HIGH COURT OF LESOTHO
MOTLATSI RAJELE ...... Applicant
'MALERATO RAJELE 1st Respondent.
DEPUTY-SHERIFF (Mr. L. 'Nyane) 2nd Respondent
by the Hon. Mr. Justice B.K. Molai on the 23rd day of February, 1990.
applicant herein has moved the court for an order, against the
Respondents, framed in the following terms:
the execution of judgment in CIV/APN/224/87 pending the
determination of the appeal therein;
second Respondent to release forthwith tD Applicant the property
attached and/or removed by him on 8th January, 1990.
Respondents to pay the costs hereof only in the event of opposition;
Applicant such further and/or alternative relief."
Respondents intimated their intention to oppose the application.
Affidavits were duly filed by the parties.
briefly, it is clear from the affidavits that the gist of the relief
sought by the applicant is the stay of execution of maintenance
which the first defendant has obtained,
lite, against the applicant. Assuming the correctness that the order
was obtained pendente lite, it stands to reason that
in which the order was granted were interlocutory. It is trite law
that no appeal lies against the decision given
proceedings unless, of course, it is by leave of the court of appeal.
common cause that although the appeal has been lodged to the court of
appeal against the decision of the High Court granting
order, pendente lite, the former court has not given a decision in
the matter. That being so, the decision of the High
It was on
the basis of a valid decision of the High Court that a writ of
execution had been issued and the Deputy Sheriff carried
it out. The
fact that an appeal has been lodged to the court of appeal does not
automatically render a judgment of the High Court
invalid. I am not
convinced, therefore, that it would be proper for this court to order
stay of execution which is being carried
out on the basis of a valid
judgment of the High Court merely because an appeal has been lodged
for leave to appeal against an
order granted in interlocutory
however, been pointed out that at the time he attached and removed
applicant's property in execution, the Deputy Sheriff's
drawn to the fact that some of the property, thus attached and
removed, belonged to certain people and not the applicant.
so, it seems to me that before he could sell the property by auction
sale to satisfy the judgment for maintenance order
applicant, the second Respondent would first have to comply with the
provisions of Rule 51 of the High Court Rules 1980
summons/proceedings against the claimants of the attached property,
otherwise this application is not granted in terms
of prayers (a) and
(b) of the notice of motion.
worth mentioning that yesterday when the judgment was delivered in
open court I mistakenly said the application was granted
in terms of
prayer (a) and (b) of the notice of motion. This morning I told the
Assistant Registrar (Miss Sello) to call the two
counsels before me
in order to advise them of the correction I wished to make in the
judgment. Neither of them appeared before
me and I proceeded to make
the necessary correction so that the decision reads: application is
"not granted" instead
of "granted" in terms of
prayers (a) and (b) of the notice of motion.
being a family dispute I would not make an order as to costs.
Applicant : Mr. Pheko
Respondent : Mr. Maqutu.
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