CIV/T/193/84 IN THE HIGHCOURT OF LESOTHO
In the matter of :
WILLIAM LEMENA Applicant
AZAEL SEHLABAKA 1st Claimant
THE SOLICITOR GENERAL 2nd Claimant
Delivered by the Hon. Acting Mr. Justice M.L.,Lehohla
the 15th day of March, 1987
On 11th August, 1986 I made an order authorising the
release of items enumerated in (i) of the Interpleader
Notice' to 1st Claimant. A ruling on the question of costs was
such time that the Court would have had time to
consider reasons for judgment
The reasons appear below.
It appears that on 26th May 1986 my brother Levy
A.J.made an order referring this matter to evidence in terms
ofRule 51(6) and he further ordered the deponents to
allaffidavits filed of record to be examined and
cross-examinedon the issue of ownership of the property claimed
by the 1stClaimant.
Rule 51(6) states that ".If a Claimant delivers
particulars of his claim and appears before the Court, the Court may
(a) then and there adjudicate upon such claim and after
hearing such evidence as it deems just;
/(b) Order ...
(b) order that any claimant be made a defendant in
anyaction already commenced in respect of the subject
matter in dispute in lieu of or in addition to
(c) order that any issue between the claimants be
statedby way of a special case or otherwise and tried, andfor
that purpose order which claimant shall be
plaintiff And which the defendant;
(e) make such order as to costs, and the expenses (if
any) incurred by the applicant under (b) of sub rule (2) as to it
" Where the claims relate to a thing capable of
being delivered the applicant shall tender the subject matter to the
when delivering the interpleader notice or take such steps
to secure the availability of the thing in question as the Registrar
direct. The notice must state whether the thing has been
delivered to the Registrar or describe what steps had been taken with
to its availability."
It should be observed that while acting in terms of
51(6)(a) nothing need have been said with regard to (e) which falls
to be determined
by the Court hearing evidence in following the
ruling made in terms of (a) it would have been beneficial if in the
same order a determination
was made in terms either of (b) or (c) as
to which of the claimants is to be a defendant in lieu of or in
addition to the applicant
in terms of (b) or which claimant
was to be made plaintiff and which the defendant in terms of (c) as
the case may be. See Uniform Rules of Court.
Rule 58 of 1984
by C. J. M. NATHAN AND M.BARNETT sub-rule(6) at 366
reading as follows:
" In determining who should be the plaintiff and
who the defendant the Court should, so far as the known facts permit,
a judicial discretion. As a rule, when the defendant in an
action interpleads, the plaintiff is made the plaintiff in the
and the other claimant is made the defendant." With
regard to a case where the Court found itself unable to make the
and accordingly made a special order reference is made toGreenfield NO vs Blignant & Others 1953(3) S.A. 59
(SR). Needless to repeat my brother Levy A.J. as he then was,
did not make any determination or order as to how the parties are to
in these interpleader proceedings.
The importance of making such an order becomes obvious
when regard is had to the fact that on the basis of Greenfield NO vs
& Others supra each party to the interpleader
proceedings wishes to occupy the position of a defendant whereupon
the onus of establishing ownership rests on the plaintiff,and
if he falls to discharge the burden of proof, the defendant is
entitled to judgment.
This explains the usual anxiety of counsel in
matters of this nature to vie for the position of a defendant in
respect of their respective
clients. However the Court has a
judicial discretion to direct which of the claimants is to be
plaintiff and which the defendant.
Needless to say this discretion
must be exercised in accordance with recognised principles.
The analogy of a sheriff's interpleader may be of use in
explaining considerations from which operative
principles evolve. At 598 of Greenfield N.O. vs Blignant
& Others Quenet J, found as valid the submission that in
" the claimant is as a general rule made the
plaintiff, and the burden of proof rests upon him where the goods
seized were at
the time of seizure in the possession of the judgment
debtor, possession being prima facie evidence of title. If, however,
was in possession at the time of the seizure, the burden
of proof may be upon the execution creditor, thus reversing the
rule, and the execution creditor may be made plaintiff."
In the present proceedings 1st Claimant is Anna
Matseliso Sehlabaka who testified under oath in oral evidence that
she is the daughter-in-law
of Azael Sehlabaka the judgment debtor.
She lives in the same household with her in-laws because she has no
house of her own. She
shares not only the occupation of the household
with her in-laws but the use of some utensils therein and also her
initials. Her mother-in-law is Anna 'Manthabiseng
In her affidavit lst claimant ad para 4 averred that she
is the lawful owner of the following items, forming the subject
one car battery
one coal stove(o) one lounge suit
a glass display stand
a T.V. set
a T.V. stand.
She has attached hire purchase invoices marked "A"
/in respect ...
in respect of the above items with the exception of the
coal stove whose respective invoice she has misplaced.
The importance of the similarity of the 1st claimant's
initials to her mother-in-law'a consists in the fact that the coding
employed by the dealers Lewis and Dan Hands respectively in
their invoices i.e. Annexures "A" "B" and "C"
provides only for initials and surname of a purchaser
and not for full names except surname.
Consequently Mr.Mpopo for 2nd claimant and applicant
argued that the common nature of initials A. M. and the
surname Sehlabaka are being utilised to
purportedly shift the ownership of the property from the wife of the
judgment debtor to that of her daughter-in-law,,
in a bid to evade
execution, and further that the motive to evade execution cannot be
put out of consideration when, because of
the relationship between
the Sehlabakas the natural tendency to seek means of protecting the
property within the family despite
judgment debt cannot be excluded.
But a simple answer to the fear raised by Mr. Mpopo
is provided by claimant 1's mention both in affidavit
and oral evidence that she tried to interpose when the Deputy
came to remove the attached property pointing out that
some of it belonged to her but was brashly told to "shut up"
further warned that "her father-in-law would follow them."
Lemena denies making these utterances. But apart from 1st claimant
these words were heard by D.W.4 'Manthabeleng Lebesa who,works for
the judgment-debtor and her evidence in that regard was not gainsaid
by any question put to her. Hence it becomes conclusive. Needless to
state D.W 5 'Masalang Matamane who works for a different employer
called Nkhabu testified that she heard these utterances and
no attempt in cross-examination was made to test the
truth-fulness of her assertion in that regard or even expose her
Annexure "F" is an inventory dated 5th
November 1985 of at least 23 itemised sets of goods removed from the
In his affidavit Mr. Mpopo made much of the
fact that by virtue of her relationship by marriage with the judgment
debtor, the 1st
Claimant would naturally tend to protect the property
"within the family". In annexure F items 5 and 21 are
If Mr. Mpopo's averment is to hold why does not
Claimant 1 claim one of those radios as hers? Why did not it surprise
she did not claim it. as hers as well. Of course Lemena
says Claimant 1
was not present and that she raised no objection to his
collecting items in Annexure P on 5th November 1985. But in view of,
given by Claimant 1
women who were there on that day coupled with
Lemona's callous indifference to Claimant 1's objection.
his evidence on this point is found utterly wanting in
truth. Referring to Claimant 1 in his evidence in chief he said "we
a woman servant of Claimant 1, Sehlabaka. Another woman came
and helped clean the wardrobes and empty them. I do not know her by
name but by sight only. She, if I am not wrong, is the one
sitting on Mr. Pheko's left hand side. I did not ask her name."
He went further to say "My belief was that all this
property belonged to Azael Sehlabaka. Nobody, claimed any of that
that day." Significantly on that day of
/the removal ...
the removal of the property neither Azael Sehlabaka nor
his wife was present. He went further to say in his evidence in
Claimant claims one car battery, one TV set, one coal
stove, a 5-piece lounge suit, glass display stand and a TV stand. I
are Azael Sehiabaka's items" Yet under cross
examination this is what surfaced:
" When you went to remove items listed the judgment
debtor Mr. Sehlabaka was not there - ? He was not there. So you
items just because you, found them in the house and
yard;- ? Yes.
Nobody pointed them out to you - ? Nobody did on that
day. You did not ask anybody to point them out - ? That is so.
Even these ladies who were there you did not ask them to
point out Sehiabaka's property - ? I did not
You mentioned 2 women but there were about 3 .women -I
do not deny. That is possible.
1st Claimant there and then told you that these items
belonged to her - ? I never spoke to her on that day.
All these 3 women told you this - ? I never spoke to
You said you were removing everything and that judgment
debtor would have to follow you - ? I never said a thing of the kind
Your opinions aside, please give evidence, can yousay
for sure this property i.e. subject matter ofthese proceedings
belongs to judgment debtor - ?Today I cannot say.
Can you deny it belongs to 1st Claimant - ? I cannot
deny." (My. underlinings).
/It also ...
It also surfaced under cross-examination that the
Solicitor General now Attorney General is the 2nd Claimant because
Lemena said the
property belonged to judgment debtor and that 2nd
Claimant's claim is based on Lemena's opinion. The text goes as
" 2nd Claimant's claim is based on your opinion - ?
Yes because I told him that I believed they belonged to him.
That then shows you have an interest - ? No
Is it true that 1st Claimant's attorney wrote you saying
the property shown is hers - ? Yes a letter of that nature was
And you refused to release them basing yourself on the
fact that the property belonged to judgment debtor - ? I did not
refuse to release it.
Did you release it - ? I did not but thought the
interpleader summons should operate.
You thought interpleader summons should be invoked - ?
After receiving that letter from 1st Claimant did you
verify your opinion in the light of the attorney's letter - ? I tried
to verify my opinion.
What did you find - ? I found it difficult to believe
that the person claiming the property could be correct.
What was your verification - ? That items were judgment
It is not the belief of 2nd Claimant but yours - ? I do
not think it was mine. It was the belief of us both."
/Of significance ...
Of significance is that the car battery and coal stove
do not appear in the original inventory purportedly drawn in
the pointing out by the judgment debtor yet when it
comes to removal of the property re-lying on that self-same inventory
were also removed. Why? One wonders:
Masienyane's evidence does nothing to improve
Lemena's. It in fact detracts from it to a very
degree. It goes as follows:-
" Why do you say the property belongs to judgment
debtor - ? We took it from his home.
Because you found it at his place you concluded it was
his - ? Nobody denied it was his.
Is that the reason you say it is his - ? Yes.
Do you know for a fact that it belongs to him - ? I
He was absent when you collected it - ? Yes.
You and Lemena never asked anyone to show you
which property belonged to judgement debtor - ? His maid said all the
property belonged to Azael Sehlabaka.
Lemena disagrees with you on that - ? I am not
giving his evidence.
1st Claimant's husband was not there - ? He wasthere.
You cannot deny if 1st Claimant says her husband was not
there because other than when you were told that was her husband, you
on hearsay - ? I agree.
Can you deny subject matter of these proceedings i.e.
the property belongs to 1st Claimant - ? I said we found it in
Can you deny it belongs to this lady - ? From what
Sehlabaka's son and his maid said I can. Have you personal knowledge
- ? No"
It is very strange of Masienyane to insist that 1st
Claimant's husband was there and thereby imply that he is better able
Claimant to know the identity of her own husband. Stranger
still is the implicit suggestion that despite seeing his property
taken away by strangers the husband would stand by and do
nothing. I have no hesitation in rejecting this evidence in favour of
Claimant's assertion that at the time in question her husband was
away at the place of his employment in the Republic of South Africa.
The Court had occasion to recall P.W.1 Lemena's to ask
him whether he ever stopped to think that costs would be incurred in
proceedings and he replied that he did. The Court was moved in
that regard by the sort of indifference manifested by the Deputy
to 1st Claimant's claim, his indifference to the letter
written by her attorney in an attempt to avert costs.
Even assuming the belief was valid that the property
complained of was pointed out by the judgment debtor surely an
letter written by an officer of this Court i.e.
Claimant 1's attorney to the Solicitor General should not have been
ignored. It appears
that Mr. Mpopo did not reply to that letter
written on 26th November 1985 immediately after the removal of
/Mr. Pheko ...
Mr. Pheko submitted that the Deputy Sheriff
stated that he had no interest. But he had. Actions which he
committed manifestly showed he had.
A letter was written to him with
copy to Solicitor General and Registrar of the High Court. Surely at
this stage Solicitor General's
office should have filed 2nd claim.
Lemena decided the property belonged to judgment debtor and
influenced Mr. Mpopo. in this view
and both of them failed to
investigate notwithstanding an intervention by letter the substance
which should have at least prompted their investigation
belief and question the basis of their before coming to
Another submission made loaded with a question mark was
whether the two claimants have made out particulars of their claims.
readily pointed out that 1st Claimant had brought invoices
substantiating her claim to property set out in her names together
a hire purchase letter.
It was long discovered by Lemena that in the Senlabaka
household there were two. A. M's yet this had no influence on him to
heed to 1st Claimant's objection that he was removing her
property. So great was the degree of his indifference that even after
attorney's letter had been received by him did he not deign to
give it any meaningful or effective consideration.
Telling against 2nd Claimant is that other than submit
his affidavit he did nothing to bring particulars of his claim. In
it is clear that Mr. Mpopo relied on what Lemena
had told him.
As pointed out above the whole purpose of the letter
written by 1st Claimant's attorney was to avoid incurring of
and it would have been the
moment for 2nd Claimant to raise his adverse claim with
1st claimant's attorneys by copy of a letter that should have been
to the Deputy Sheriff.
Although he was acting in desparate haste the
1st Claimant's attorney cannot escape the censure of
this Court in as much as he engaged in direct
the Deputy Sheriff instead of the Registrar who is
the Sheriff of this Court; and thus failed to observe
one of the vital aspects of the Judicial Conference
resolutions of 1972 wherein the Judiciary came to a firm
decision that any correspondence relating to matters
determined or due to be determined by this Court must
be addressed to the Registrar of this Court and to the
Magistrates in the subordinate courts as the case may
be. A deputy sheriff may be served with a copy that
enable him to approach the Registrar or Sheriff who will
then have an opportunity to give any appropriate
To date 2nd Claimant has not shown when he lodged his
claim or whether it was lodged at all.
Mr. Pheko submitted and prayed that costs should
be on a higher scale because of the unsavoury manner in which this
matter was gone about.
The Deputy Sheriff behaved in a manner that
put a question mark on his experience. After receiving a claim he did
not inquire if
his opinion was well founded. He went and influenced
2nd Claimant through Mr. Mpopo to "lodge" a claim.
In his turn Mr. Mpopo took the Deputy Sheriff's word as the Gospel
It should be made clear that in going about his business
a Deputy Sheriff is an agent of the Court and
self-respecting Court can afford to have its dignity
held in question by the public,to whose interests scant
attention is given by that Deputy Sheriff.
Referring to the same Deputy Sheriff some three,/
years ago the Court of Appeal in C. of A. (CIV) No.2
of 1983 Khororo vs Flee and Lemena (unreported)
"The deputy sheriff i.e. the second respondent,
told the Court that there had been no advertisement as
required by the Rule. In fact, to the Court's astonishment,
he informed us that despite the fact that he had been a deputy
sheriff for 15 years, he was quite unaware of the Rule. Onewonders how many irregular sales in execution have taken
place. It is of the utmost importance that this Rule and indeed
other Rules affecting him should be known and adhered to by the
deputy sheriff. The prejudice both to a judgment creditor
and to a judgment debtor as a result of non-adherence to the
Rules is self-evident."
It is regrettable that this lack of appreciation of the
Court of Appeal'a admonition is two years later, compounded by
of the interests of
innocent third parties.
For the above reasons an order was granted authorising
the release of items enumerated in para (1) of the
inter-pleader notice to 1st Claimant.
On the reserved question of the ruling on costs I am
satisfied that the deputy sheriff went about in a very high handed
1st Claimant's property and in as much as it was
through him that 2nd Claimant threw his cap over the windmill and
further that nothing
/the record ..
the record or said la oral evidenoe shows that he did
not go on a frolic of his own in causing 1st Claimant all the
and on his part 2nd Claimant did not investigate a
matter which would have been readily ascertainable and thus avoid
costs, I award costs on attorney and client scale against
both applicant and 2nd Claimant jointly and severally. one paying the
to be absolved.
M. L. LEHOHLA ACTING JUDGE
For the Applicant : Mr. Mpopo For the 1st
Claimant : Mr. Pheko
For the 2nd Claimant : Mr. Mpopo
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