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CIV/APN/51/2000

IN THE HIGH COURT OF LESOTHO

In
the matter between:

THE LIQUIDATOR (THEKO J. MORUTHANE) Applicant
and

PALESA 'MAMPHO KHOAPHA (bom Sebilo) 1st Respondent

LESENYEHO KHOAPHA 2nd Respondent

THE
DEPUTY SHERIFF 3rd Respondent

REGISTRAR OF THE HIGH COURT 4th Respondent

JUDGMENT

Delivered by the Honourable Mr. Justice T. Monapathi on
the 9th day of November 2000

It was common cause that on the 27th July 1999 a writ of
execution was

issued by the Applicant. He says this was in pursuance
of a ruling of this Court given on the 14th December 1998 and later
amplified
by judgment which was

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delivered on the 1st March 2000. It cannot be correct
that the ruling sanctioned [he issuing of a writ of execution. What
is correct
is that this Court made a ruling on the 14th December 1998
in which it was decided, that a certain site or plot No. 14303-669 Ha
Matala was part of the estate of the First Respondent and the Second
Respondent, in a declaration.

The said estate was being liquidated following a divorce
between the parties. As Liquidator was appointed the Liquidator made
a report
and a plan of distribution in which distribution the
disputed plot was deemed to be part of the estate. I later confirmed
that the
report did go further. It spelt that the distribution and
allocation of this site was in favour of First Respondent who was the
wife
of the Second Respondent.

What my ruling of the 14th December 1998 did was to
confirm that the disputed site was part the common estate. This was
against the
challenge which had been brought by the First Respondent
in an application in which she sought a declaration that the site
could
not have formed part of the estate. This ruling of the 14th
December 1998 was followed by my full reasons of the 1st March 2000.
It is correct that the ruling and the judgment confirmed the
liquidator's findings on the division of the joint estate of the
parties
and one could safely say to that extent the liquidator's
recommendations were made an order of Court.

As a sequel to that there followed the ruling that I
have spoken about. The First Respondent herein filed the notice of
appeal of
the 12th January 1999 and hastily followed it up with an
urgent application to stay execution which

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was
granted ex parte on the 11th February 2000 under CIV/APN/51/00.

The application for stay of execution was opposed. The
present controversy was precipitated by this circumstances
particularly in
that the First Respondent failed to prosecute her
appeal and did not prepare the appeal record in time. I did not hide
my feelings
on the first day that the parties appeared. It was that
in no way would the Appellant have been held to have been dilatory in
any
respect. What was important was that he was led to prepare the
record late by the fact that she was awaiting the full reasons of
the
Court. At the hearing Mr. Ntlhoki said he had already persuaded his
client not to pursue the appeal.

What quite precipitated the present aspect of the matter
and the argument of this matter was the situation that the rule to
stay execution
ultimately lapsed. And in the absence of an
application to revive the rule the Liquidator filed as he conceded
the somewhat unconventional
application. And as he said it was "in
the interest of professional courtesy." He moved this Court to
formerly discharge
the rule on an amended notice of motion which was
filed of record on the 17th August 2000.

In his attack against the motion to discharge the rule
Mr. Ntlhoki complained that the Liquidator had to use what he says
was an unconventional
way of seeking for discharge of the rule and he
says there was absolutely no need for the attempt to discharge the
rule. What the
Liquidator should have done was to seek to implement
the plan as he had finalised it inasmuch as he had not formally
sought to vary
it. I believed that made good sense.

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Mr. Moruthane conceded that there was no necessity to
issue the notice of motion (to discharge the rule) in terms of rules
of Court.
He submitted that any harm which may have been perceived in
that regard was minimal and could not alter the complexion of this
matter
from one of essentially seeking to re-emphasize the
liquidator's opposition to the application for stay of execution, by
the First
Respondent, on the ground that the application was
frivolous and unduly dilatory. I did not see any reason for this what
I perceived
to be an unnecessary complication that resulted in this
argument before me.

Mr. Moruthane appealed that any further delay in
prosecution of this matter would adversely and severely bring
unnecessary costs to
the beneficiaries of the joint division of the
joint estate. This Court was respectfully urged to finalize this
matter in the interest
of justice rather than be lured into an
argument on technicalities which First Respondent, as alleged, seemed
to be bent on. He further
said that it would be a sad day in the
administration of justice if adversaries in litigation were to be
allowed a carte blanche
to exercise their wits on protracted
technical arguments to no meaningful avail. This would constitute a
serious travesty of justice.
But my feeling and belief was simply
that the complication and the costliness of these proceedings was
caused by the Liquidator himself

The Liquidator had brought about the dragging out of the
proceedings in a simple way. It was that he now wanted to bring about
a sale
of that site which was allocated to the First Respondent in
the said Liquidator's plan and the inventory. It is that later
intention
now to sell the disputed site which

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brought about the stay of execution by Mr. Ntlhoki's
client. It was that stay of execution which resulted in that rule
which had lapsed.
I agreed that essentially, barring for the
intention to appeal, the First Respondent had not objected to the
liquidator's recommendations
which after all had been made an order
of Court. That was definitely so when one also noted that the
disputed site was allocated
to the First Respondent in terms of the
plan. She complained later when the attitude of the Liquidator was
changed to that of wanting
to sell the site.

The liquidator says it was only on the modalities of the
division that the First Respondent seem to take issue but that aspect
had
been disposed of by the judgment as aforesaid. I would note that
it could not have been simple in the context that the First
Respondent
had intended to challenge the finding of the Court that
the site formed part of the estate. The intention to sell the site
had not
yet arisen. In the circumstances that the attitude to proceed
with the appeal had been abandoned I would agree that the matter had
become simple and straightforward and it required that the liquidator
had to bring into fruition the plan that he had chiselled out
in his
report.

I came back to the matter of the application for the
discharge of the interim order granted on the 11th February 2000. The
application
was as aforesaid opposed. To the application the First
Respondent raised certain points-in-limine: Firstly, she said the
application
was an academic exercise which only served to increased
the costs in this matter. Once a rule had lapsed it was not necessary
to
launch an application to discharge it. She said effectively

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it was no longer in existence. In view of the fact that
as she contended the Court had meru motu revived and extended the
rule, the
Applicant could not persist in this averment that it has
lapsed. The correct procedure available for him was to resort to rule
39(2)
that is to obtain date of hearing of the application which gave
rise to the interim order and seek to have that application dismissed
if the Applicant therein was not pursuing the matter.

This allegation that the Court meru motu revived and
extended the rule was interesting but not too accurate. The correct
version could
perhaps be that the rule was revived and extended by
agreement between the parties. This is because when the issue was
raised none
of the parties rejected the suggestion by the Court that
to enable that there be argument and for the time being the rule be
regarded
as being in existence. This may have been technically
inelegant. It may be that there arose a perception that the Court
virtually
gave advantage to the party who wanted to get a declaration
that the rule did not have any life. That should not have been so..
Despite
that the rule was, conveniently as it were, revived I would
still make my declaration either way when the moment came. So do I.

The Liquidator's application to discharge the rule that
had lapsed had a second prayer. It was this second prayer which the
First
Respondent submitted was incapable of being granted. The Court
was virtually being asked to direct that a particular asset of the
joint estate be sold in execution allegedly "as contemplated in
the ruling of this Honourable Court issued on the 14th December
1998
and subsequent judgment entered on 11th March, 2000". This

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Mr. Ntlhoki contended was the duty of some other persons
namely: the Deputy Sheriff acting pursuant to a writ or, the
Liquidator in
the exercise of the powers vested in him. Such sale if
it was to be would not only depend on discharge of the interim order
which
stayed such sale in the first place or the lapse of that rule
if it had not been revived. I would also depend on whether it was the
original intention of the Liquidator in his plan of distribution. The
First Respondent also resisted the award of costs as prayed
or under
any scale.

To repeat it was submitted that the procedure adopted by
the Applicant was unwarranted. If Applicant felt that the issues
surrounding
the devolution of the joint estate between the First and
the Second Respondent ought to be pursued differently he ought to
have resorted
to procedural steps already available and at his
disposal as Liquidator instead of launching this application. He
should have applied
for variation of his plan because the original
plan did not encompass sale of the disputed plot. In the interest of
justice and in
following the judgment of the Court a sale could not
be countenanced . And that the application ought to be dismissed with
costs
because it would serve no purpose whether the rule therein
lapsed or was revived. I agreed.

Two questions remained to be answered. None being a
re-visit of the technical aspect of the application for discharge of
the rule.
The understanding being that discharge or confirmation of a
rule remains a discretionary remedy. The first question was this:
what
now happens to the plan of the liquidator now that the attitude
of the First Respondent was to abandon the appeal, her intention
being no longer to proceed with the appeal? That is the first
question.

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The second question was this: Was the liquidator
entitled for any reason to resolve that there be a writ of execution
seeking to place
the site that was allocated to the First Respondent
on auction? And was he not only entitled to proceed with the
allocation as contained
in the plan and the allocation on the basis
of which the Court in its ruling in December 1999 virtually confirmed
the plan and further
confirmed that the site was part of the estate
by declaration of that Court's Order?

Could the liquidator thereafter change his own plan that
is the plan to allocate the site to the First Respondent) If the
answer to
the last question was that he was incompetent to actually
vary his plan after the Court had confirmed the plan, it meant that
that
application for stay of execution was well founded. In the
circumstances the application to discharge the rule no longer
mattered,
it became nugatory indeed became academic as I concluded it
was.

It becomes academic because once the rule was discharged
if his application was granted still it was incompetent as I conclude
in
law for him (the Liquidator) to change the plan that was virtually
confirmed by the Court. Even if the rule ended being confirmed
it
could only be on the basis that there was no reason for the
Liquidator to change the plan that included the allocation of that
site to the First Respondent.

I have to say something by way of a background to the
reasons for the liquidator's decision to sell the site. It will be
apparent
that the reasons were not

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good reasons and the reasons were actually bad in that
they discriminated over the allocation that was made to the First
Respondent
and could not demonstrably lead to her advantage. This
discrimination consisted in that instead of taking up and bundling
all the
assets for sale the Liquidator picked out and singled out
this allocation made to the First Respondent 'thus separating it from
others
and committing it for sale. It will be apparent that the
reasons for this sale which was sought to be interdicted could not
have
been good reasons. If the reasons were bad it meant the
intention to discharge the rule could not have brought any justice
and the
attempt was (even if not impeached) futile in its effect. I
say even if the discharge was in fact brought about.

I will now look into the reasons. In looking into the
reasons I have to remark at the way in which the Liquidator went
about the ventilation
of his case in the replying affidavit. This he
did in an unusual way. Mr. Ntlhoki correctly complained that it
disclosed the privileged
communications between attorney and attorney
. It disclosed the correspondence between them. It was to speak about
what transpired
between the offices of the two Counsel and I believed
and agreed with Mr. Ntlhoki that that was not the proper way to go
about it
as such communications are privileged and their disclosure
in the manner that Mr. Moruthane went about was unethical conduct.
But
having said so I further noted that this in fact facilitated this
Court in knowing about what was in the mind of the Applicant.

The real reasons for bringing about the site on sale
became apparent.

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Incidentally Mr. Moruthane was put: in a cleft stick, so
to speak, and was unable to resist the conclusions as to what appears
to
have been his intention to bring the site for sale on auction. In
the letter dated 29th July 2000 Mr. Ntlhoki wrote to the Applicant
-
Liquidator, said he has perused the Liquidator's report he found that
he was unable to find the "driving reason" for
the
Liquidator's intention to put up for sale the single immovable
property that was awarded to his client by virtue of the same
plan of
the Liquidator.

Mr. Ntlhoki commented further that if the idea was to
strike some form of parity all the assets of the estate of the
parties would
have to be sold up and the proceeds would have to be
divided equally between them. This he said because he intended to
advise his
client to accept the Liquidator's award. But if the only
property that will be sold was the one awarded to the First
Respondent then
he foresaw problems. This meaning that he had advised
his client that the Order of Court confirming that the property
belonging to
the common estate was acceptable. And if the Liquidator
was intent on selling this site that was allocated to the First
Respondent
as the Counsel contended there would be problems.

The letter of the 15th August 2000 from the Liquidator
then followed. This letter was in three paragraphs. The first one was
rather
longish and the last two were a mere two lines. I intend to
quote letter in full because it really shows the reasons for the
Liquidator's
intention to put up the site for sale. The second
paragraph seems to say so much about the real reason. There was
another reason
to be found in the first paragraph:

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" With to your letter of 29th July 2000 on the
above matter, as well as related discussions (previous and
subsequent) with Mr
Ntlhoki I wish to invite your kind attention to
paragraph 3.1.4 of the first Liquidators Report (styled Liquidator's
award Recommendations
-Report). This is the driving reason for the
solution - rather than intention - to put up for sale the immovable
property at Ha Matala,
in an attempt to strike an equitable balance
in the distribution between the parties. However, although the
Liquidator's recommendations
have now become an Court Order there is
still some room, hopefully, for the parties to arrive at a negotiated
settlement so long
as the stark imbalance which it is attempted to
remove is indeed effectually removed. Nothing is case in stone and no
vindictive
intentions should be allowed to prevail on either side.

If your client is willing and able to pay [he costs, so
let it be, and she can keep the contentious property to herself
without any
acrimony howsoever.

Finally, please allow me to congratulate your
enlightened and magnanimous approach in advising your client to
accept the Liquidator's
award." (My underlining) The reasons now
became clear and obvious.

Together with contents of the letter I needed to note a
very significant statement that was made by Mr. Moruthane. It was
that the
feeling of the

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Liquidator and indeed she feeling of the Second
Respondent had been that in terms of the plan she First Respondent
seemed to have
benefited more. That was why there was that reference
to "equitable balance." Related to this was that reference
to the
payment of costs that we find in the second paragraph of this
letter. It was further because in the mind of the Liquidator and
indeed
he expresses this to say that if his costs are paid the matter
of the property can be left as directed in the plan. This matter of
the costs of the Liquidator is even borne by the attitude of the
First Respondent's Counsel as contained in the letter of the 26th
August 200. I quote from the letter:

"The net effect of the solution is to leave our
client without any immovable property - a house to live in. At the
same time
the prize for retaining that house is for her to shoulder
the entire costs of the liquidator. All these issues are difficult to
live
with.

Perhaps you might consider selling all the assets
belonging to the

parties and divide the proceeds equally between them.
They should then bear the liquidator's costs in equal proportions. We
are merely
thinking loud and are yet to take up this matter with
client." (My underlining)

The statement is loud and clear that the changing of the
attitude of the Liquidator, that is his intention lately to have the
site
sold, was based on the reasons of his own costs Furthermore
about an attempt which he said he was making, to even out things.

It should be clear that the application for discharge of
the rule was not

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proper in the circumstances. Even if one were to rule
that technically on application for discharge of a lapsed rule could
be done
on a notice of motion and therefore not unconventional there
were still serious hurdles. The first hurdle was that the application
for stay of execution was based on an eminently good ground that the
appeal had been pending. Secondly the additional ground was
that it
was incompetent for the Liquidator to want to place the disputed site
on sale by auction when his plan has not been varied.
It was
incorrect to say that the sale was contemplated in any judgment of
the 1st March 2000. Once the First Respondent elected to
accept the
allocation as proposed in the plan of distribution that became the
end of the matter because it bound the Liquidator.
The application
ought to fail with costs against the estate.

The Liquidator's costs still have to be borne by the
estate failing which by the First Respondent and the Second
Respondent. I do
not see how the Liquidator should be driven to
desperation namely because the issue of his costs remained unsettled.
If a bill of
costs had been prepared he stood a good chance of
confronting the parties and asking for endorsement of the Court. The
bill would
become a claim in his favour. Why should the Liquidator
confuse his good work with his claim for costs? He deserved the
costs.

The application fails with costs.

T. MONAPATHI
JUDGE