CIV/APN/103/89

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MOKHALI
SHALE Applicant

and

MAHLOMOLA
SHALE AND 14 OTHERS Respondents

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 4th day of December,
1990

On the
1st May, 1990 the applicant obtained an interim order restraining the
14th respondent from disposing of appli­cant's
sixteen head of
cattle and ordering him to release them to the applicant upon payment
of security, for safe keeping pending the
finalization of an action
instituted by the appli­cant against respondents in the Mafeteng
Magistrate Court.

The order
has been fully complied with by the 14th respondent and must be
confirmed. The only question remaining to be decided is
that of
costs.

2

Mr. Mda,
counsel for the applicant, submitted that the 1st respondent had no
reason to oppose this application. In his own affidavit
he has stated
that he together with the other respondents have always been willing
that applicant's cattle be released from the
pound upon payment of
security in terms of the Laws of Lerotholi. It is surprising
therefore why the 1st respondent is opposing
an order directing what
is consistent with his wishes.

According
to the evidence placed before this Court by the 1st respondent, the
applicant paid security on the 20th May, 1989 and
his sixteen head of
cattle were released to him on the same day. The security was paid to
the 14th respondent in whose pound the
cattle were kept. Two days
later, on the 22nd May, 1989, the 1st respondent was served with the
interim order, without any accompanying
affidavit. It is not clear
why the applicant decided to go ahead and serve the 1st respondent
with an interim order requiring him
to release or cause to be
released sixteen head of cattle to the applicant when the latter knew
very well that the said head of
cattle had been released to the
applicant by the 14th respondent. I am of the opinion that the 1st
respondent was entitled to oppose
the application on the ground that
the said cattle had been released two days before he was served with
the interim order. He was
no longer in a position to comply with the
order and he was entitled to place the facts before the Court.

3

I do not
agree with the suggestion that the intention of the 1st respondent is
just to waste the Court's time and to cause the applicant
to incur
unnecessary costs. There was no reason why the applicant served the
1st respondent with the interim order when he knew
that two days
before such service the 14th respondent had released the cattle. It
seems to me that he was actually inviting the
1st respondent to state
what his attitude was towards the application and he cannot now say
the 1st respondent ought not to have
opposed the application. He had
to inform the Court that it was impossible for him to comply with the
court order.

Mr. Mda
submitted that the 14th respondent must pay costs because he acted
contrary to the provisions of section 13 (4) (c) of the
Laws of
Lerotholi in that he insisted on a condition not provided by the law,
when he demanded payment for damages despite the
fact that the
applicant had already taken the matter to Court as a dissatisfied
party and the 14th respondent was aware of this.
He insisted that he
was going to sell the cattle despite the fact that he was aware that
the applicant had already taken the matter
to Court.

Section
13 (4) (c) of the Laws of Lerotholi reads as follows:-

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"The Chief or Headman in charge of a pound shall, before
releasing any impounded stock, demand from the owner the amount of

any assessed damages and the pound fees. If the owner shall refuse to
comply with the demand or shall deny his liability, the owner
shall
forthwith state his objection to the Chief or Headman in charge of
the pound, who shall give notice to all parties concerned,
and
thereafter, unless sufficient security is given, ha shall detain the
stock until the dispute shall have bean settled between
the parties:
Provided that if the dispute is not settled within 14 days or
satisfactory evidence given within that time that court
proceedings
have bran instituted, the Chief or Headman may sell such of the stock
as shall be sufficient to pay for the pound fees
and damages in
accordance with sub-rule (5) of this rule."

The
stages described in section 13 (4) (c) above are very clear. The
first stage is that the chief or headman in charge of the pound
must
demand payment of the assessed damages and the pound fees The second
stage is that if the owner of the animals denies liability
he must
pay sufficient security before his animals can be released to him.
The third stage is that if the dispute is not settled
within fourteen
days or satisfactory evidence given within fourteen days that court
proceedings have been instituted, the chief
or headmen may sell the
stock to pay for damages and pound fees.

It seems
to me that in the instant case the chief demanded payment of damage
and pound fees. The owner of the stock refused to comply
with the
demand and also denied liability. After that the chief and the owner
of the stock did not discuss the question of payment
of sufficient
security and the chief continued his detention of the stock. I think
up to this space

5

the chief
was entitled to refuse to release the stock. Then the owner of the
stock instituted court proceedings in the Nafeteng
Subordinate Court.
The applicant's Counsel wrote a letter to the chief demanding the
release of the stock upon payment of sufficient
security for damages.

In his
founding affidavit the applicant deposes as follows:-

"5:1 Having failed to negotiate a reasonable settlement with the
Respondents, on the 13th April, 1989 I instructed my attorney
MR.
A.P.S. Mda to sue out summons against the Respondents herein for the
release of my aforesaid livestock, which he did in CC
29/89 in the
Mafeteng Subordinate Court.

5:2 On the 10th April, 1989 my counsel adv. Z. Mda wrote a letter to
the thirteenth Res­pondent requesting him to release the
said
cattle to me for safe keeping pending the finalisation of the
aforesaid action. This Honourable Court is referred to annexure

marked "A".

5:3 On the 20th April, 1989 I attended the offices of the thirteenth
respondent and met him in person; he advised me that he received
the
letter from my counsel and had taken note of the contents the rain
but that he was not prepared to release the cattle as advised
save if
he were to be so ordered by the above Honourable Court. The Principal
Chief further warned me that if I was not in possession
of such Court
0rder by the 1st Nay 1989 he would sell my sixteen head of cattle by
public auction,"

In answer
to the above allegations the 14th respondent deposes as follows:-

"AD
PARA 5:

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5.1 Save to deny the question of negotiations at my offices and to
say that I have not been cited as a defendant in said CC 29/89
I have
no knowledge of contents herein.

5.2 Contents herein are admitted.

5.3 Save to say that I said that I would only release the cattle if
he paid for the damages to the crops and the pound, contents
heroin
are admitted. 1 further told appli­cant that if fourteen (14)
days expires the cattle will be sold by public auction."

I agree
with the submission that the 14th respondent acted contrary to the
second proviso to section 13 (4) (c) of the Laws of Lerotholi
by
insisting that unless the appli­cant paid the assessed damages
and pound fees, he would sell the cattle after the expiry
of fourteen
days. The second proviso makes it quite clear that if the owner of
the stock produces satisfactory evidence within
fourteen days that
court proceedings have been instituted the chief or headman in charge
of the pound is no longer entitled to
sell the stock. His duty is to
demand sufficient security from the owner of the stock and once
payment of security is made he must
release the stock.

The
applicant was entitled to come to -Court urgently to stop the
unlawful sale of his stock and I am of the view that he is entitled

to costs because if the 14th respondent had strictly complied with
the provisions of law the applicant would not have been forced
to
incur unnecessary costs of instituting this application.

In the
result the 14th respondents and the 15th respondent are ordered to
pay applicant's costs, jointly and severally, on

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paying
the other to be absolved.

J.L.
KHEOLA

JUDGE

4th
December, 1990.

For
Applicant - Mr. Z. Mda

For
Respondents - Mr. Moorosi