CIVIL/APN/38/86

IN THE
HIGH COURT OF LESOTHO

In the
Application of

SOLOMON
PITSO MAKHETHA Applicant

JOHN
RETIEF BOTHMA Respondent

JUDGMENT

Delivered
by the Hon. Mr Justice J L. Kheola on the 25th day of March, 1985

The 14th
March, 1985 was the extended return day of a Rule Nisi granted on the
12th March, 1985 calling upon the Respondent to show
cause, if any,
why he should not be committed to prison for contempt of court

It is
common cause that on the 8th February, 1985 an ex-parte application
was moved in case No CIV/APN38/85 wherein the Applicant
prayed for a
Rule Nisi calling on the Respondent to show cause why, inter alia,
Respondent should not be ordered to release Isuzu
Truck with
Registration letter and No F1246 to Applicant It was also prayed that
prayer 1 (a) operates with immediate effect as
an interim interdict.

In his
supporting affidavit the deputy sheriff, Lucas Majoba Khumbane avers
that at about 6 00 p m on the 8th February, 1985 accompanied
by one
Shadrack Mokemane and at the offices of the Respondent he served the
Respondent with the processes of court in CIV/APN/38/85
and that
Respondent refused to accept service of the aforesaid processes after
he had perused them He then went to the charge office
and reported to
one Sgt Shalile that the Respondent had refused to accept service of
the process of this court Sgt, Shelile instructed
Trooper Matoetoe to

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accompany
him to the offices of the Respondent In the presence of Trooper
Matoetoe he once more served the Respondent and again
he refused to
accept the process In his opposing affidavit the Respondent denies
that he is in contempt of court on the ground
that the order that was
granted was that he should, inter alia, show cause why he should not
be ordered to return the vehicle F1246
to the Applicant He admits
that he refused to accept the documents because he was very
suspicious as Lucas did not satisfy him
that he was the Messenger of
the court or Deputy Sheriff of the High Court Lucas did not produce
any letter of his appointment
as deputy Sheriff or messenger of
court. He further avers that he did not obstruct or refuse to accept
service of court documents
but he only wanted to ensure that the
documents were legal papers.

I do not
propose to make any finding on a disputed fact whether the Deputy
Sheriff did show the Respondent his letter of appointment
The latter
is adamant that he was not shown any letter of appointment while the
former also avers that he showed him. It is always
very difficult to
make any adverse finding against one party in an appli­cation of
this nature because I have to rely on what
is in the affidavits. I
found it not necessary to hear viva voce evidence by the deponents in
order to resolve this point because
it does not appear to be of any
great importance The Respondent admits that the Deputy Sheriff gave
him the processes of this Court
and that he read them but refused to
accept them as Lucas did not satisfy him that he was the Deputy
Sheriff, this appears in paragraph
6 of his opposing affidavit But in
the last paragraph of the same paragraph the Respondent modifies his
earlier statement by saying
he did not obstruct or refuse to accept
service of court documents but he only wanted to ensure that they
were legal papers. There
is obvious contradiction in these two
statements The truth as I sec it is that the Respondent

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refused
to accept service of the process of this court. The papers that were
being served upon him bear the date stamp of this court
and were
properly signed and stamped with revenue stamps In other words , ex
facie the documents genuine papers of this Court.
In any case the
Respondent must have been expecting such process because he had
earlier been approached by the Applicant and his
attorney concerning
the release of this vehicle

The
crucial question is whether refusal to accept service is per se
contempt of court. In his submission Mr Gwentshe for the Applicant

referred me to the case of Colonial Government v Southern Lands,
Ltd., 12 C T R.3 in which it was hold that if the Respondent refuses

to take the summons, the Sheriff can serve it by touching him on the
arm with a copy of it and dropping it at his feet It seems
to me that
mere refusal to accept service of the order of this court is not per
se contempt of court, what is important is to show
that the court
order was brought to the notice of the Respondent and that he
wilfully refused to obey it In the present case it
has been argued on
behalf of the Applicant that as ho read the papers the Respondent
knew the order of this Court and that he wilfully
dis­obeyed it
and that till now he has not purged his contempt

In reply
to this argument Mr. Edeling for the Respondent has submitted that
the first thing to be determined is what is the meaning
of the court
order. Paragraph 1 (a) of the order does not make sense as it does
not order the Respondent to release the vehicle
to the Applicant
forthwith, there was no order that the Respondent should hand over
the vehicle to the Deputy Sheriff and there
was no allegation that
the Deputy Sheriff had been authorized to receive the vehicle on
behalf of the Applicant. He contended that
the order was not clear
and gave an example of a clear order which reads

1. A Rule Nisi is hereby granted calling upon Respondent to appear at
10 00 a in on 25 February, 1985 and to show cause (if any)
why an
order should not be

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granted in the following terms'

(a) Respondent is ordered to release Isuzu Truck with registration
F1246 to the Applicant

2. Paragraph 1 (d) above is an interim order with immediate effect.

In my
view the example given by Mr. Edeling does not differ materially from
the court order, but usually the order requiring immediate
compliance
ends with the word "forthwith". It will be realised that in
the founding affidavit in this application the
Applicant avers that
the Respondent was ordered to release the vehicle Registration No.
F1246 forthwith, but if one looks at the
court order, particularly
prayer 1 (a) the word"forthwith" does not appear anywhere
It may be argued that the last prayer
(2) that prayer 1 (a) operates
with immediate effect as an interim interdict means the same thing as
the word forthwith. I agree
with that argument but it must be borne
in mind that the Respondent is a layman and that he was given the
paper to read for himself.
I do not think that a layman would
understand the order to mean that he must release the vehicle
immediately The order seems to
mean that the Respondent should come
to court on a specified day and show cause why he should not be
ordered to release the truck
to Applicant To complicate matter
further the Deputy Sheriff was a man appointed on an ad hoc basis and
did not know the law This
was conceded to by Mr. Gwentshe because if
he knew the law he would not have taken back the papers when the
Respondent refused
to take them, he ought to have touched him with
the papers and dropped them at his feet I have come to the conclusion
that although
Respondent read the papers for himself he could not
have understood the order to be that he should release the vehicle
immediately.

The other
aspect of this matter is that the Deputy Sheriff never demanded that
the Respondent should release the vehicle to him.

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Nowhere
in his affidavits does he say he ordered the Respondent to give him
the vehicle, he merely says that when the Respondent
refused to
accept the process he had no choice but to leave Mohale's Hoek for
Maseru. The Applicant to whom the vehicle was to
be released was not
present when the Respondent refused to accept the papers, however,
the question still remains To whom was the
Respondent supposed to
release the vehicle? As Mr. Edeling argued the Respondent was not
expected to drive the truck and look for
the Applicant in order to
comply with the court order. It seems to me that the Deputy Sheriff
had not been instructed by the attorney
who gave him the papers that
he was expected to accept the vehicle on behalf of the Applicant In
any case there was no prayer in
the order that the vehicle should be
given to the Deputy Sheriff who would deliver it to the Applicant.

It may be
that when the Respondent refused to accept service of process the
Deputy Sheriff decided that there was no point to order
him to
release the vehicle to him. This brings me to the question whether
the Deputy Sheriff explained the nature and exigency
of the process
It is significant that in his supporting affidavit to the founding
affidavit the Deputy Sheriff does not say that
he explained the
nature and exigency of the process. He merely says that he gave the
papers to the Respondent and after he had
read them he refused to
accept them It is only in the second supporting affidavit where he
makes the averment that he explained
the nature and exigency of the
process. If he had in fact done so this would have appeared in his
first affidavit. The words "Nature
and exigency thereof was
explained to him/her/them at the same time as the service.
He/She/They signed, or did not sign in receipt
thereof," appear
in the roneoed form used by the Deputy Sheriff as return of service.
To show that the Deputy Sheriff did
not make any explanation about
the nature and exigency of the process he has not even cancelled
words that he had to cancel because
they were not

applicable.

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I am not
convinced that the Respondent has committed contempt of court. The
rule is discharged with costs.

J.L.
KHEOLA

JUDGE

25th
March, 1985.

For
Applicant Mr. Gwentshe

For
Respondent Mr. Edeling