CIV/APN/224/87

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

PAULOSE
MOTLATSI RAJELE ...... Applicant

and

BELINA
'MALERATO RAJELE 1st Respondent.

DEPUTY-SHERIFF (Mr. L. 'Nyane) 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 23rd day of February, 1990.

The
applicant herein has moved the court for an order, against the
Respondents, framed in the following terms:

1. "Staying
   the execution of judgment in CIV/APN/224/87 pending the
   determination of the appeal therein;

   
   

2. Directing
   second Respondent to release forthwith tD Applicant the property
   attached and/or removed by him on 8th January, 1990.

   
   

3. Directing
   Respondents to pay the costs hereof only in the event of opposition;

   
   

4. Granting
   Applicant such further and/or alternative relief."

   
   

The
Respondents intimated their intention to oppose the application.
Affidavits were duly filed by the parties.

Very
briefly, it is clear from the affidavits that the gist of the relief
sought by the applicant is the stay of execution of maintenance
order
which the first defendant has obtained,

2

pendente
lite, against the applicant. Assuming the correctness that the order
was obtained pendente lite, it stands to reason that
the proceedings
in which the order was granted were interlocutory. It is trite law
that no appeal lies against the decision given
in interlocutory
proceedings unless, of course, it is by leave of the court of appeal.

It is
common cause that although the appeal has been lodged to the court of
appeal against the decision of the High Court granting
maintenance
order, pendente lite, the former court has not given a decision in
the matter. That being so, the decision of the High
Court still
stands good.

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
proceedings.

It has,
however, been pointed out that at the time he attached and removed
applicant's property in execution, the Deputy Sheriff's
attention was
drawn to the fact that some of the property, thus attached and
removed, belonged to certain people and not the applicant.
That being
so, it seems to me that before he could sell the property by auction
sale to satisfy the judgment for maintenance order
agains the
applicant, the second Respondent would first have to comply with the
provisions of Rule 51 of the High Court Rules 1980
i.e. institute

3

inter-pleader
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.

It is
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.

This
being a family dispute I would not make an order as to costs.

B.K.
MOLAI

JUDGE

23rd
February, 1990.

For
Applicant : Mr. Pheko

For
Respondent : Mr. Maqutu.