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CIV\APN\15\93

In THE
HIGH COURT OF LESOTHO

In the
matter between:

MASHEANE
MAHLOANE Applicant

and

THABANG
MOTEANE 1st Respondent

W. LEMENA
DEPUTY SHERIFF 2nd Respondent

JUDGMENT

Delivered
by the Hon. Chief Justice Mr. Justice J.L. Kheola on the 6th day of
January. 1995

This is
an application for an order in the following terms:

2. A
   rule nisi do hereby issue calling upon the respondents to show
   cause, if any, on 8th day of February 1993 at 9.30 a.m. in the

   forenoon or so soon thereafter as the matter may be conveniently
   heard why:-

   
   

1. The
   writ of execution issued out of the office of the Registrar on the
   6th November, 1992 against Applicant's immovable property

   
   

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shall not be set aside pending the determination of this application;

2. The
   intended sale of Applicant's immovable property on the 9th January,
   1993 shall not be stayed pending the determination of
   this
   application;

   
   

3. Respondents
   herein shall not be directed to pay the costs hereof;

   
   

4. Granting
   Applicant such further and\or alternative relief as this Honourable
   Court may deem fit.

   
   

2. That
   Rule l(b) should operate with immediate effect as a temporary
   interdict.

   
   

The facts
of this case are that in 1990 and in CIV\T\557\84 the first
respondent obtained a default judgment against the applicant.
Several
writs of execution were issued but the debt has never been
liquidated. On the 4th December, 1991 another writ (Annexure
"MM1"
to the summons) was issued The deputy

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sheriff
served it upon the applicant on the 25th February, 1992. The return
of service (Annexure "A" to the second respondent's

opposing affidavit) reads as follows:

"the defendant failed to show me whether he has any assets to
satisfy the demands of the writ."

What the
return of service shows is that the second respondent asked the
applicant to show him his assets. The latter failed to
show the
former his movable assets. That was all and the second respondent
made a nulla bona return (Annexure "A"). It
is interesting
to note that in his opposing affidavit the second respondent now says
that;

"Some time in February, 1992 the writ of execution was re-issued
and handed to me for execution. I again went to the applicant
and
asked him to show me his movable assets. He said he had none. I then
made a nulla bona return." (My underlining).

There is
a difference between what appears in the return of service and what
appears in the affidavit. If the judgment debtor says
that he has no
movable assets, that is different from

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when he
fails to point out such assets. Be that as it may the crucial issue
is whether or not in the execution of the writ in the
present case
the second respondent followed the procedure set out in our High
Court Rules 1980. Rule 46 reads as follows:

1. A
   party in whose favour any judgment of the court has been given may,
   at his own risk, sue out of the office of the Registrar
   one or more
   writs for execution thereof as near mm may be in accordance with
   Form V(l) of the First Schedule annexed hereto.

   
   

Provided that, except where by judgment of the court immovable
property has been specially declared executable, no such process

shall issue against the immovable property of any person until a
return shall have been made of any process which may have been
issued
against his movable property, and the Registrar perceives there from
that the said person has not sufficient movable property
to satisfy
the writ. (My underlining)

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3. Whenever
   by any process of the court the sheriff or deputy sheriff is
   commanded to levy and raise any sum of money upon the goods
   of any
   person, he shall forthwith himself or by his assistant proceed to
   the dwelling house or place of business or employment
   of such
   person, unless the judgment creditor shall give different
   instructions regarding the situation of the assets to be attached,

   and there

   
   

1. demand
   satisfaction of the writ and failing satisfaction,

   
   

2. demand
   that so much movable and disposable property be pointed out as he
   may deem sufficient to satisfy the said writ, and failing
   such
   pointing out,

   
   

3. search
   for such property."

   
   

The
procedure described in Rule 46 is mandatory and must be followed by
the deputy sheriff before he can make a nulla bona return.
He must
first demand satisfaction of the writ. In other

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words the
deputy sheriff must ask the judgment debtor to pay, the amount stated
in the writ. If he fails to pay the deputy sheriff
must demand that
he points out his movable and disposable property. If the judgment
debtor fails to point out such property, it
is then the duty of the
deputy sheriff to search for such property himself.

In
Moodley v. Hedleyl963 (3) S.A. 453 (N.P.D.) the headnote reads as
follows:

"A proper return of service of a writ of execution should show
that the execution officer first presented the writ to the
debtor,
asking for satisfaction thereof or for an indication of sufficient
disposable property wherewith to satisfy it. If he could
not find the
debtor and was consequently unable to demand of him that he satisfy
the writ or indicate sufficient disposable property,
that fact should
be reflected in the return of nulla bona for the execution officer's
failure in such circumstances to find sufficient
disposable property
would constitute the second of the two acts of insolvency visualised
by section

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8(b) of Act 24 of 1936. To that extent the second act of insolvency
is dependent upon the first in the sense that it is only where
the
first cannot be established that the second may be committed, A
return of service, therefore, which contains no information
other
than that the execution officer, after diligent search, was unable to
find sufficient disposable property to satisfy the
writ, would not
establish an act of insolvency."

In the
present case the return of service of the writ of execution seems to
indicate that the first thing the deputy sheriff demanded
was that
the applicant must point out his movable assets to satisfy the demand
of the writ. He never demanded satisfaction of the
writ in terms of
Rule 46(a). That was the first irregularity. He complied with Rule
46(b) by demanding that the applicant must
point out his assets but
he failed to do so.

The fatal
irregularity committed by the deputy sheriff was his failure to
comply with the provisions of Rule 46(c) which requires
that he must
search for such property himself. He first accepted the fact that the
applicant failed to point out his

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assets.
He was under an obligation to search the house and the premises of
the applicant in order to satisfy the requirements of
Rule 46(c).

I have
come to the conclusion that the return of service (Annexure "A")
on which the Registrar relied when she issued
a writ of Execution
against the immovable property of the applicant in terms of the
proviso to Rule 46(1) was not a proper nulla
bona return of service
of a writ of execution according to our law. It was defective in the
manner described above. On this ground
alone the application must be
granted.

Regarding
the merits there seems to be a very serious dispute of fact. The
applicant avers in his replying affidavit that in February,
1992 when
the second respondent served him with a writ of execution against his
movable assets, be showed him a television set
worth around M2,500-00
and a fridge worth around Ml,600-00. The second respondent has
already denied this in his opposing affidavit
by saying that the
applicant said that he had no movable assets. It will not be
necessary to resolve this disputed fact because
I have already
decided the matter on a point of law stated above,

In the
result the rule is confirmed with costs.

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J.K.
KHEOLA

CHIEF
JUSTICE

6th
January, 1995.

For
Applicant - Mr. Nathane

For
Respondent - Mr. Butaoane.