1

CIV/APN/400/00

IN THE HIGH COURT OF LESOTHO

In the matter between:

MAIROON
ADAMS 1st APPLICANT

BUS
STOP HARDWARE 2nd APPLICANT

and

THE MESSENGER OF THE SUBORDINATE
COURT
MASERU RESPONDENT

RULING

Delivered by the Honourable Mr. Justice T. Monapathi on
the 25th day of October 2000

This was the anticipated return date.

The application had been moved ex parte on Sunday the
27th October, 2000 before Mofolo J. An interim Court Order was
granted on that
day to the effect that the Respondent herein be
interdicted from evicting and/or harassing the Applicants and all
persons responsible
to them from occupying premises situated at plot
36-37 (also known as plot no. 13283/232). And also that a warrant of
apprehension
against "a person or persons of particulars unknown
of Bus Stop Hardware and Furniture issued on 20th October 2000 by the
Subordinate
Court, Maseru" be set aside. The Respondent has been
the person ordered to execute the warrant for

2

MJM (PTY) LTD who had been Plaintiff and where First
Applicant had been Defendant.

It was said that the reasons for wanting to interdict
the Respondent who was a mere messenger of Court was that there had
previously
been a Court Order which was in the nature of an
interdict. The order thereto was attached to the proceedings as
annexure "D".

To enable it to understand the present proceedings this
Court was told of a long chain of events. I wished it was helpful.
There had
been a certain application which was launched by MJM (PTY)
Ltd against the Commissioner of Police and the Attorney General.
Orders
were granted to the effect of interdicting the members of
Lesotho Mounted Police from interfering in any manner whatsoever with
the
ejectment of respondents by the messengers of the Maseru
Magistrates' Court pursuant to the judgment in CC 402/97 in the
premises
in plot no. 13283-232 Cathedral Area in Maseru Urban Area.
The second paragraph said the Commissioner of Police was to ensure
that
Messenger of Court carried out the judicial execution of the
said Order. There was also an order for costs.

In response to the above application as Mr. Seamatha
contended the proceedings in annexure "D" were launched.
Application
CIV/APN/192/2000 had been launched despite the fact that
MJM (Pty) Ltd was well aware of the existence of an earlier
application.
It was aware of CIV/APN/327/1998 whose effect was that
MJM (Pty) Ltd was allowed occupation of the property.

Mr. Seamatha spoke of a Paragraph 5 of the Court Order
delivered on the 17th December 1998 and by the full bench. This was
conditional
upon the prosecution of an appeal by either the Applicant
or Bus Stop Hardware. The

3

appeal has never been prosecuted. Paragraph 5 thereof
says: Order of ejectment in which First Respondent (MJM Pty Ltd)
obtained judgment
against Mairoon Adams in the Magistrate's Court is
suspended with immediate effect. The rule nisi which Peete J issued
on the 7th
August 1998 in case number CIV/APN/327/98 was stayed
pending the outcome of the appeal against the discharge of the said
rule pronounced
by Peete J in the same matter.

It meant that at that time there was in the back round
of all things an

intended appeal against the order of Peete J. This
appeal was proved not to have

been filed at all. Instead then the other related
appeal matter: see also

RETSELISITSOE KHOMO MOKHUTLE NO v MJM (PTY) LTD,

MESSENGER OF MAGISTRATES COURT, REGISTRAR OF DEEDS,

ATTORNEY GENERAL AND MAMALIA TSEPE C of A (CIV) 30/98

Friedman J (13 October 2000) where at page 4 the learned
Judge of Appeal said:

"Applicant states that he entered into a lease of
property with Adams

which was renewed from time to time. When Bus Stop, of
which

Adams is a director, was incorporated appellant let a
portion of the

property to Bus Stop in terms of an oral agreement. Bus
Stop and

Adams both applied for orders interdicting First
Respondent from

ejecting them. Their applications were unsuccessful."

The learned Judge of Appeal goes further to say at page
5 of the said judgment about the Appellant.

"Until the estate is wound up after appointment of
an executor and until he receives dominium in the property, an heir
has no
control over it. Applicant accordingly had no interest in
protecting the alleged right of occupation of either Adams or Bus
Stop
which he had purported to grant to them prior to his appointment
as executor and at the time when, as heir, dominium in the property
had not yet passed

4

to him. It follows that the appeal must fail." (My
underlining) When the Respondents (including MJM (Pty) Ltd) won the
appeal
against the Appellant who purportedly granted the Applicant
rights of occupation Mr. Seamatha would have been wise to have
conceded
to say that the Applicant would for all intents and purposes
be without a judgment, strictly speaking. I say this most advisedly
knowing that the Court of Appeal in C of A (CIV) No 15/00
RETSELISITSOE KHOMO MOKHUTLE NO v MJM (PTY) LTD AND FOUR OTHERS by
Friedman
J on the 13th October 2000 held for the Appellant against a
judgment of the High Court which had upheld MJM (Pty) Ltd's
exception.
The Applicant's lessor (if not the estate) therefore
remained a substantial claim before the High Court presumably
intended, in effect,
to disturb MJM (Pty) Ltd's lessors' rights. Mr.
Seamatha went on however to stress that his client therefore had a
kind of judgment
in his favour that was annexure "D".

In the annexure "D" the orders were set out as
follows for clarity. It was that:

1. 
   "The Respondent is interdicted from ejecting the
   Applicant Bus Stop
   Hardware (Pty) Ltd and all persons through the
   aforementioned
   occupying the premises situated at plot 36-37
   (also known as plot
   number 13283-232) Cathedral, Pitso Ground
   Maseru by virtue of
   Warrant of Execution issued under case no. CC
   424/97.

   
   

2. 
   The warrant of apprehension against Farouk Farouk on
   30th May by the
   Subordinate Court, Maseru is set aside."

   
   

Clearly the sole Respondent was the Messenger of
Magistrate's Court of Maseru. I was not able to understand why Mr.
Seamatha replied
to say that the Messenger Respondent was a party
strictly speaking. And furthermore why said the messenger would be
said to be having
any interest at all except that of an agent of the
person who issues out a warrant, a writ or process of Court. Surely
he does not
dispute or

5

claim anything. He executes a warrant which in the
opinion of Davis Jin R v HUGHES 1940 CPD:

" the messenger had no option but to obey it, and
he was

consequendy in the execution of his duty when he was
doing so." His interest is his duty and nothing else. I did not
see why
there could be a relationship between the acts of the
Messenger who was now acting in order to execute, and the fact that
the full
bench decided in favour of the Applicant who has not
prosecuted his appeal for over two years. This was no good answer to
whether
correctly speaking a messenger such as the Respondent was a
party when he was not disputing a substantial right and in the
absence
of a true litigant or respondent. He was not a party in the
absence of a substantial respondent. In the event that he conducted
himself
irregularly, as Mr. Seamatha submitted, he ought to be cited
with the judgment creditor because correctly speaking a messenger of
Court is never a sole party to any proceedings. There was therefore
an obvious strangeness in annexure "D".

Mr. Seamatha emphasized that the additional reason for
Applicant to sue Messenger of Court was this existence of a prior
judgment
(rule nisi) attached as Annexure "C" in
CIV/APN/192/2000 granted by Mofolo J on the 5^th day of
June 2000. The Order was similar to that of Guni J (annexure "D")
of the 4^th July 2000 except that in the latter the setting
aside of warrant of apprehension against Farouk (see annexure "F")
was
sought "pending its review". That was said to be "the
judgment" the Applicant spoke about in annexure "D"
which confirmed annexure "C". It was against those orders
which Mr. Seamatha said there had been no appeal by the Respondent
herein nor that was there any reference about them in the Court of
Appeal when the two judgment referred to earlier were being
considered.
He submitted that the ruling therefore stood as precedent
in favour of the Applicant.

6

I did not see how these orders (in annexure "C"
and "D") which were strictly interlocutory could have been
treated
in anyway better than what they were. That they ought to be
entered as pending a substantial decision in the Court of Appeal or
elsewhere.
This was much more so even as they appear to be permanent
interdicts which they ought not to be. In any event this Court was
never
told of the end of the intended review nor appeals to which
they had relevance. If there was no such review one can easily speak
of chicanery, trickery or fraud on the part of the person who
procured the orders well knowing that they were intended to have the
effect they should not have in strict law.

I did not see why after the Court of Appeal decision any
of matters that were applications of an interlocutory nature could be
said
to have survived. If they had fallen off as they did it made
sense that MJM )Pty) Ltd would want to execute and issue a warrant as
it had done in terms of case number CC 424/97.

I waited to see if there were any substantial reasons
that pointed to anything that was wrong with the warrant of ejectment
(re-issue)
dated the 19th October 2000 - see annexure "B".
If what make the warrant of ejectment irregular is the fact that it:

" is abundantly clear from the aforesaid orders
issued under case

no. CIV/APN/192/2000 that the Respondent is prohibited
by the

Honourable Court to ejectment" then it cannot be so
with those writs which were issued after the date of the order.

There cannot be a permanent interdict against a
messenger when the judgment which is being executed is not under
scrutiny nor is being
questioned. Hence the question as to what was
fate of the review that annexure "C" speaks about as
pending review. It should
have resulted some comment in annexure "D"

7

which Mr. Seamatha spoke of wanting to re-enforce it by
means of the instant application. This submission by Applicant means
that
every other re-issue of the writ CC 424/97 could find itself
frustrated by annexure "D" or such like order if the
reasoning
is valid in law. But it is not.

I asked the Applicant to explain the anomaly that a
warrant of the Magistrate's Court was being challenged in what could
neither by
transfer, nor by appeal, nor by review nor by any kind of
an application for a declaration. Indeed that is the question (of
jurisdiction)
that should have been asked by the issuers of annexure
"C" and "D". Perhaps a charge can be made that
the effect
of a different opinion or reasoning by this Court would be
a review of some kind of the decisions of the Courts who made the
order
in annexure "C" or "D". Why does Counsel
expect that this Court should agree with the findings when wrong
parties
was cited and real parties not cited. The response by
Applicant's Counsel was that the warrant was null and void on the
face of it
hence the entitlement of the Applicant to have sought its
interdiction. I did not agree, with respect.

There never was a good answer to the question why the
warrant even if it was bad it could not be challenged before the
Magistrate's
Court where it emanated. I would repeat that I was not
shown the proceedings for review which were said to be the condition
for the
filing of the interdict in annexure "D". Nor were
the proceedings of the Magistrate's Court transferred to this Court.
This was the question that the Courts who issued annexure "C"
and annexure "D" should have asked.

I thought the Magistrate who issued the warrant at the
time, the Clerk of Court and not excluding the Respondent who had a
real interest
(MJM (Pty) Ltd) should have been cited in this
proceedings "to show cause" as it were. This was

8

even more so when these parties have several times in
the past been before the judges of the High Court. In particular
before the
application for orders in annexure "C" and "D".
On none of those occasions have there been this serious act of
non-joinder .

This goes together with the need to have stated the
substantial cause and reason for challenging the proceedings before
this Court
not before the Magistrates Court except if the proceedings
came by way of the permitted procedures. It was stated in reply that
the
warrant was vague and embarrassing and could not be enforced. I
did not find that this was the case nor the reason stated in any
of
the ten paragraphs of the Applicant's deponent's affidavit. It was
said the warrant was vague and embarrassing in that it had
not been
addressed to specific people. It was contended it was for that reason
null and void. If it is so why was it not challenged
before the
magistrate?

I brought Mr. Seamatha's attention to the fact that a
judgment that was still to be executed was a proceedings which were
pending
before that Court. This was by analogy similar to proceedings
that have not been withdrawn before a Court. That virtually meant
that
the case founding the disputed writ was still a matter before
the magistrate. This was because even if it had gone on appeal when
the appeal ultimately failed a return is made to the Court a quo to
execute the judgment. This appears to be even so in the instant
case
where no appeal was pending. So is the theoretical and even more so
the practical reality that the matter will still belong
to the Court
a quo before finalizing execution.

I impressed on the Applicant's attorney that it might
perhaps be that there were many faults with the writ, as issued, even
bordering
on irregularity but those matters would still have to be
entertained as prescribed in before the High Court

9

Act 1978 and the High Court Rules when brought before
the High Court. The stock reply was always that it was MJM (Pty) Ltd
which started
this process of forum shopping. I thought that even if
it was so it was a wrong practice that had to be curbed. So that it
was an
objection which should have been raised all along and a
question (of jurisdiction) which should have been asked all the time
even
with regard to the proceedings that brought about annexure "D".

It might perhaps be that the matter of appeal which Mr.
Seamatha spoke about as pending was something other than the two
Court of
Appeal decisions that I have just referred to earlier in my
judgment but there was no reference to such an appeal in the instant
application. It might perhaps be that the intention of the Applicant
was to seek to declare that the writ of execution was a bad
process,
again that was not clear in the papers. For all I am able to recall
at the time that the full bench is said to have sat
there was an
intended appeal by the Applicant whose fate no one speaks about now.
It concerned some issue of a right of occupation
by a lessee of the
property in dispute. If I am wrong it can only be that there was such
appeal after at all. But no one spoke about
it in these proceedings.

I agreed with Mr. Sello for the Respondent that the
relief sought by the Applicant appeared to be one of a permanent
interdict which
had virtually been previously sought in annexure "D"
which confirmed of annexure "C" I did not have to consider
the query that the matter had been wrongly moved ex parte without
notice. The prejudice in such procedure was almost guaranteed when
the party with real interest was not even cited who had had a
judgment in its favour for close to three years. Except to add that
if this application had been a normal well founded claim that it was
urgent would speak for itself. That is if it had to do with
a stay of
execution of a writ properly sought for example.

10

The judgment that was being executed by the magistrate
was a judgment over which there had been an appeal to the Court which
had gone
through several stages in different guises of applications
since about 1998. It was an old matter. My interest remained to be
about
the nature of the relief sought. Now is about a challenge to a
messenger of Court (Respondent) who seeks to execute an order of the
Magistrate Court. This is done when it appears that is at the end of
road. That is why Counsel for Respondent contended that the
present
strategy was to chase and intimidated Respondent with multitudinous
Court Orders.

The problem remained to be in my view not one of
non-joinder but a deliberate avoidance of citing the only party with
a real interest
that is MJM (Pty) Ltd. It cannot really be a good
case that MJM (Pty) Ltd should have applied to have itself joined. It
is a case
of MJM (Pty) Ltd who has a real interest in this case who
was being deliberately avoided so that when another turn comes it is
cited
so that the problem become protracted and protracted.

This is a situation where MJM (Pty) Ltd has a judgment
in its favour which has a minimum of two years. A real basis has to
be made
out how the execution of judgment can be stopped. That is why
Counsel for the Respondent kept on asking why the matter was even
being
brought ex parte. That is besides the question of the
application being brought in a wrong Court.

One perplexing aspect would really be why the Applicant
not relying on annexure "D" but rushed on again to this
Court to
sue for another order. He should have relied on annexure "D"
in refusing to be ejected or on refusing to be arrested. If
it has
any value then it would have been a good defence before the
magistrate or any arrester. Instead the Applicant came here before
the Court to get an identical order. This is wrong. There were also
other more fundamental

11 issues.

Applicant should have at all times, in asking for an
interdict, have to show a clear right, a wrong actual committal or
apprehended
which is basic. An Applicant came here before this Court
to say that the Courts must interdict for all times execution of a
judgment
of a court of competent jurisdiction. Why would a real
litigant (MJM (Pty) Ltd) be given a right, by means of judgment, and
thereafter
the same Court to have the fruits of the judgment denied
that litigant? This kind of relief novel as it appears should have a
justification
as to what it is based upon in law in seeking to stop a
judgment in being executed. Only an appeal or stay would stop a
judgment
from being executed by the magistrate or judge who granted
the judgment.

This Court knows of no other way of stopping a judgment
which is binding in law. That is why for example in a matter
involving Applicant
and MJM (Pty) Ltd there was stay of Chief
Magistrate's judgment (which had come by way of appeal here) when
appeal had been noted.
Then instead of following up on that appeal to
the Court of Appeal there is this multitudinous applications of
strange and peculiar
character unknown to our procedures which all
seek to interdict the execution of a judgment of a competent court.
There has to be
a basis for that. And similarly why would a warrant
of apprehension that is good on its face and content being sought to
be interdicted
on grounds that there has already been preceding
orders which are not too clear as to their basis.

I am satisfied that there had to be execution of the
judgment in CC 424/97. This was after appeal to the Court, stay and
decision
of this Court which decided against the Applicant. It did
not appear that after this the Applicant took any appeal. It was not
clear
how she could rely on the two judgments of the Court of

12 Appeal one of which succeeded.

The disputed writ was issued by the Magistrate and the
Clerk of Court who appointed this Respondent, who is a Messenger of
Court who
now as I found was a wrong respondent because he was not a
real party with a real interest. I did not find any good explanation
from
the Respondent's Counsel as to why the real party or litigant
(MJM) Pty Ltd was not cited. This company was the real party who
belonged
to the dispute.

I did not have any explanation furthermore, as to the
kind of interdict sought was being sought by the Applicant. I did not
find any
good explanation furthermore how this Applicant came to this
Court other than by stay of execution or appeal. Neither did the
Applicant
say that she came by way of review, transfer of proceedings
nor was a declaration being sought. Nor was there an explanation why
this matter would not be challenged at the Magistrates Court where it
still belonged. This seems to be a wrong Court. I was not persuaded
that because this High Court has already decided the matter as shown
in annexure "D" that I ought to be bound as if by
ratio
decidendi, stare decisis or res judicata or whatever while the real
party was not and had not been joined in the proceedings.
Even if it
has happened in the past it could only mean that it was irregular.

Finally I did not see that the Applicant had any right
nor that the Respondent had committed a wrong in the attempted
execution of
the judgment.

In addition I did not quite appreciate the kind of
relief sought in the circumstances where virtually the Respondent had
not done
any wrong.

My decision was that the application ought to fail with
costs. Perhaps there

13

could still be something good in she application if it
was brought before the magistrate. But at present and for above
reasons it
was misconceived.

T. MONAPATHI
JUDGE