CIV/T/129/2008
In the matter between:
and
SEFORA TSUMANE 1st Defendant
THE REGISTRAR OF HIGH COURT 2nd Defendant
BOLIBA MULTI-PURPOSE
COOPERATIVE SOCIETY 3rd Defendant
THE ATTORNEY-GENERAL 4th Defendant
This is the case where the Plaintiff is claiming for payment in the amount of M60,000.00, being the money that he paid for an Isuzu van that he bought at the Public Auction. The money was paid to the 1st Defendant as the Deputy Sheriff of this Court.
According to the return of sale of the vehicle, Exhibit D, the vehicle was sold at a public auction in terms of the judgment handed in CIV/T/324/2006. The vehicle was attached and sold in satisfaction of the judgment between the 3rd Defendant as the Plaintiff and one Sebopeho Mohapi.
It was the Plaintiffs case that on or about the 20th December, 2007 the same vehicle was repossessed by Standard Lesotho Bank Limited in CIV/APN/595/2007, the Bank being the rightful owner of the vehicle under the Hire Purchase Agreement with Sebopeho Mohapi. The order for repossession
has not been attached to the papers neither did the Plaintiff produce it in his evidence.
According to the Plaintiff, the 1st Defendant did not before the sale of the vehicle to him (Plaintiff) inform him that the Standard Bank of Lesotho Limited had a right and title to the vehicle. The 1st Defendant instead represented to the Plaintiff that she was indeed entitled and authorized to sell the vehicle in question.
The Plaintiff in his evidence went further to show that because the vehicle was not in a running order he had to hire a Two truck to remove it from where he bought it to Supreme Panel Beaters for repairs. He even produced some receipts for monies he paid for such repairs. The total amount paid came to M8580.89. He therefore claimed for the total amount of M68,580.89 for the vehicle.
It was the Plaintiffs case that the 2nd Defendant was liable by virtue of the fact that the 1st Defendant was acting in her official capacity in selling the vehicle to him, and that the 2nd Defendant in her official capacity was the responsible person having authority and control over the Deputy Sheriff of this Court. That on the grounds of vicarious liability the 2nd Defendant was liable to the Plaintiff as the 1st Defendant was acting within the scope and duty of her official appointment by or on the official appointment and authority of the
2nd Defendant.
That the 3rd Defendant also liable to the Plaintiff as the sale continued on the 3rd Defendants alternatively its Attorneys instance, despite being informed of the Standard Banks right and title to the vehicle.
Plaintiff submitted that the 3rd Defendant was unlawfully and unfairly enriched at the expense of the Bank, who after exercising their right to repossession, such expense and / or injury was transferred to the Plaintiff. That despite the Banks communication of the facts to the 3rd Defendant and for its Attorneys insisted that the 1st Defendant proceed with the sale in execution, Plaintiff therefore said, as a result the 3rd Defendant is equally jointly and severally liable as the sale occurred at its insistence and demand issued by its Attorney acting
on its instructions.
Though the Defendants were never requested to plead, the matter was however set down for hearing. Plaintiff prayed for default judgment against the 2nd and fourth Defendants after leading his evidence.
The Court came to the conclusion that Plaintiff never attached to his papers the order for the repossession of the vehicle. Also that Sebopeho Mohapi from whom the vehicle was seized as a judgment debtor has not been joined as one of the parties in these proceedings.
The Court was concerned about a judgment being granted against the Registrar and the Attorney-General for the wrongs done by the Deputy Sheriffs. A Deputy Sheriff though appointed by the Registrar is not a government employee but an independent contractor. That is why the law required of him to have paid security to be fixed by the Registrar as Sheriff. The Security would take care of mistakes committed by a particular Deputy Sheriff. Matters of this nature should be taken as a wake up call for finding a way of making all Deputy Sheriffs deposit some amounts with the Bank for Security.
I therefore granted absolution from the instance.
M. HLAJOANE
JUDGE
For Plaintiff: Mr De Beers
For Defendant: Mr Matooane