C OF A (CIV) NO.20\92
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
JAMES MASITHA TENTE Appellant
and
MISS GUGU SELLO 1st Respondent
MR. LEHLOENYA MATETE 2nd Respondent
F.C. PARSONS 3rd Respondent
MESSRS JOBODWANA, PHEKO & CO. 4th Respondent
HELD AT MASERU Coram:
STEYN J.A.
BROWDE J.A.
KOTZE' J.A.
JUDGMENT
During 1987 the third respondent instituted an action against one Varughese for payment of money allegely owing to the third respondent.
Varughese was arrested suspectus de fuga and as a result a bond known as an arrest-bail bond was executed on 22 April 1987 on behalf of the School Secretariat of the Lesotho Evangelical Church. In terms of that Bond the secretariat undertook to pay M6000 to the sheriff in the event of Varughese failing to appear at the trial, remaining within the jurisdiction
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of the High Court until the delivery of judgment and abiding such judgment.
Before the trial was concluded Varughese left Lesotho and judgment was entered in favour of the third respondent on September 1989 demand was made on the school for payment under the Bond. The demand went unpaid and without any further process having been issued against the school a writ of execution was issued from the office of the first respondent at the instance of the third respondent whose legal representatives were the fourth respondent.
After representations by the attorney for the school the first respondent purported to cancel the writ. However this action was contested by the fourth respondent and as a result and on 9 May 1990 the first respondent authorised execution of the writ.
Insofar as the school was not a judgment debtor -no process having been issued against it was clearly impermissible, if not to issue the writ, then certainly to carry it into execution. The school was not a party to the litigation and if money became payable in terms of the bond it could only be recovered after due process had been served, judgment obtained against the school and remained unsatisfied. I agree with the submission made by Mr Tip
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Tip who appeared on behalf of the appellant before us, that no one should be labelled and acted against as a debtor without first having had the opportunity to complain of oppression or duress, or to advance some other cause which the law may recognise as a valid defence to the claim. Rule 46 (1) of the rules of Court requires that the writ should be "as near as may be in accordance with Form V(1) of the First Schedule". That form provides that the sheriff be directed to attach the goods of the defendant, which clearly envisages a person who was party to litigation which has ended in judgment against him. I need say no more, therefore than that 'in my. opinion the execution of the writ in casu against the property of the school was unlawful. Pursuant to the issue of the writ, and according to the return of service of the deputy sheriff on the 30th January 1990 various items of office equipment, the property of the school, were attached. Appellant, who was the applicant in the court below, put it thus"-
"During about February 1990 Second Respondent, accompanied by a colleague of his, attached from my office at Morija property under my control, including computers, type-writers, filing cabinets, desks and chairs".
On 16th May 1990 the appellant was granted a rule nisi by
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Molai J. calling upon the respondent to show cause on 11 June 1990 why:-
"A 1. The writ of execution should not be set aside.
The 3rd and 4th respondents shall not be interdicted from suing out or causing to be sued out against the applicant any other writ of execution in CIV\T\223\87 (the action against varughese) and 1st and 2nd Respondents interdicted from acting in any manner- whatsoever on the strength of such Writ insofar as it may purport to be authority for the attachment in execution of any of applicant's property".
There followed claim for costs against the respondents and a claim for money expended by the applicant in transporting the goods when they were retrieved from the 2nd Respondent.
On the return day Lehohla J. discharged the rule and found that
the applicant claimed the property belonged
to him and that he should have disclosed
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that this was not the case, and
The fact that the applicant was not a judgment debtor was a technicality which could be overlooked in the circumstances of the case.
In regard to (ii) above I have already stated that in my view the writ was invalid and I agree with Mr Tip who submitted that execution in satisfaction of a debt is and should be
As regards (i) I think that while in the founding affidavit the appellant often refers to the property attached as "my property"
he also states that he is employed at Morija as education secretary for the Lesotho Evangelical Church schools and that the attachment
was "from my office at Morija (of) property under my control". It seems clear enough therefore that there was no non-disclosure
which should have non-suited the appellant even although he loosely referred in other parts of his affidavit to "my property".
When faced with a denial that the property was his the appellant, in reply, stated"-
"I do not know the significance of the deponent saying the property seized does not belong to me. The 2nd respondent was sent...
to seize property belonging to
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the schools secretariat, which is the collective name for members of the staff under any control and I. Property was duly seized from me and to suggest that I am not entitled to the court's protection against the unlawful seizure of property in my possession and under my control, whether or not it is my personal property is ridiculous in the extreme..."
The intemperate language is unfortunate but it is clear that there was no intention on the part of the appellant to mislead the court into believing the property helonged to him and I am of the view that the learned Judge erred in discharging the rule on the grounds of a so-called non-disclosure.
In argument before us Mr. Pheko for the 4th Respondent, intimated that all he was interested in was the question of costs. The rule against the 4th Respondent firm was discharged in the court below and, therefore, the firm really had no further interest in the matter. Mr. Pheko pointed out however that the notice of appeal was couched in wide terms and that it read as if the appellant was to seek a reinstatement of the rule as against the 4th respondent thus involving the latter in the costs of the application and the appeal. There is substance in that submission. Indeed it was only towards the end of the argument before us and in his reply that Mr Tip conceded that there was no merit in the case against the 4th respondent, a firm of
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attorneys who at all times appeared to be acting in what they considered to be in the best interests of their clients. Consequently, I am of the view that the 4th respondent is entitled to its costs.
There remains, therefore, the relief sought against the third respondent only, namely the setting aside of the writ of execution sued out in Civil Trial 223 of 1987. I have already indicated my view that the writ was invalid and as, in effect, there is now no opposition to the order sought there is no reason why it should not be granted.
In the result my order is:
The appeal against the third respondent is upheld with costs and the order of the court a quo, insofar as it affects the third
respondent, is altered to read "Prayer 1 of the rule nisi is confirmed with costs.
The appeal against the order infavour of the 4th respondent is dismissed with costs.
J.P. KOTZE' J
JUDGE OF APPEAL
I agree
J.H STEYN
J. BROWDE
Delivered at Maseru this 22nd day of January, 1993.
For the Appellant :
For the Respondents :
