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:

1. 
   It is ordered that the Rules of Court relating
   to
   service and notice be and are hereby
   dispensed with and the
   matter is heard as of
   urgency;

   
   

2. 
   A Rule Nisi do hereby issue calling upon the
   Respondent
   to show cause why:-

   
   

1. 
   Respondent shall not be
   committed to jail for
   contempt
   of Court.

   
   

2. 
   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 -

1. 
   that an order was granted
   against the
   respondent; and

   
   

2. 
   that the respondent was either
   served with the
   order, or was
   informed of the grant of the
   order against him
   and could
   have no reasonable ground for
   disbelieving the
   information;

   
   

6

and

(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.