CIV\APN\253\92

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

UNIVERSAL
ENGINEERING(PTY)LTD Applicant

v

THE
DEPUTY SHERIFF 1st Respondent

L. NYANE
2nd Respondent

NATIONAL
TRADING BLOEMFONTEIN

(PTY) LTD
3rd Respondent

RULING

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 27th day of July, 1992

It
appears that in this matter, there are two things to consider.

First,
the question of spoliation and next the question of interpleader
proceedings.

It would
appear that the respondent\applicant who was the applicant in the
main application was granted an order releasing to him
on spoliation
proceedings a certain vehicle concerning which he complained that he
had been despoiled of.

2

A few
days afterwards a deputy sheriff through his counsel appeared in
chambers before this Court asking that the order given earlier
be
stayed - i.e. the order which had been given in favour of the
applicant in the main application.

The
applicant\respondent in the subsidiary application was granted an
order staying the final order which had been given on the
2nd July
1992 and was thus granted stay of that order pending the finalisation
of the application for rescission which is before
me today.

I have
heard submissions on behalf of both parties. The biggest problem with
regard to spoliation is that once it is maintained
by the Court that
it has been properly brought before it and that the party complaining
of having been despoiled has made out its
case the order that ensues
thereon is final.

To my
mind, there is no procedure whereby a Rule or an Order granted in
that respect can be subject to further application by way
of what
happens in ordinary motion proceedings in which case, the order given
there is in the nature of an interim order which
would be subject to
subsequent hearing before finality is reached.

In
spoliation once the party bringing spoliation proceedings

3

has made
a good case that is the end of the matter. As far as

spoliation
is concerned, the party obtains his order and the position is
restored to the original position which was obtaining between
the
parties before the party who complained of having been despoiled was
so despoiled. So a party who is aggrieved by an order
given under
such circumstances, to my mind, has got only one option,namely, to
sue.

The
applicant in the main application has attached annexure "R1"
to his Founding papers and thus shows that the vehicle
which is the
subject matter of these proceeding was released to Mutavosic Milosav
by the owner of the vehicle one Miodrag Micovic
reflected as such in
terms of Annexure "R1" which is attached to the papers.

Mere
possession of a Writ of Execution in the hands of a deputy sheriff
which is not even attached to the applicant\respondent's
papers does
not entitle him to attach and remove any property which happens to be
on the premises of a judgment debtor even when
proof exists that such
property belongs to a different party. So as far as the spoliation
aspect of the matter is concerned, what
I have just said would tend
to take care of that for attachment and removal of such property
under colour of an undisclosed Writ
would amount to spoliation of the

4

innocent
third party. There is nothing to show that Micovic himself was a
party to proceedings in CIV\T\148\89. Only Milosav was.

With
regard to interpleader proceedings these have been outlined under
"interpleader" in l(a) of Rule 51 which shows that

"Where any person alleges that he is under any liability in
respect of which he is or expects to be sued by two or more parties

making adverse claims in respect thereto, the applicant may deliver a
notice called an "interpleader notice" to the claimants".

The rule
goes further under "b" to show that

"Where there are conflicting claims as regards property attached
in execution, the sheriff or the deputy sheriff shall have
the rights
of an applicant and the execution creditor involved shall have the
rights of a claimant".

So in
this case one would have expected at least the deputy sheriff to have
regarded himself as the applicant because he is the
one who is in
possession of the property which is being claimed not only by the
person who is a party to these proceedings but
by another who was not
known at all so one would foresee or immediately realise that there
are conflicting claims in that regard.
Thus he is the one who would
have cause to expect to be sued.

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But
"alas" he has set out that he was expecting the applicant
in the main application to have moved the interpleader proceedings.

In my
humble view that would have turned the rule on its head if that was
the case.

In the
circumstances, the order that was given on the 7th July 1992, staying
the order which had been given earlier on the 2nd July
1992 pending
the finalisation of the restoration application is discharged with
costs.

JUDGE

27th
July, 1992

For
Applicant : Mr. Hlaoli

For
Respondent: Mr. Matooane