IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/221/2008
In the matter between:-
LERATO SEKANO APPLICANT
AND
MAMATELISO MASOABI 1ST RESPONDENT
DEPUTY SHERIFF (LIPHOLO & RAMALEFANE) 2ND RESPONDENT
JUDGEMENT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 17th August, 2009
[1] Applicant has approached this court on a Notice of Motion for an order in the following terms:
Dispensing with the Rules relating to times and modes of service on the grounds of urgency;
That a Rule Nisi be issued calling upon Respondents to show cause, if any, on a date to be determined by the Honourable Court why:
The attachment of Applicants movable property, namely four piece Essex lounge suit, lara-entertainment unit, a hifi system and its accessories shall not be declared null and void;
The sale in execution of the above-mentioned movable property shall not be stayed pending finalization hereof;
The Deputy Sheriff shall not be rendered to released the afore-mentioned movable property to the Applicant or her attorneys of record herein forthwith;
Prayers 1 and 2.2 operate with immediate effect as an interim court order;
That the Applicant be granted costs of suit;
That the Applicant be granted further and/or alternative relief.
The application was opposed.
[2] Applicant has deposed on paragragh 2.1 of her Founding Affidavit that on 23 June, 2008 she received a telephone call from her brother Mapokhomane Masoabi that the Second Respondent had attached and removed her movable property as described in her Notice of Motion and she did not know the basis on which her property was attached.
[3] At para 2.2 the Applicant has deposed on arriving home in Lesotho she found her property missing and found information relayed to her by her brother was true. Her mother reported to her the Deputy Sheriff has come to her home to levy writ of execution on movables in her home and her mother had indicated most items did not belonged to her and the Deputy Sheriff ignored her. At para 2.3 the deponent has deposed the property belonged to her having purchased it at Ellerines and Oxford Furnishers as reflected in Annexure A annexed to her papers.
[4] On para 2.4 the applicant has alleged it was improper for the Deputy Sheriff to attach the property found at Mahlaoli Masoabis even when told items mentioned in the Notice of Motion belonged to third parties like herself and that Mahlaoli Masoabi is her mother where she placed her property on account of not having a home of her own (para 2.5). She has claimed it was illegal for the Deputy Sheriff to attach property belonging to a third party in that she was not party to the claim in CIV/APN/476/2007 and CIV/APN/448/2001 cases which affected her mother and brother (para 2.6) and she has been illegally dispossessed of her property.
[5] Facts admitted in this case are that Applicants mother Mahlaoli Masoabi and her brother Mapokhomane were sued by Applicants
sister-in-law who obtained judgement against Mahlaoli and Mapokhomane. The Deputy Sheriff, in order to execute judgement went
to the home of Mahlaoli to levy the writ. It is claimed there he was told most of the property belonged to third parties and could not be attached and the Deputy Sheriff was unimpressed. Applicant having been informed by her brother Mapokhomane that her property has been attached for sale she made her way home only to find her property was attached and hence present proceedings.
[6] Preliminary points raised by Mr. Tlapane for 1st Respondent were abandoned to save time and parties argued the case on merits Mr. Letsika for Applicant arguing under no circumstances can property of a third party to litigation be attached for sale particularly where the Deputy Sheriff is informed the property belongs to a third party. Moreover, those cases the result of the writ of execution had nothing to do with the Applicant. While Mr. Tlapane seemed to agree on principles governing the relation between parties concerned in a civil case and third parties concerning attachments
and hence execution, he disagreed the Deputy Sheriff was informed property belonged to a third party. In his view the property was property attached as it belonged to Mapokhomane who has not denied allegations against him as well as Mahlaoli who was also guilty of not having denied allegations against her and anything said of Mahlaoli and Mapokhomane being hearsay.
What the court has to decide is whether the attachment is valid.
[7] In Reynders v Rand Bank Bpk, 1978 (2) SA 630 NPD marriage between husband and wife was dissolved and in terms of an agreement which formed part of the court order the husband undertook
to as soon as possible to transfer property to his three minor children custody of which was awarded the wife but in breach of this obligation, the husband failed to register property in the name of the children who were still minors though he had consented to do so. Prior to the judicial sale there was an attachment in execution at the instance of the Respondent and there was some doubt whether the attachment was completed (in the sense of whether all affected persons were served in terms of Rule 43).
[8] Attachment was however effected pursuant to a judgement obtained by respondent against Applicant ex-husband and writ of execution was issued against movable property of the judgement debtors as in the instant case where writ of execution has been levied and attachment affected on judgement debtor by judgement creditor. The relief Applicant sought in Reynders case was the setting aside of attachment of property, the same relief which the Applicant seeks in the instant application. In Reynders case above it was contended on the ground alone of leave of court not having been sought the application be dismissed and it will be
observed in the instant application Mr. Tlapane for the 1st Respondent objected to the late filing of the Replying Affidavit which objection, to minimize on time, was withdrawn. In Reynders case it was not disputed that the property was liable to be attached and that the attachment was valid in all respects and Applicants claim against debtor was a far cry from the instant application is that, firstly, Applicant was not party to proceedings between 1st Respondent and her mother and brother-in-law and, secondly, it does not appear it is disputed Applicant left her property under he mothers care.
[9] In Reynders case above, it was said factors enunciated above and relied upon in support of the submission that the court was entitled to protect
Applicants right to obtain transfer of the property by setting aside the attachment and preventing its sale in execution at the instance of the 1st Respondent mindful, Applicants claim was to the property rather than to the payment of money, it being argued that the rule qui prior est tempore potior est jure applied and that this, coupled with the Respondents knowledge of the Applicants prior right in relation to the property, gave her a perfect claim thereto and, accordingly, that the competition which has arisen between the parties concerning property should be resolved in favour of the Applicant.
[10] Indeed Applicant in her Founding Affidavit at paragraph 2.3 has deposed:
I wish to tell the Honourable Court that the attached property belongs to me. I purchased the property from Ellerines Furnishers and Oxford Furnishers. I wish to attach hereto copies and receipts and a statement I received from Ellerines Furnishers that details out and supports my assertion that the property is mine and mark them collectively Annexure A.
Also at para 2.6:
I confirm that I have discovered that the first respondent who is my sister-in-law sued my brother and my mother in CIV/APN/467/2007 and CIV/APN/448/2007. I am not a party to either of these legal proceedings so that there is no basis upon which the Deputy Sheriff
could attach my property. It is illegal to attach property of a person who is not a party to the litigation
And while I agree it is illegal to attach property of a person who is not party to the litigation this depends on whether the Deputy Sheriff knows the property does not belong to the judgement debtor; where the Deputy Sheriff is aware of this as where the judgement debtor disclaims the property attributing it to a third party, an interpleader action arises between the judgement creditor and the claimant. In this case the claimant being absent an interpleader action could not have arisen although I am of the view for good reason the Deputy Sheriff shunned his work being interferred with preferring to go on with attachment despite representations made to him for how could it be reported to the Deputy Sheriff that property not judgement debtors and this turn out to be true?
[11] According to paragraph 2.3 of applicants Founding Affidavit, she alleges when I arrived home I discovered that the property named in the Notice of Motion was missing I inquired as to what might have happened and my mother told me the Second Respondent came to her home and indicated he had a writ of execution to be levied against movables found in her home and she tried to advice him that most of the things attached did not belong to her but the Deputy Sheriff did not listen. In Applicants favour her mother Mahlaoli Masoabi has confirmed Applicants allegations and particularly that she told the Deputy Sheriff property attached did not belong to her. I have also perused 1st Respondents Answering Affidavit at paragraph 5.1 where she refers to paragraph 5 of the Founding Affidavit saying contents of paragraph 5 are denied adding property the subject matter hereof was attached long before the 23 June, 2008 and actually removed on 18 June, 2008 and, there is no Supporting Affidavit from the said Mapokhomane, Applicants mother or alleged employer. I have, however, found a paper filed upside-down on page 31 of the proceedings dated 08/04, 2008 and apparently an attachment return showing:
1. 1 x 4 Black Sofas
2. Wall Unit
3. Tempest Hifi and 2 speakers
signed by Mapokhomane Masoabi as debtor, the Deputy Sheriff and L.L. Lipholo as witness and stamped 11 June, 2008 making it difficult to know when, exactly, the attachment was made.
[12] It is also alleged Applicants mother Mahlaoli Masoabi was present and yet, as co-debtors, she has not signed the document marked so clumsily, M.R.I. I am of the view if there was such attachment in presence of Mapokhomane and his mother Mahlaoli all should have signed the document and not only this, that they should have been served with copies of the attachment document. Not that they were not so furnished with copies, but that they could not have been furnished with copies including the Registrar having regard to the fact that M.R.I is lose paper incapable of furnishing duplicate or triplicate copies and as I have said Mahlaoli does not feature on M.R.I as a participant. Rule 46 of Rules of the High Court, 1980 is peremptory that the Deputy Sheriff where satisfaction of the writ was not demanded from the judgement debtor personally, the Deputy Sheriff shall give to the judgement debtor written notice of the attachment and a copy of the inventory made by him, unless his whereabouts are unknown (Rule 46 (3) (iii). In the instant application it does seem satisfaction of the writ was demanded but judgement debtors having failed to comply property pointed to the Deputy Sheriff was attached the Deputy Sheriff warning them failure to comply would entail him to return for more property. This court is of the view whether judgement debtors comply or fail to do so does not affect the Deputy Sheriff furnishing judgement creditors with written notice of attachment and copy of the inventory plus a copy to the Registrar for how else can judgement debtors protect themselves against unscrupulous Deputy Sheriffs?
[13] In so far as intervention is concerned, a case in which Applicants sister-in-law sued Applicants mother and her brother, Applicant had no interest at all in the case and her intervention was uncalled for; account has also to be taken Applicant lives in the Republic of South Africa. As to an interpleader referred to by Mr. Tlapane that the Applicant should have resorted to, for reasons stated above I do not think the goods were properly attached in that the custodian Mahlaoli despite evidence against her does not appear to have been present or being present I do not understand why, being judgement debtor like her son Mapokhomane, she did not signify her presence on M.R.I above on the occasion of attachment giving the impression that it was Mapokhomane who pointed the goods not as his. Having regard to the fact that Mapokhomane informed her sister of the attachment, it is unlikely Mapokhomane pointed out the goods as his and even were it so, I am satisfied applicant has identified the goods as her own with every right to pursue them wherever they may be besides, I am satisfied that Annexure A at page 13 of the proceedings reflects goods purchased by Applicant namely: 1 x 4 Essex Lounge Suit; 2 x 137 CR Classic Quilt Base 8 and Lara Entertainment unit. The purchase on page 13 is Applicants supported by receipts on pages 15-16. I have already said that according to the so-called attachment document Mapokhomane is the one who signed for the goods attached and there is a strong likelihood that he telephoned his sister the Applicant that her furniture was attached in execution for how else could the Applicant have known her goods were attached? Since communication between Mapokhomane and his sister was relevant and material in the circumstances Mapokhomane being, at the time, ostensibly in possession of the goods, the communication was relevant and material not amounting to hearsay (see R v Trupedo 1920 A.D 56, 62; R v Tshabalala 1921 A.D 13; R v Kumalo 1918 A.D 501). Mahlaoli Masoabi did depose to a Supporting Affidavit except, as usual, pagination was horrible her affidavit not annexed to Applicants Founding Affidavit and not numbered. I am also of the view on a balance of probability Applicant has proved her case which was not rebutted by 1st Respondent. I have already said that there was no need for either intervention or interpleader for reasons already stated for I fail to appreciate how Applicant could intervene in a matter that did not interest her or an interpleader in a faulty process, afterall when goods seized Applicant was absent. I disagree property allegedly attached is Mapokhomanes for not being his it is the reason Applicant was telephoned by Mapokhomane on attachment. I also disagree Mapokhomanes signature was in acknowledgment of the property being his for, on the contrary, there should have been an indication on M.R.I that the property is his; in any event, there was no evidence that property Mapokhomanes. I fail to understand the Deputy Sheriff, Mr. Ramalefane. He says he explained purpose of his visit to Mahlaoli and Mapokhomane. Evidence is that Mapokhomane is Applicants brother and hence Mahlaolis son where goods found was Mahlaolis home as Applicant has claimed. Applicant has claimed she left her property with her mother Mahlaoli and the latter has confirmed this in her Supporting Affidavit. There was no evidence in rebuttal of either that where goods found is Mahlaolis home and Applicant Mahlaolis daughter, left her goods with her mother. The goods having been positively identified by Applicant, there is no reason for this court not to grant the application particularly because, as was pointed out in Reynders case above:
By our law it is clear that a third persons goods cannot be taken in execution or attached.
(see also per Juta AJA in Weeks and Another v Amalgamated Agencies Ltd 1920 A.D 218 at 236-7); the judgement is apparently based on Menzies Motor Co. (Pty) Ltd v Furnstra 1955 (3) SA 408 (T) at 412; Jones and Buckle at 183; Wille Principles of South African Law, 6th ed at 244 that the judgement creditor, by virtue of an attachment in execution, obtains a real right in the property attached, something which the judgement creditor and 1st Respondent cannot enjoy in the instant application.
[14] I am of the view the competition which has arisen between the parties concerning the property should be resolved in favour of the Applicant regard being had that factors which have tipped the scale in favour of the Applicant in above application are, amongst other things, prior right of the Applicant to the property attached. The court, in the premises, grants the application to the effect:
Attachment of Applicants movable property namely four piece Essex Lounge Suit, Lara Entertainment Unit, a Hifi System and its accessories is declared null and void and of no legal pace or effect.
The Deputy Sheriff is ordered to release and restore above-mentioned property to the Applicant or her attorneys of record herein.
Costs of suit.
G.N. MOFOLO
PUISNE JUDGE
For the Applicant : Mr. Letsika
For the Respondents : Mr. Tlapane
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