IN THE HIGH COURT OF LESOTHO
CIV/APN/559/2004
In the matter between:
KALIMO 'MOLAOA APPLICANT
And
THE LIQUIDATOR LESOTHO BANK 1st RESPONDENT
(In Liquidation)
ALBERT LESITSI RAKAUOANE 2nd RESPONDENT
THE DEPUTY-SHERIFF 3rd RESPONDENT
JUDGMENT
Delivered by the Honourable Mr Justice T. Nomngcongo On the 25th February 2QQ8
The applicant herein has approached court for an order in the following terms:-
Directing First and Third Respondent to release to Applicant all the movable property attached by Third Respondent on the 29th March 2004 purportedly in pursuance of a writ of execution in CIV/T/150/2002.
Directing Respondents to pay the costs hereof
Granting Applicant further and/or alternative relief.
I will deal first with a point in limine raised on behalf of the applicant in his replying affidavit: The now familiar point in limine 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 into a 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
Affidavit.
The Court has no jurisdiction to entertain anyone who breaches the law".
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Mr. Ntlhoki goes on to say:-
"KPMG/HARLEY & MORRIS JOINT VENTURE is not legally a liquidator of the Lesotho Bank".
Deponent 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.
In the 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."
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The relevant section of the Accountant Act 1977 is section 18 (e) which reads :-
No member shall _
...........................
......................
.......................
Directly or indirectly allow or agree to allow any attorney or advocate to participate in the profits of the member's professional work or participate in the profits of the professional work of an attorney or advocate.
Section 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 wound up:-
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Any person under legal disability".
McAlpine 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 applicant certainly 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
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whether 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 Lesotho Bank.
The point 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 and removed from his shop at Matebeng where he traded under the name and style Matebeng store. The attachment and removal were done, his protestations that he was neither the party nor the actual judgment debtor referred to in writ of execution, notwithstanding. The Deputy Sheriff then left a copy of an inventory. He ignored the applicant's identification of the actual judgment debtor and his place of
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business which was not Matebeng but rather Mashai ha Theko.
The 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 Respondent. "
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They then proceeded to inventory all the goods and removed them to Maseru where he left them in the possession of Monapathi.
It will be seen that the deponent 'Mathata does not answer the specific allegations directed at him personally. It is said in the founding affidavit that he in fact was the Deputy Sheriff and that Letlotlo Monapathi contrary to what he now deposes to was the one accompanying him. He does not deny this up-front assertion.
The applicant further says the execution was carried at his shop at Matebeng and there he pointed out that the place of business of the judgment debtor was at Mashai Ha Theko. 'Mathata is content with merely saying that they proceeded to "a shop" when the place of business is of such crucial importance in this matter.
He further says they found staff there who told them goods belonged to the 2nd Respondent. That is no answer to the Applicant who avers that they found him. This called for an
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unequivocal admission or denial that they did not find him but rather the staff.
In short the deputy-sheriff makes no attempt to deny specific allegations upon which the applicant seeks relief and he, better than either Anthony Scott MCAlpine who deposed to the founding affidavit or Thabo Maputsoe whose evidence is irrelevant and in the nature of hearsay, was best placed to refute the applicant's case. It thus stands un controverted see PLASCON-EVANS PAINTS LTD V VAN RIEBECK PAINTS (PTY) LTD (3) SA 623 (AD).
It is also significant what Tanki 'Mathata and Letlotlo Monaphathi did at the place execution of the writ. He says after staff had indicated 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."
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Now Rule 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 of such person, unless the judgment creditor gave different instructions regarding the situation of the asserts to be attached, and there.
demand satisfaction of the writ and failing satisfaction.
Demand that so much movable or disposable property be pointed out as he may deem sufficient to satisfy the said writ, and failing that,
Search for such property."
On arrival at, according to the Deputy Sheriff some unnamed shop, they presented a writ to staff There appears no evidence that upon
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presentment 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.
In my 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.
The application succeeds.
COSTS:
An 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.
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She appeared to argue that since the appointment of the liquidators had been gazetted, some other body and not applicant could challenge such appointment. There was absolutely no merit in that argument, but the situation was made worse by the fact that no heads of argument had 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 a different 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.
T. NOMNGCONGO
JUDGE
For applicant : Mr Ntlhoki
For Respondent : Harley & Morris
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