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 restrainedfrom 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 torestore the goods attached per CIV/T/538/84,prior to execution of a unit pursuant toCIV/T/538/84;
(c) The second and third respondents shall notbe ordered to account for the missing (ifany) goods which were in their custodypursuant to CIV/T/538/84;
/(d) The ...
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(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 furtherand 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 ...
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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 ...
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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 ...
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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 .....
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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 theRegistrar 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 ...
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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 itprays for an order for costs against meand abide the decision of this HonourableCourt.
3. I have never been requested by the Applicantto release the goods."
/That is ...
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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 ...
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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