IN
THE HIGH COURT OF LESOTHO

HELD
AT MASERU CIV/APN/221/2008

In
the matter between:-

LERATO
SEKANO APPLICANT

AND

‘MAMATšELISO
MASOABI 1^ST
RESPONDENT

DEPUTY
SHERIFF (LIPHOLO
& RAMALEFANE) 2^ND
RESPONDENT

JUDGEMENT

Delivered
by the Honourable Acting Judge Mr. G.N. Mofolo

On
the 17^th
August, 2009

[1] Applicant has
approached this court on a Notice of Motion for an order in the
following terms:

1. 
   Dispensing
   with the Rules relating to times and modes of service on the grounds
   of urgency;

   
   

2. 
   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:

   
   

1. 
   The
   attachment of Applicant’s movable property, namely four piece
   Essex lounge suit, lara-entertainment unit, a hifi system
   and its
   accessories shall not be declared null and void;

   
   

2. 
   The sale in
   execution of the above-mentioned movable property shall not be
   stayed pending finalization hereof;

   
   

3. 
   The Deputy
   Sheriff shall not be rendered to released the afore-mentioned
   movable property to the Applicant or her attorneys
   of record herein
   forthwith;

   
   

3. 
   Prayers 1 and
   2.2 operate with immediate effect as an interim court order;

   
   

4. 
   That the
   Applicant be granted costs of suit;

   
   

5. 
   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 Masoabi’s
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 Applicant’s mother ‘Mahlaoli
Masoabi and her brother Mapokhomane were sued by Applicant’s

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 1^st
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 1^st
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 Applicant’s
claim
against debtor was a far cry from the instant application is that,
firstly, Applicant was not party to proceedings between
1^st
Respondent and her mother and brother-in-law and, secondly, it does
not appear it is disputed Applicant left her property under
he
mother’s 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

Applicant’s right to obtain transfer of the property by setting
aside the attachment and preventing its sale in execution at
the
instance of the 1^st
Respondent mindful, Applicant’s 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 Applicant’s 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 applicant’s 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 Applicant’s favour her
mother ‘Mahlaoli Masoabi has confirmed
Applicant’s allegations and particularly that she told the Deputy
Sheriff property attached
did not belong to her. I have also perused
1^st
Respondent’s 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, Applicant’s 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 Applicant’s 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 Applicant’s
sister-in-law sued Applicant’s 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 Applicant’s 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
Applicant’s 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 1^st
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 Mapokhomane’s for not being his it
is the reason
Applicant was telephoned by Mapokhomane on attachment. I also
disagree Mapokhomane’s 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 Mapokhomane’s. 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 Applicant’s brother and hence
‘Mahlaoli’s son where goods
found was ‘Mahlaoli’s 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 ‘Mahlaoli’s
home and Applicant ‘Mahlaoli’s 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 person’s 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,
6^th
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 1^st
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:

1. 
   Attachment of
   Applicant’s 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.

   
   

2. 
   The Deputy
   Sheriff is ordered to release and restore above-mentioned property
   to the Applicant or her attorneys of record herein.

   
   

3. 
   Costs of suit.

   
   

G.N.
MOFOLO

PUISNE
JUDGE

For
the Applicant : Mr. Letsika

For
the Respondents : Mr. Tlapane