IN THE HIGH COURT OF LESOTHO
In the matter between:
CIV/TRIAL/485/2008
SECURITY LESOTHO (PTY) LTD APPLICANT
AND
MASUPHA M KLASS 1ST RESPONDENT
SECURITY LESOTHO (PTY) LTD 2ND RESPONDENT
MESSENGER OF COURT (MR MASENYETSE) 3RD RESPONDENT
JUDGMENT
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 02ND DAY OF AUGUST 2011
IDENTITY OF THE PARTIES in this application and the original action.
This is a matter of an application for stay of execution of the writ – dated 7th June 2010 and also the stay of the Notice of Sale dated 27th January 2011 of the applicant’s immovable property. It was due to be sold in about 2 days’ time from the date of the hearing of this application. The said sale is in execution of the said writ. The whole process is to be put on halt, pending the finalization of the present application.
The applicant in this matter is one MATHABO KLASS, a Mosotho female adult currently residing at KATLEHONG, MASERUCity, in the district of MASERU. The 1st respondent is MASUPHA KLASS, a male adult Mosotho currently residing at KATLEHONG, MASERU City, in the district of MASERU. He was the defendant in CIV/T/485/2008. The said action was against him alone. The writ – purporting to sell applicant’s house is also issued out against him alone. These two parties – the applicant and the 1st respondent, are married to each other by civil rites and in community of property and of profit and loss. Their marriage still subsists. They are currently living together as a husband and a wife. They live together with their children within the walls of an immovable property as what is regarded as their family home. This is the home which the 2nd and the 3rd respondents want to sell in execution of the writ issued out of this court, in order to enforce the default judgment entered against the 1st respondent in CIV/T/485/2008. The 1st respondent, Mr Masupha Klass was sued alone by the 2nd respondent for payment of damages
The 2nd respondent is SECURITY LESOTHO (PTY) LTD[hereafter referred to as SECURITY LESOTHO], a company with limited liability duly incorporated in accordance with the company laws of The KINGDOM OF LESOTHO. Its registered head office or main place of business, is at 19 MASERU INDUSTRIAL ESTATES, SEBABOLENG, MASERU. The 3rd respondent is the deputy-sheriff – commonly called the messenger of court. His name is Mr MASENYETSE. He was entrusted with the service of the writ of execution in CIV/T/458/2008.
SEQUENCE OF EVENTSleading to the present application.
On the 11th November 2008, SECURITY LESOTHO (PTY) LTD– 2nd respondent in this application, issued out of this court, summons against MASUPHA M. KLASS, the 1st respondent herein, who was then, the defendant in CIV/T/485/2008. In this action SECURITY LESOTHO claimed payment of an amount of M37,433.00 together with interest at the rate of 18.5% per annum a tempore Morae plus costs of suit.
BASIS OF THE ABOVE CLAIM
This appears to be a claim for damages, arising out of the alleged collision between the plaintiff’s motor vehicle 1999 NISSAN hardbody LDV with registration letters and numbers AV 342. It is alleged to have collided with the motor vehicle with a special permit at the time being driven by Mr MASUPHA M KLASS. There is no mention of whether or not the plaintiff’s motor vehicle was moving or stationery. There is no allegation regarding who was driving that SECURITY LESOTHOmotor vehicle. The collision is alleged to have been caused by the sole negligence of MASUPHA KLASSin numerous ways set out in paragraph 6 of the DECLARATION inCIV/T/485/2008.
The perusal of the record does not show that NOTICE OFINTENTION TO DEFENDthat action was filed. Be that as it may. On the 4th February 2008, NOTICE TO FILE PLEAwas served upon the defendant’s attorneys of record at that time. There is no plea filed of record. On the 25th March 2009 a NOTICEof SET DOWNfor an application for a default judgment to be entered against the defendant/1st respondent was filed. On the 30th of March 2009 the application for default judgment to be entered as prayed against the defendant Mr MASUPHA KLASSwas made.
There is no evidence led to establish liability. There is no proper and adequate assessment of damages claimed. Nevertheless the default judgment was entered against the defendant/1st respondent – Mr MASUPHA KLASSas claimed in the summons. In this instance the default judgment was request because of the defendant’s failure to file his plea.
In terms of RULE 46 HIGH COURTRules 1980, there were a number of options open to the now judgment creditor – SECURITY LESOTHO. Those options are found at the beginning of this rule. The relevant portions are set out thus:-
“46 (1) A party in whose favour any judgment of the court has been given may, at his own risk, sue out of the office of the REGISTRAR one or more writs for execution thereof as near as may be in accordance with Form V(1) of the First Schedule.
Provided that, except where by judgment of the court immovable property has been specially declared executable, No such process shall issue against the immovable property of any person until a return shall have been of any process which may have been issued against movable property and the REGISTRAR perceives therefrom, that the said person has not sufficient movable property to satisfy the writ.”
It is abundantly clear, that according to this rule, the execution of the writ against the immovable property of any person is specifically prohibited. The exact terms used in this provision make the prohibition mandatory. The prohibition is set out thus:- “No such process shall issue against the immovable property of any person.” [My underlining).
There are certain circumstances under which such mandatory prohibition can be overcome. This prohibition, of executing against immovable property can be overcome by lawful means. In terms of this rule, there must be in the first instances, the court order and/or judgment which specifically declares an immovable property executable prior to the issuance of the writ to execute against immovable property.
There are three requirements which must be satisfied according to this rule before the writ can be executed against an immovable property of any person.
Firstly, There must be a judgment or court order specifically declaring that the judgment may be executed against the particular immovable property or alternatively where there is no such judgment or order two things must happen.
(a)There must be a return of service of the writ of execution which was issued out of this court to be executed against the movable property in the 1st instance.
(b)It is from this return where the REGISTRAR perceives that the judgment debtor has insufficient movable property to satisfy the writ. It is the registrar who should make that requisite perception of insufficiency of movable property to satisfy the writ. Anybody else who is not the REGISTRARcannot make that perception of insufficiency of the movable property to satisfy the writ.
The recommendation and/or request endorsed on the face of the return by the deputy-sheriff, cannot under any circumstances be regarded as the judgment or court order designated in the rule to authorise execution of the writ against the immovable property. What the deputy-sheriff has done, on the face of Annexure GC – return of the service of the writ in CIV/T/485/2008 was to express his or her opinion. There is no judgment obtained by SECURITY LESOTHO, which declares the immovable property of Mr and Mrs Klass executable in terms of rule 46 (1) HIGH Court Rule 1980.
In the second instance, that is to say, where there is no judgment and/or court order – declaring a particular immovable property executable, there must be a return of service of the writ issued in the first place for the purpose of executing the writ against movable property.
It is from this return of service of such a writ where the REGISTRARmakes that requisite perception, that the person [meaning the judgment debtor] has not sufficient movable property to satisfy the writ. There is no such return filed of record in this case. The return filed by the deputy-sheriff – Annexure “GC” shows a few things, amongst which is the deputy-sheriff’s inability or failure to effect service and the grounds or reasons for such failure. Deputy-sheriff claims that he was unable to serve for the following reasons:
“Firstly, defendant’s movable goods as his car belongs
to the bank;
Secondly, gates are always closed.”
I have attempted to reproduce the return of service – Annexure “GC”. I do encounter great difficulties when I try to understand exactly what went on at the place and time where the service of the writ – Annexure “GC” was effected. The writ should have been served in terms of Rule 46 (3) HIGH COURTRules 1980. The deputy-sheriff should have proceeded to the
(1) dwelling house or
(2) place of business or
(3) employment of the judgment debtor.
In his return of service the deputy-sheriff does not show to which one of these three designated places she/he had proceeded. On arrival at any of the designated places he or she should do three things:-
“(a) demand satisfaction of the writ and failing satisfaction
(b) demand that so much movable and disposable property be
pointed out etc ….failing which
(c) search for such property.
There is nothing in the return – Annexure “GC” which gives an indication of what exactly the deputy-sheriff did. Because of what is given as a ground for requesting that the return be considered as a Nulla Bona – e.g. “Gates are always closed at Race Course”, the impression is given that he went to one place only “at the racecourse”. Did he or she ask to be allowed to enter there at? It does not appear like she/he requested to enter. She or he does not say whether or not this was the place of employment, business and or a dwelling house. It does not appear like the deputy sheriff attempted service of the said writ anywhere else except at the race course. Why was the deputy-sheriff going to the one and the same place always as he or she claims?
The deputy-sheriff appears to have concluded without asking for satisfaction of the writ by production of movable goods or search for the same that they are not sufficient. He/she found the car. She or he does not say where and how he found the car. He or she claims that his car [presumably, the defendant – Masupha Klass] belongs to the bank. As I have mentioned earlier on, Mr and Mrs Klass live together with their children in their family home which is the subject matter of this application. According to Mrs Klass – the applicant herein, there is movable property in the house and outside of it, that can satisfy the writ. The attorney for SECURITY LESOTHOdoubts that assertion. His reasons for entertaining such a doubt are not related directly to the satisfaction of the writ – or the alleged judgment debt. He does not consider payment of the judgment debt only. He claims, contrary to the provisions of Rule 46 (2) High Court Rules 1980 unrelated costs of advertising the sale of their home which is not part of the initial alleged debt.
Who should know best, the amount and value of the movable property which these parties [Mr and Mrs Klass] have inside and outside their house? The owner or the attorney for the SECURITY LESOTHO? The answer to this question is not important. What really matters is that there must be a return of service of the writ issued out in the first place to be executed against the movable property. It is that return from which the REGISTRARof the High court should make her perception regarding the sufficiency of the movable property, for the satisfaction of the writ, not the attorneys or anyone else.
It is not denied that the applicant and the 1st respondent are married civilly and in community of property. Therefore the applicant has the rights in the property in question as the joint owner by virture of her marriage to the 1st respondent. Her rights in that property cannot be burdened with claims for damages against her husband without first being given an opportunity to be heard. On this ground alone, this application for stay of the execution of the writ against her property must succeed. There is no judgment specifically against her. She was not a party to the suit which resulted in the issuance of the writ against her husband. She cannot be made a party to the execution of the judgment against her rights without being given an opportunity to be heard. She was deliberately and intentionally left out of the suit for damages against her husband. Why is she being made to suffer the enforcement of the judgment of the action when she was not a party in that action? Their children too if they are still minors cannot be thrown out in the cold without notice or prior arrangements by the SECURITY LESOTHOand its attorney.
The deputy sheriff respected the rights of the bank in the movable property. E.g. the car of the defendant/1st respondent. Under the same breath the deputy sheriff proposes to trample all over the rights of the other people in the immovable property in question. The rights of the bank in the 1st respondent/Defendant’s car are recognized and protected. The rights of the applicant in the immovable property must be recognized, accepted and also be protected. It was for these reasons the application was allowed.
K.J. GUNI
JUDGE
For Applicant: Ms Thabane
For 2nd Respondent: Mr Grundling
