CIV/APN/224/87

IN THE HIGH COURT OF LESOTHO
In the
Application of:

PAULOSE MOTLATSI RAJELE ...... Applicant

and

BELINA 'MALERATO RAJELE 1st Respondent.

DEPUTY-SHERIFF (Mr. L. 'Nyane) 2nd Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
23rd day of February, 1990.

The applicant herein has moved the court for an order,
against the Respondents, framed in the following terms:

"(a) Staying the execution of judgment in

CIV/APN/224/87 pending the determination of the appeal
therein;

2. 
   Directing second Respondent to release
   forthwith tD
   Applicant the property
   attached and/or removed by him on
   8th
   January, 1990.

   
   

3. 
   Directing Respondents to pay the costs
   hereof only
   in the event of opposition;

   
   

4. 
   Granting Applicant such further and/or
   alternative
   relief."

   
   

The Respondents intimated their intention to oppose the
application. Affidavits were duly filed by the parties.

Very briefly, it is clear from the affidavits that the
gist of the relief sought by the applicant is the stay of
execution of maintenance order which the first defendant has
obtained,

2/ pendente

-2-

pendente lite, against the applicant. Assuming
the correctness that

the order was obtained pendente lite, it stands
to reason that the proceedings in which the order was granted were
interlocutory. It is trite law that no appeal lies
against the
decision given in interlocutory proceedings unless, of course, it is
by leave of the court of appeal.

It is common cause that although the appeal has been
lodged to the court of appeal against the decision of the High Court
granting
maintenance order, pendente lite, the former
court has not given a decision in the matter. That being so, the
decision of the High Court still stands good.

It was on the basis of a valid decision of the High
Court that a writ of execution had been issued and the Deputy Sheriff
carried
it out. The fact that an appeal has been lodged to the court
of appeal does not automatically render a judgment of the High Court
invalid. I am not convinced, therefore, that it would be proper for
this court to order stay of execution which is being carried
out on
the basis of a valid judgment of the High Court merely because an
appeal has been lodged for leave to appeal against an order
granted
in interlocutory proceedings.

It has, however, been pointed out that at the time he
attached and removed applicant's property in execution, the Deputy
Sheriff's
attention was drawn to the fact that some of the property,
thus attached and removed, belonged to certain people and not the
applicant.
That being so, it seems to me that before he could sell
the property by auction sale to satisfy the judgment for maintenance
order
agains the applicant, the second Respondent would first have to
comply with the provisions of Rule 51 of the High Court Rules 1980
i.e. institute

3/ inter-pleader ........

-3-

inter-pleader summons/proceedings against the claimants
of the attached property, otherwise this application is not granted
in terms
of prayers (a) and (b) of the notice of motion.

It is worth mentioning that yesterday when the judgment
was delivered in open court I mistakenly said the application was
granted
in terms of prayer (a) and (b) of the notice of motion. This
morning I told the Assistant Registrar (Miss Sello) to call the two
counsels before me in order to advise them of the correction I wished
to make in the judgment. Neither of them appeared before me
and I
proceeded to make the necessary correction so that the decision
reads: application is "not granted" instead of "granted"
in terms of prayers (a) and (b) of the notice of motion.

This being a family dispute I would not make an order as
to costs.

B.K. MOLAI

JUDGE
23rd February, 1990.

For Applicant : Mr. Pheko
For Respondent : Mr.
Maqutu.