CIV/APN/273/2005
IN THE HIGH COURT OF LESOTHO
In the matter between:
CHEN CIMING APPLICANT
and
LEKHOOA HLONGOANE 1st RESPONDENT
DEPUTY SHERIFF 2nd RESPONDENT
JUDGMENT
Delivered by the Honourable Justice T. Nomngcongo on the 24lh October 2005
The Applicant has approached Court on a Certificate of Urgency for the following orders:
That the ordinary rules relating to service of this Honourable Court be dispensed with on account of urgency hereof.
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That a rule nisi issue and is hereby issued returnable on a time and date to be determined by this Honourable Court calling upon the Respondents to show cause if any why the following orders shall not be made final:
That applicant be granted such further and/or alternative relief. And that prayer 1 operates with immediate effect as interim relief. And that the founding affidavit will be used in support hereof.
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On the 27th July 2005 the Applicant approached court and obtained interim relief, that the prayer dispensing with ordinary modes of service operate with immediate effect. He then served the Respondents with the papers of this application. Several postponements followed to enable the parties to file the relevant processes and the matter was finally argued before me on the 26th September 2005.
The facts that are common cause are that the first Respondent herein sometime previously obtained an order of court for the attachment of property ad fundandan or confirmandam jurisdiction against one Chen Zhenwang in CIV/APN/273/2005. Consequent upon that a warrant of attachment issued directing the deputy sheriff to attach the following goods belonging to the said Chen Zhenwang:-
A Nissan van 1 tanner registration no. B2387
A cash register
Two deep freezers
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Shoes
Mattresses and
Gas cylinders.
On the 11th August the deputy sheriffs of this court proceeded to 'Muela in Butha-Buthe and at a shop there seized property answering to that described in the warrant of attachment. Common cause ends here. The Applicant claims that the shop belongs together with another to a brother of his who is in China for some business. He is taking charge of these businesses in the absence of his brother. He annexes a trading licence issued in the name of his brother dated December 2004, as well as a registration certificate with respect of the vehicle seized in the name of one of the businesses in support of his contentions. He finally claims that Chen Zhenwang against whom the 1st Respondent obtained the attachment order is his grandfather and has nothing to do with the business except only as an assistant following certain misfortunes which perhaps led to the granting
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of the attachment order in the first place.
The 1st Respondent on the other hand says the business at 'Muela belongs to Chen Zhenwang. It is a place he relocated to after he had moved from certain premises which he (1st respondent) had leased to him. He had established this fact after he had visited the shop himself prior to attachment and had made inquiries whilst there; he had been given a free can of coke by Chen Zhenwang who was present during the inquiries. What these inquiries were we are not told. The Respondent further states that the sheriffs have proof that the shop and stock belong to Chen Zhenwang. What this proof is we do not know either if only because none of the sheriffs has deposed to any affidavit.
Certain points were raised in limine in the answering affidavit and argued before me.
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The Applicant has no locus standi inasmuch as the property attached does not belong to him.
The Court has no jurisdiction because the Applicant is a peregrines and as such has not filed security
There is a dispute of fact, therefore Applicant ought not to have proceeded by way of notice of motion.
(i) Applicant has failed to justify his failure to give notice, (ii) Rule 6 (6) does not permit ex-parte applications.
A. LOCUS STANDI
Rule 6 (6) provides as follows:
"6. (6) If any person can show that the property attached is his property and not that of the peregrinus such person may apply to court on notice to the plaintiff to set aside the attachment and the court may make such order as it deems just."
The first Respondent argues that to show that the property is his the
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Applicant has to be the owner of such property. Very little legal argument was advanced for this proposition. I was not referred to any authority except to emphasise that "his property" has to be interpreted to mean owner of property. Significantly however the word "owner " has not been used in the rules. The Applicant says that he is in charge of the property in question in the absence of the owner. He thus, has possession and control of the property. That, if proved in my view would create an interest or right in the property in question. That would in turn give him title to protect such an interest or right. After all the right of possession is jealously guarded by the law. It was said in BESTER V GRUNDLING 1917 TPD 494:
"A person who has been in possession of a thing is entitled to come to the court and to say that the defendant has disturbed him in the possession of it and that the possession is worth to him a certain sum of money, and, if the court decides in his favour, the court can either give him back the possession of the goods or otherwise a sum of money. " (per Wessele J)
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I entirely agree and add that it would be quite perverse if the manager of a business would not be able to protect such a business against interlopers in the absence of its owner. I hold the view therefore that for the purpose of Rule 6 (6) the words "his property" are not restricted to owner in its primary meaning of dominum but may be extended to one who has possession and control over property.
One other thing that the 1st Respondents argument does is to shift the onus from where it really belongs in the first place. It is he whilst he was Applicant who ought to have proved that the property sought to be attached was indeed that of the peregrinus. Rule 6 (2) provides in that regard:
"The applicant must satisfy the court that:
he has a prima facie cause of action.
that the property sought to be attached is the property of the peregrinus or that the peregrinus has some right in the property ".
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If once therefore the property attached or sought to be attached is shown not to be that of the peregrinus, the attacher cannot be heard to say against a possessor that you are not the owner. (See HERBSTEIN & VAN WINSEN" The Civil Practice of the Supreme Court of South Africa 4th Edition pp. 104 and 105 and the authorities referred to).
B. JURISDICTION
It is contended that the Applicant is a peregrinus and therefore that he must furnish security. Rule 48 (1) provides that a party to proceedings entitled and desiring security for costs from another shall, as soon as practicable after the commencement of proceedings
deliver a notice setting forth the grounds upon which such security is claimed and the amount demanded. In casu the Respondent has without further proof the onus of which in my view rests upon the person alleging, asserted that the Applicant is a
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peregrinus. He has not delivered any notice as envisaged in Rule 48(1).
C. DISPUTE OF FACT
The Respondent says there is a dispute of fact merely because Applicant says the property belongs to a brother of his whereas he says it belongs to Chen Zhenwang. A dispute of fact must be such that it cannot be resolved on the papers. I find nothing in the allegations before me that cannot be resolved on affidavit. It is a simple matter of placing facts before me indicating whose property this is.
D.URGENCY
It seems to me that the sudden closure of an on-going business creates utmost urgency. Business is a source of income not only for its owner but for its employees and their families. The attachment of all its stock-in-trade plus a motor vehicle whose business is to stock the business needed urgent attention. Rule 6(6) provides of cause that notice must be given to
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the other party; in the present case that notice was in fact given. All that the Applicant did was to seek ex-parte dispensation with ordinary modes of service. That did not in any way prejudice the 1st Respondent.
CONCLUSION
The Respondent admittedly attached goods under a warrant of attachment claiming that they belong to the peregrinus. If a third party who has possession of property claims it as his, the onus shifts to the Respondent that the property indeed belong to the peregrinus (see MINISTER VAN WET EN ORDE V. MATSHOBA 1990 (1) SA 280 (A) In the present the Applicant has produced a trading licence in respect of the shop at 'Muela which is not in the names of CHEN ZHENWANG. He has produced a registration certificate for the vehicle seized. It has nothing to do with ZHENWANG.
The Respondent on the other hand has produced nothing that links the goods attached to the peregrinus. I have no doubt in my mind that the goods attached must be returned to the person who had possession
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of them.
The Order I make is that:
the warrant of attachment in CIV/APN/273/05 is hereby set aside.
all the property seized in consequence of the said warrant as appear in the sheriffs inventory be returned to the Applicant.
the 1st Respondent to pay the costs of suit.
T.NOMNGCONGO
JUDGE
24 October 2005
For Applicant: Mr Ratau
For Respondent: Mr Nteso
