maseru. Whether
that was so or not they were still in the custody of the D/Sheriff
and only
he could be held accountable for their safe keeping.

One might have expected that matters concerning the
location of the goods, and the original inventory of them, and the
list of those
goods eventually released to the applicant, would all
have been dealt with and

explained in the affidavit of the second respondent, the
D/Sheriff. His affidavit consists of only six lines as follows:

" 1. I am the Deputy Sheriff of the High Court of
Lesotho and the Second Respondent in the abovementioned matter.

2. I oppose the application insofar as it
prays for
an order for costs against me
and abide the decision of this
Honourable
Court.

3. I have never been requested by the Applicant
to
release the goods."

/That is ...

—8—

That is it entirely. The only useful information
emanating from it is that the applicant did not request the release
of the goods.
If this is so, and I see no reason to disbelieve it,
then, as I have already pointed out, the applicant is responsible for
the long
delay in this matter and equity is against him. Furthermore,
it would be unrealistic to assume that the goods are now in the same
condition that they were in three years ago.

In the Notice of Motion and in para 11 of Mr. Zakhura's
Founding Affidavit there are accusations that

the first respondent company is unjustly enriching
itself in connection with the attached goods. I am unable to see how
this can
be. The goods were attached by the Deputy Sheriff and held
by him on the Court's order. The first respondent has no control over
them and the alleged "probability" that the goods are in
the possession of the first respondent has no factual basis or
proof.

According to para 10 of Mr. Zakhura's Founding Affidavit
it would appear that he has included the first respondent's attorneys
in
this action and joinded them as third respondent because they were
proceeding to execute the judgment in the original trial
(CIV/T/538/84).
Just how that can be an actionable wrong is beyond my
comprehension. The successful party is obviously entitled to enforce
judgment
and it would be absurd to sue him or his legal
representative for so doing. I find no jus­tification for
bringing this action
against either the first or third respondents.

As for the second respondent, the D/Sheriff, he was

merely
required to comply with the orders of this Court;

first
to attach the property and then to release it to

/the
defendant ...

-9-

the defendant/applicant. There was nothing to sue him
about. The order for him to release the goods to the defendant was
made by the
trial Judge in his judgment. This was a final order of
the Court, more especially as it was not appealed against. Thus it
must stand.
It is unnecessary for me to make any order in addition
to or modifying that judgment and, indeed, it would be improper to do
so
in these circumstances, and I shall not do so. If the unnecessary
and unconscionable delay of the applicant company has caused it
problems or em-barrassment in this matter of recovering the goods,
the

equity that Mr. Nthethe has so vigorously called down
will not encourage me to step in. But in any case I find that there
is no good
reason to do so.

Accordingly this application is dismissed with costs and
the rule nisi is discharged.

P.A.P.J.ALLEN JUDGE

25th September, 1987

Mr. Nthethe for Applicant
Mr. Harley for Respondents