CIV/T/238/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

MOGGEE &
DU TOIT Plaintiff

v

P.P.
MAKHOZA Defendant

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 24th day of May,1985.

This is
an application made by the applicant who successfully obtained
judgment against the respondent, an Incola of this Court,
as a result
of which a writ was taken out by the applicant against the respondent
deman­ding payment of an amount of some R13,000-00
made up of the
capital of that judgment together with the taxed costs of the action
which led to the judgment.

On the
28th June, 1984, an amount of R12,732-69 was apparently paid by the
respondent to the Registrar of this Court whose receipt
is annexed to
the papers before me and which says that this amount was received
from W.C.M. Maqutu & Company of Maseru for
part payment in
CIV/T/44/82. There is also added to that legend the further words
"full payment". A further receipt of
the same date is also
part of these papers for the amount of R1,000-00 said to be for
security for costs in CIV/T/44/82.

I need
not trouble myself with the purpose of the second payment of a
thousand rand, but it is common cause that the amount of Rt2,732-69

which was paid by the respondent to the Registrar is the amount that
was the subject of the writ taken out by the applicant and
which
shortly before such payment had been being presented by the sheriff's
deputy to the respondent.

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Almost
simultaneously with this payment to the Registrar, the respondent
launched an ex parte application for attachment ad fundandam

jurisdictionem in an action which the respondent alleged that he
intended to insti­tute against the applicant in this Court
and in
conseque­nce of which application, an Order was made attaching
the money in the hands of the Registrar ad fundandam
jurisdic-tionem.

Relying
upon that attachment no doubt, although not pleaded, the respondent
then instituted proceedings in this Court against the
applicant for
payment of some R30,000-00 as damages on a cause of action which I
need not consider and which is not relevant to
these proceed­ings
now before me.

Appearance
to defend that action was entered by the present applicant,
particulars were sought and supplied but no plea has been
filed.
Application has now been brought for the setting aside of that
attachment ad fun-dandam jurisdictionem at the instance of
the
applicant and I have now to consider whether the attachment was
properly made and if not whether I should set it aside.

Rule 6 of
the Rules of this Court dealing with the circumstances under which an
application for attachment of property of a peregrinus
may be made
provides that the applicant in such an application must satisfy the
Court firstly that he has a prima facie cuase of
action against the
peregrinus and secondly, that the property sought to be attached is
the property of the peregrinus or that the
peregrinus has some right
in the property.

Those two
requirements are the ones that have been dealt with in argument
before me and which have been the basis of the attack
by the
applicant on the attachment.

There was
some dispute on the papers as to where the onus lay. I am satisfied
that the respondent has rightly conceded that the
onus was on the
respondent,that is, the applicant in the attachment proceedings
themselves,

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to
satisfy the Court that granted that Order, and again in this Court
that the property sought to be attached is the property of
the
applicant oh that the applicant has some right in it, and that there
is a prima facie cause of action.

In so far
as the question of a prima facie cause of action is concerned, no
reference whatsoever is made in the ex parte application
brought by
the respondent to indicate the nature of the action nor is there even
a hint of its nature. The Court which granted
the attachment did so
without any information whatsoever being placed before it, from which
it could in any way draw any infe­rence
that the respondent had
in fact a prima facie cause of action.

I am
satisfied, therefore, that the achment was wrongly made on that
ground alone. Mr. Edeling, who appears for the respondent,
has argued
before me that having the advantage of the pleadings in the action
instituted by the respondent in terms of such attachment,
I should
refer to those pleadings and see for myself that in fact there are
allegations in those pleadings of matters amounting
to a prima facie
cause of action. My view, however, is that the only place where I can
look for allegations of facts amounting
to a prima facie cause of
action is the application for attachment itself sworn to on oath by
the applicant. What may or may not
be alleged in pleadings
subsequently before this Court is a matter for conjecture and may be
totally denied by the defendant in
those proceedings so that the
allegations themselves might then amount to a nullity.

There is
then the question whether the property which was attached by the
respondent was the property of the applicant or whether
he had some
right in that property capable of attachment. It is commonly accepted
that an attachment of a personal right to property
is a proper
attachment. A debt in the hands of any third person certainly is
always capable of attachment. I have been referred
to the case of
Verster vs. Cook & Co.1912 C.P.D. 123 where an attempted
attachment of a debt in the hands

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of the
applicant himself was refused. While I am not en­tirely satisfied
that that judgment, which I have not had an opportunity
of reading,
may not be correct, it is not necessary for me to embark upon any
such enquiry since in any event, the money allegedly
attached by the
respondent was paid to the Registrar and attached in the Registrar's
hand. So the question of the attachment of
debt in the hands of the
applicant himself does not arise.

The
respondent has argued that what was attached was a right to the money
or to payment of the money by the Registrar and that in
so attaching
the money itself, any subsidiary rights that were vested in the
applicant by the payment to the Registrar were attached
by that
attachment. The respondent has failed to satisfy me that the
applicant has any right at all in the property which was attached.

There is no authority for payment of such money to the Registrar nor
should the Registrar properly have received payment of such
money.
Whatever may have been stated in the receipt issued by the REgistrar,
no possible right could have passed either notionally
or legally to
the applicant by such payment.

The money
remains at the command of the respondent to be uplifted by him as he
chooses and no rights have vested in the applicant
in such money.
Respondent has argued that by paying the money to the Registrar, the
applicant has in effect either pointed to a
source of pay­ment or
established a person burdened with the obligation to pay to the
applicant when called upon by the applicant
and that in some way or
another by these means the res­pondent has passed a right to the
applicant which could have been attached
ad fundandam jurisdictionem.

It is my
understanding of the law relating to the creation of a person as
adjectionis solutionis that they may rightly be sued for
payment of
moneys held by them only where the payment to them in that capacity
was made by agreement between the parties. In no
way can a debtor
unilaterally appoint some third person as the responsible party
either in his place or as his agent to account
to a creditor for the
amount of the debt. The respondent, by paying the

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Registrar,
had done no more than if he paid the money to some stranger who holds
no official position and the payment to the Registrar,
as would have
been any payment to such a stranger, is a meaningless payment and has
brought about the creation of no rights in
favour of the applicant in
these proceedings. On that ground also, therefore, I am satisfied
that the attachment was im­properly
made and should be set aside.

I have
been urged that I am vested with a discre­tion to set aside the
order or not and that having regard now to the entire
content of all
the papers before me it would be an exercise in futility for me to
set aside the attachment which could probably
be reinstated; that in
any event a case is already well advanced in which the respondent's
claim is set out against the applicant;
and that 1 should in the
exercise of my discretion, therefore, allow the matter to continue
and leave the attachment extant.

That
argument loses sight of a critical situation so far as the applicant
is concerned. It is common knowledge that while prescription
of debts
of the kind which is the subject of the action against the applicant,
is eight years in this Kingdom, it is only three
years in the
Republic of South Africa. If, therefore, this attachment is set aside
and the respondent is obliged to pursue his
action against the
applicant in the court of the applicant's jurisdiction then he will
be met by a defence of prescription based
upon a period of three
years. That would be a considerable advantage to the applicant in the
courts of his jurisdiction and a considerable
advantage to the
respondent if the action is allowed to proceed in this court.

In the
exercise of my discretion, I cannot ignore the grave prejudice that
would be suffered by the appli­cant if I were even
consider
allowing the action to continue and the attachment to stand. It is
the respon­dent who brought the situation upon
himself by making

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this
payment in this strange form to the Registrar and and he has only
himself to blame, therefore, if the attachment fails in its
purpose
as I find it does.

The
application to set aside the attachment is granted, that is, the
Order dated 23th June, 1984 in CIV/T/328/84 is set aside. There
was
no prayer for costs in the notice of motion before me but by consent
an amendment had been granted allowing such prayer and
I, therefore,
order that the respondent pay the applicant's costs of these
proceedings.

D.S. LEVY

ACTING
JUDGE

24th May,
1985.

For
Plaintiff : Mr. Robinheimer.

For
Defendant : Mr, Edeling.