HIGH COURT OF LESOTHO
LIQUIDATOR LESOTHO BANK 1st RESPONDENT
LESITSI RAKAUOANE 2nd RESPONDENT
DEPUTY-SHERIFF 3rd RESPONDENT
by the Honourable Mr Justice T. Nomngcongo On the 25th February 2QQ8
applicant herein has approached court for an order in the following
First and Third Respondent to release to Applicant all the movable
property attached by Third Respondent on the 29th
purportedly in pursuance of a writ of execution in CIV/T/150/2002.
Respondents to pay the costs hereof
Applicant further and/or alternative relief.
deal first with a point in limine raised on behalf of the applicant
in his replying affidavit: The now familiar point in
matters involving the present 1st Respondent and it is:-
"Deponent to the answering affidavit has blatantly breached the
Accountants Act NO.9 of 1977 which prohibits him from going
gainful venture with an Attorney (S.C. HARLEY).
The contravention of the Accountants Act NO.9 of 1977 leads to
absence of locus standi on the part of Deponent to the Answering
The Court has no jurisdiction to entertain anyone who breaches the
Ntlhoki goes on to say:-
"KPMG/HARLEY & MORRIS JOINT VENTURE is not legally a
liquidator of the Lesotho Bank".
to the answering affidavit being under a legal disability to go into
a gainful venture with an attorney is in terms of
section 239(1) (c)
of the Companies Act 1967 as amended, disqualified from being a
liquidator (or his firm being such a liquidator
along with a legal
firm) as he is under a legal disability.
light of the legal problems surrounding Deponent to the answering
affidavit which are stipulated in the proceeding paragraphs,
effectively there is no proper Answering Affidavit before court."
relevant section of the Accountant Act 1977 is section 18 (e) which
or indirectly allow or agree to allow any attorney or advocate to
participate in the profits of the member's professional
participate in the profits of the professional work of an attorney
239 (1) (c) of the Companies Act reads:-
"Each of the following persons shall be disqualified for being
elected or appointed a liquidator of a company that is being
person under legal disability".
has described himself in the founding affidavit as a "Chartered
Accountant and member of KPMG/HARLEY & MORRIS
JOINT VENTURE, the
Liquidator of Lesotho Bank". The applicant says he is prohibited
from going into "a gainful venture
with an attorney (S.C.
Harley)" Here we are asked to assume that S.C. Harley is an
attorney and that Mcalpine has gone into
a gainful venture with him.
On that assumption there is prima facie a breach of the Accountant
Act read with the Companies Act.
But the problem with this assumption
is that it is an averment of fact, made at a replying stage when the
respondent is unable
to respond to it. It might well be that McAlpine
might tell us that S.C. Harley is not an attorney after all! The
cannot in this regard plead that it only dawned
on him who the true identities of the liquidators of Lesotho Bank
were when Mcalpine
swore to the answering affidavit. It is after all
the duty of the party who cites another in a summons or in a
application to ascertain
the party has legal capacity to sue or be sued and what his correct
citation is. See HERBSTEIN AND VAN WINSEN - THE CIVIL
PRACTICE OF THE
SUPREME COURT OF SOUTH AFRICA 4th Ed. p. 129. The applicant is
estopped, at this stage from claiming that Mcalpine
or the firm
KPMG/Harley & Morris Joint Venture are not legally liquidators of
taken in limine must therefore fail and it is dismissed.
"That is not of course the end of the matter. In his founding
affidavit affidavit the applicant says that property was attached
removed from his shop at Matebeng where he traded under the name and
style Matebeng store. The attachment and removal were
protestations that he was neither the party nor the actual judgment
debtor referred to in writ of execution, notwithstanding.
Sheriff then left a copy of an inventory. He ignored the applicant's
identification of the actual judgment debtor and
his place of
business which was not Matebeng but rather Mashai ha Theko.
Deputy Sheriff herein, is named in the founding affidavit as Tanki
Mathata. It is alleged he was in the company of one Letlotlo
Monapathi who has since passed on. Tanki Mathata has filed a
supporting affidavit. In that affidavit he makes general remarks
regarding what he did on the 29th March 2004. He says Letlotlo
Monapathi had been detailed "to carry out an execution against
the 2nd Respondent herein" and he requested his assistance in
carrying out the execution. He goes on:
"We proceeded to the shop and presented the writ to the staff,
we found there. They indicated the shop belonged to the 2nd
Respondent and that all the goods in the shop belonged to the 2nd
proceeded to inventory all the goods and removed them to Maseru where
he left them in the possession of Monapathi.
be seen that the deponent 'Mathata does not answer the specific
allegations directed at him personally. It is said in the
affidavit that he in fact was the Deputy Sheriff and that Letlotlo
Monapathi contrary to what he now deposes to was the
him. He does not deny this up-front assertion.
applicant further says the execution was carried at his shop at
Matebeng and there he pointed out that the place of business
judgment debtor was at Mashai Ha Theko. 'Mathata is content with
merely saying that they proceeded to "a shop"
place of business is of such crucial importance in this matter.
further says they found staff there who told them goods belonged to
the 2nd Respondent. That is no answer to the Applicant who
they found him. This called for an
admission or denial that they did not find him but rather the staff.
the deputy-sheriff makes no attempt to deny specific allegations upon
which the applicant seeks relief and he, better than
Scott MCAlpine who deposed to the founding affidavit or Thabo
Maputsoe whose evidence is irrelevant and in the nature
was best placed to refute the applicant's case. It thus stands un
controverted see PLASCON-EVANS PAINTS LTD V VAN RIEBECK
LTD (3) SA 623 (AD).
also significant what Tanki 'Mathata and Letlotlo Monaphathi did at
the place execution of the writ. He says after staff had
that the shop belonged to the 2nd Respondent:-
"We proceeded to inventory all the goods in the shop excluding
the milled grains. We then removed the goods."
46 (3) provides as follows:
"Whenever by any process of the court the sheriff or deputy
sheriff is commanded to levy and raise any sum of money upon the
goods of any person he shall forthwith himself or by assistant
proceed to the dwelling house or place of business or employment
such person, unless the judgment creditor gave different instructions
regarding the situation of the asserts to be attached,
satisfaction of the writ and failing satisfaction.
that so much movable or disposable property be pointed out as he may
deem sufficient to satisfy the said writ, and failing
for such property."
arrival at, according to the Deputy Sheriff some unnamed shop, they
presented a writ to staff There appears no evidence that
any demand to satisfy the writ from the staff was made, nor indeed
could it make any sense to do so because obviously
they were not the
judgment debtor. After presenting the writ they then proceeded to
take inventory and then to remove. The taking
of inventory only
follows after sub rule (b) has been satisfied. It seems that all that
the Deputy Sheriff was interested in was
attaching, inventorying and
removing in total disregard of the rules.
view the reckless manner in which the execution was carried out
reinforces the applicant's case that his and not the judgment
debtor's property was seized ignoring his protestations.
attempt was made by counsel for the Respondent to argue the point in
limine from the bar; what she argued did not carry the day.
appeared to argue that since the appointment of the liquidators had
been gazetted, some other body and not applicant could challenge
appointment. There was absolutely no merit in that argument, but the
situation was made worse by the fact that no heads of
been filed at all and this argument was off the cuff as it were. On
the other hand although counsel for the applicant
failed he had
submitted his heads and the court was able to rely on the statutes
and arguments thus supplied although it came to
conclusion from them. I will not mulct him with cost for failing to
bring home the point in limine. He has succeeded
on the main relief.
The application succeeds with costs.
applicant : Mr Ntlhoki
Respondent : Harley & Morris
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