CIV\APN\124\92
IN THE HIGH COURT OF LESOTHO In matter between:
WAMDA FURNISHERS (PTY) LTD
t\a STYLE 7 VALUE FURNISHERS Applicant
and
MOTS'ELE MPETA Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 13th day of November. 1992,
On the 2nd April, 1992 the applicant obtained an order which reads as follows:
It is ordered that the Rules of Court relatingto service and notice be and are herebydispensed with and the matter is heard as ofurgency;
A Rule Nisi do hereby issue calling upon theRespondent to show cause why:-
Respondent shall not becommitted to jail for contemptof Court.
The Sheriff or his lawful
2 deputy be and is hereby
authorised to apprehend the Respondent, detain and bring him before this Honourable Court.
(c) Respondent shall not be ordered to pay costs of this application on an attorney and client scale.
3. That prayer 2 (b) operate with immediate effect as an interim order.
In the founding affidavit the deputy-sheriff avers that on the 4th March, 1992 he proceeded to the house of Molemo Mpeta who is the respondent's brother and judgment debtor in CIV\T\471\91. When he was in the process of removing the said property to court the respondent obstructed him by forcibly taking the property back into the house. He had to leave.
Re avers that he again went to the same house on the 19th March, 1992 accompanied by two police officers. Again the respondent obstructed him and stopped him from removing the property attached.
3
In his answering affidavit the respondent avers that on the day in question the deputy sheriff and two people unknown to him arrived at his parents' home, and in his presence, wanted to load property onto a vehicle, on an allegation that they had been authorised to do so by a court order. He reminded the deputy sheriff of the order in CIV\APN\102\92 but he ignored him. He then refused to allow them entry into the house, but he used no force. The fact of the matter is that no property was removed from the house and forcibly returned into the house by him.
The respondent avers that prior to this occasion the deputy sheriff came to the said house. Despite the explanation by himself and his elder brother Hlompho Mpeta that the property being attached did not belong to Molemo Mpeta, the deputy sheriff removed some property. It was then that Hlompho Mpeta instituted CIV\APN\102\92 for, inter alia, the stay of of the sale of the property already removed and an order directing the deputy sheriff to institute interpleader proceedings.
The applicant has not filed any replying affidavit. In other words it has left the
4
averments by the respondent unchallenged.
The defence of the respondent is that on the day in question i.e. on the 19th March, 1992 when the deputy sheriff was accompanied by two police officers, he refused to allow them entry into the house but used no force. He was relying on the order his elder brother had obtained in CIV\APN\102\92 for inter alia, "the stay of the . sale of execution of the property already removed, as well as an order directing the deponent to institute interpleader proceedings in terms of the law before the sale in execution of the said property." It seems to me that prayers 1 (b), (c) and (d) in CIV\APN\102\92 were concerned with the property already removed and already in the custody of the deputy sheriff. The order did not refer to the stay of execution in general but it specifically referred to the stay of the sale in execution of the said property. If the order referred to specified goods and to stay of their sale, the deputy sheriff was free to go on with the execution until he had collected enough goods to realise the required amount. The respondent referred to an order of court which did not stop or stay execution in general but referred to stay of
5 sale of specified goods.
In any case the said property was attached on the 26th February, 1992 and removed on the 27th February, 1992. The present contempt of Court is alleged to have occurred on the 4th March, 1992 and on the 19th March, 1992, The respondent admits that he "refused to allow them entry into the house, but he used no force." The question whether this "refusal" does not amount to contempt of court for which the respondent could be committed to prison. The requisites for granting an order of committal are clearly set out on page 657 of Herbstein and Van Winsen: The Civil Practice of the Superior Courts in South Africa, third edition. An applicant for an order for committal must show -
that an order was grantedagainst the respondent; and
that the respondent was eitherserved with the order, or wasinformed of the grant of theorder against him and couldhave no reasonable ground fordisbelieving the information;
6
(c) that the respondent has either disobeyed it or has neglected to comply with it.
In the instant case the order was not granted against the respondent but against his elder brother. In other words the writ was against Molemo Mpeta in CIV\T\471\91. The respondent cannot be committed to prison for contempt of court because he was not a respondent or defendant in the abovementioned case. However, that does not mean that no action can be taken against him. If he is aware that the deputy sheriff is holding a writ issued by a court of law and he deliberately obstructs him in the execution of his duties he can be charged with the common law crime of contempt of court. Cases of obstruction of messengers of Court are in practice dealt with as contraventions of section 74 (a) of the Subordinate Courts Act No.9 of 1988.
In the result the rule is discharged with coats.
J.L. KHEOLA
JUDGE 13th November, 1992.
For Applicant - Mr. Mahlakeng For Respondent - Mr. Nathane.