CIV/T/129/2008

IN THE
HIGH COURT OF LESOTHO

In the matter between:

WERNER EITEL HOOPS Plaintiff

and

SEFORA TSUMANE 1^st
Defendant

THE REGISTRAR OF HIGH
COURT 2^nd
Defendant

BOLIBA MULTI-PURPOSE

COOPERATIVE SOCIETY 3^rd
Defendant

THE ATTORNEY-GENERAL 4^th
Defendant

JUDGMENT

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 12^th June, 2008.

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 1^st
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 3^rd
Defendant as the Plaintiff and one Sebopeho Mohapi.

It was the Plaintiff’s case
that on or about the 20^th
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
1^st
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 1^st
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 Plaintiff’s case
that the 2^nd
Defendant was liable by virtue of the fact that the 1^st
Defendant was acting in her official capacity in selling the vehicle
to him, and that the 2^nd
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 2^nd
Defendant was liable to the Plaintiff as the 1^st
Defendant was acting within the scope and duty of her official
appointment by or on the official appointment and authority of the

2^nd
Defendant.

That the 3^rd
Defendant also liable to the Plaintiff as the sale continued on the
3^rd
Defendant’s alternatively its Attorney’s instance, despite being
informed of the Standard Bank’s right and title to the vehicle.

Plaintiff submitted that the 3^rd
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
Bank’s communication of the facts to the 3^rd
Defendant and for its Attorneys insisted that the 1^st
Defendant proceed with the sale in execution, Plaintiff therefore
said, as a result the 3^rd
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 2^nd
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.

1. 
   M. HLAJOANE

   
   

JUDGE

For Plaintiff: Mr De Beers

For Defendant: Mr Matooane