IN THE HIGH COURT OF LESOTHO In
the Application of :
TSEKO MOHAI Applicant V
NATIONAL MOTORS (PTY) LTD 1st RespondentW.J.
LEMENA 2nd Respondent
Delivered by the Hon. Acting Mr. Justice M. Lehohla on
the 25th day of August, 1987.
In this application applicant seeks an order directing
1st respondent to deliver forthwith to him a certain tractor attached
respondent pursuant to a writ issued in CIV/T/446/86 sold
to applicant at a public ' auction. Applicant further seeks that
to embrace a direction enjoining 2nd respondent to pass
ownership of the said tractor to him and that 1st respondent be
pay costs of this application on an attorney and client
scale. In argument by Mr. Pheko for applicant it was however
not insisted that costs be on attorney and client scale.
It is common cause that the tractor was sold for
M2,350.00. This sum was paid to 2nd respondent by applicant pursuant
to a sale in
a public auction purportedly held on 1st November 1986.
See para. 5 of 2nd respondent's replying affidavit. Applicant was the
First respondent contends that there was no
advertisement as envisaged by provisions of Rule 46(7) which lays
down that :-
"Where any movable property is attached
the deputy sheriff shall sell it
by auction to the highest bidder after due advertisement
by him in one or more newspapers and after expiration of not
less than fourteen
days from the date of seizure therefrom "
Applicant relies on an advertisement for sale of the
said tractor appearing in an issue of Mochochonono
out that the sale was to be held on the High Court
premises on 9th November 1985.
To the extent that 1st respondent contends there was no
advertisement within the meaning of Rule 46(7) above, applicant prays
1st respondent's contention be dismissed as invalid for there
indeed was an advertisement by 2nd respondent.
It would appear though, that regrettably there is no
specific provision in the rules that should an advertised sale be
should be a re-advertisement for a subsequent sale.
There is foundation on common sense in Mr. Mphalane's
submission that if the tractor failed to be sold earlier it ought to
have been re-advertised for any subsequent sale. I cherish
submission for what it is worth because if the relevant rules on the
requirement for advertising lays down, as it does, the
achieving a perceived end, namely a well advertised sale by public
auction, that also seems to be commanded without
which such end
cannot be achieved. Hence re-advertisement cannot seriously be said
to be excluded. What is entailed in advertisements
is attraction of
the largest possible number of prospective buyers to ensure the
highest and therefore fairest price for the purchase
of the article
in question. This cannot be achieved by what is implied in the
speculation that the deputy sheriff informed participants
of the date
to which the sale had been postponed by means other than those set
out in Rule 46(7).
Mr. Pheko took issue with 1st respondent's
deponent's averments in paragraphs 2 and 4 with regard to the
prefacing of his sentences by the
phrase "I have been advised or
informed and I verily believe the same to be true" without
disclosing the source of his
information there by betraying a
determination on his part not to take the court into his confidence
and yet expecting it to rely
on what amounts to hearsay. That no
attempt was made to challenge this submission is comment enough on
1st respondent's attitude
and bona fides.
Mr.Pheko submitted further that the rules do not
the presence of 1st respondent or any of his
representatives at an auction sale. In other words a sale is not
rendered invalid by
the absence of any or either of them. This was in
response to a query raised in 1st respondent's averment
in paragraph 5 where the deponent states
"I further wish to aver that neither my attorneys
or myself and/or any of my representative was present or the
which took place in the yard of the 1st respondent's
premises which were at the time locked."
Embodied in the above averment seems to be a curious
belif that no sale of an object kept in respondent's yard which is
take place elsewhere; for instance in the High Court
premises. This argument cannot hold because if annexure "A"
to go by the sale was due to take place "on the
grounds of the High Court of Lesotho." it thus becomes patently
equate a sale with the physical location of the object sold.
It is however difficult to comprehend the deponent's meaning in this
connection in the light of the fact that there was no indication of
any kind to throw the light on what was entailed in the phrase
"the sale did not take place in the High Court premises."
The 2nd respondent who is the deputy sheriff of this
Court has undertaken to abide by the Court's decision.
He has deposed that the sale held on 1st November 1986
was held pursuant to an advertisement in the Mochochonono new's paper
- a copy
of which marked "A" has been attached to the
papers before court in line with requirements of rule 46)(7). (See
This Annexure is a copy not bearing any date but can safely
be presumed to be a 1985 issue in as much as other articles contained
in advertisement columns on the same page reflect the dates November
The 2nd respondent further avers in para. 4 that
Annexure "NM1" to the opposing affidavit was an
to the sale of other items which were
attached. He denies that the tractor was not advertised before sale.
Significantly "NM1" styled Notice of Sale in
Execution bears an uninitialled alteration of the purported data of
25th October 1986 to "1st Nov."
1986. In it the
tractor in question does not appear nor do the names of
creditor and debtor relating to the same tractor.
It was not explained how the alteration came to be made
or where "NM1" was obtained from save that it bears the
Court's date stamp reflecting 17 October 1986 and is
signed by the Auctioneer, W.J. Lemena. It thus cannot be
there is an element of truth in the assertion that
the sale relating to items reflected in "NM1" was of other
averred by the deponent i.e. 2nd respondent.
A matter of crucial importance in this application
centres on what appears to be 1st respondent's self help. As properly
by Mr. Pheko 1st respondent does. not dispute, in
fact on its behalf the deponent Mafa Moletsane asserts under oath,
that he refused to release
the tractor. Deponent does not deny that
2nd respondent and applicant have been to see him several times in
pursuance of the product
of the purported sale. It thus becomes
obvious that he was aware of the sale even if he did not acknowledge
it because of whatever
irregularity he felt surrounded it. If so then
it is to be wondered why he did not approach the court in order to
receive an appropriate
remedy. Surely it behoves anybody who has a
genuine grievance about a matter affecting his or his company's
interests adversely if
at all, to seek a remedy before the court so
that, if need be, the sale could be set aside.
Although it was conceded on behalf of the applicant with
reference to the inadequacy of Rule 46(7) to the extent that it does
appear to have been designed to cover situations requiring
re-advertisements of sales in execution that no rules or laws can
in vacuo and therefore that in such situations it is
fitting that the spirit should be breathed into the letter of the law
in order to avoid
absurdities, it was however submitted that in the
instant application it behoved the 1st respondent to demonstrate that
prejudice. But no attempt was made to show this. It may
well be that some body of persons were prejudiced by the fact that
was not well advertised but that does not warrant 1st
intervention on their behalf or attempt at championing
their cause because the actio popularis of the
Common Law has never been part of the Roman Dutch Law. C/F Dalrymple
vs Colonial Treasurer 1910 T.S. 372 at 390
saying "The person who sues must have an interest in the subject
matter...." And also Wood & Others vs Ondangwa Tribal
Authority & Another 1975(2) SA. 294 (A.O.). Any personal
interest that 1st respondent had should have been shown along with
whatever prejudice thereto
was suffered or was likely to be
occasioned by the manner in which the sale was conducted from the
title page to the colophon. 1
have no doubt that applicant has
successfully spiked 1st respondent's rifles in this regard.
Mr. Mphalane expressed surprise at and dubbed as
unique procedure adopted by applicant in including a fresh deponent
in support of his case and
in relying for that matter on a new
annexure even so at the replying stage. He submitted that this tends
to derogate from the rule
that an applicant stands or fails by his
founding affidavit. He accordingly prayed that the matters he
strongly referred to as new
in 2nd respondent's affidavit be struck
off. ^ reply Mr. Pheko submitted that there is. nothing new in
the applicant's papers it is not specifically stated that the
applicant relied on any particular
advertisement it is clear in para.
5 of his founding affidavit that he maintained, as he states, that
the sale was in pursuance of
the rules or Court. It required no
strain on the stretch of imagination to appreciate that if the sale
was in pursuance thereto,
then a presumption rests on a logical basis
that the rules were complied with including those requiring (as a
there should be an advertisement preceding a sale
by not less than 14 days after seizure. It would however have been
applicant was more specific in his evidence than be
content to rely on a general statement albeit based on one of the
Mr. Mphalane cited the rule that no further
affidavit should be allowed except with leave of court or under
special circumstances. Relying on
this rule he requested that 1st
respondent's affidavit be struck out. He further referred to Morris'
Techniques in Litigation at 260 where it is said that
an applicant should not seek to supplement his founding affidavit or
to remedy any omission or introduce
new matters to support his case
in the replying affidavit.
Reacting to this charge Mr. Pheko submitted that
an applicant can call as many deponents as he wishes to support his
I cannot readily subscribe to this submission. I have
not found any authority supporting the view that in on endeavour to
his reply a party is entitled to supplement his founding
affidavit or to remedy any omission by, as in the instant case,
in a new material such as annexure "A" which is
undoubtedly crucial for the determination of this case.
Moreover this submission rests on the illusive igneratic
elenchi basis which ignores the fact that Mr. Mphalane's
submission was not that applicant cannot at replying stags bring in
fresh evidence but that he cannot do so without (a) leave
of court or
(b) having shown the special circumstances warranting that procedure.
Thus the submission contains a fallecy to the extent
that it appears
to refute the opposing party's argument while in fact disproving
something not asserted by him.
It is important to pay heed to the fact that a party
bringing proceedings by notice of motion as against action takes his
his hands because what remedy can be provided by further
and/or by further and better particulars in the latter case, is not
in the former. So whatever mishap a party relying on notice
of motion suffers is an ever-present risk that he willingly takes. My
attitude regarding my firm disagreement with the submission made on
this point in the applicant's case will be manifested in the
But lo!! it is inevitable that 1st respondent should
more than lose on the swings what he made on the roundabouts because
of Rule 30 makes it clear that with respect to
irregular proceedings, it is required that within 14 days an
objection should be raised by the party affected on notice to the
other party. It is also provided in that rule that a party who
any step in the cause with knowledge of the irregularity or
impropriety shall not be entitled to make such application.
Significantly in these proceedings no notice has been
given nor application made on notice that there would be
made an application for striking out the alleged
irregularity. See Elher (Pty) Ltd vs Silver
1949(4) SA. 173.
"Applications to strike out are taken by way of
motion upon proper notice to the other party,wherein are indicated
to, together with a short statement of the grounds
of the objection."
Hebstein & Van Winsen on the Civil
Practice of The Superior Courts in South Africa at 49.
There can be no application to strike off made from the bar. Such
application should be on notice. The operative maxim here
in - "nihil
forum habet ex scena" - the court has nothing to do with what is
not before it.
Care should however be taken not to blur the distinction
between bringing an application on notice on the one hand and on
motion on the other in matters which are interlocutory as
the point raised herein clearly is. See CIV/APN/402/86 Khoboko vs
Khoboko & 2 Others (unreported) at page 5.
I can hardly see the relevance of Rule 46(3) (c) in
those proceedings and would accordingly desist from speculating on
Significantly in his opposing affidavit ad. 4 Mr. Mafa
Moletsane says he believes verily that the sale was held on 1st
but in argument it was submitted on his behalf that
there was no sale. This cannot be allowed as it detracts from the
that one should not in litigation "blow hot
Furthermore having taken the law into its or his own
hands 1st respondent through its deponent cannot be heard to seek the
of the court because he labours in vain who after
offending the law looks up to it to give him relief in the same
It is no matter for conjecture that 1st respondent knew
of the sale long before the application and that the 2nd respondent
the tractor to applicant but 1st respondent nevertheless
refused to release it while at the same time failing to come to court
challenge the propriety of the sale which adversely if at all,
affected its interests.
In effect the sale, bad as it may well have been, was
held by 2nd respondent as directed by 1st respondent and an
1st respondent. The ownership in the tractor vested
thereby on the 2nd respondent who alone could pass it to applicant as
passed it. The presumption here is that ail things are held
to be properly done until the contrary is proved. The opportunity
but was not seized by 1st respondent to prove the contrary..
It instead defied the way of propriety by refusing to release
that did not belong to it. It is wrong for anyone to come to
court expecting it to wish him joy of the ill-retained goods in his
custody. The deputy sheriff has received proceeds of sale of that
There is no merit in 1st respondent's opposition to this
application save to say that it is desirable that a specific rule
be incorporated in the rules of court to regulate proceedings
where it becomes necessary to have a sale re-advertised. Although it
is undesirable and often cumbersome to initiate amendments of rules
each time a new situation arises demanding application of such
it is however necessary that this particular rule be made and
implemented because it reduces one to unwholesome blushes to
that a sale postponed from November 1985 was without further
advertisement held a year later. No doubt the Chief Justice will
it fitting to give attention to this in terms of section 16 of 1978
High Court Act.
The 1st respondent failed to show what prejudice if any
he suffered because of the sale that was held a year after being
Judgment is entered for applicant with only 7/8 (seven
eights) costs on party and party scale.
ACTING JUDGE. 25th. August, 1987.
For Applicant : Mr. Pheko For 1st Respondent: Mr.
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