CIV/APN/264/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

MAKHAOLA
LEROTHOLI Applicant

V

DEPUTY
SHERIFF 1st Respondent

HI-LAY
PRODUCTS

(LESOTHO)
PTY LTD. 2nd Respondent

EPOL
(PTY) LTD. 3rd Respondent

LESOTHO
ELECTRICITY

CORPORATION
4th Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 5th December. 1985.

In this
matter, an urgent application was brought ex parte on the 8th of
November, 1985, to secure an interdict against the continuance
of a
sale in execution of the Applicant's property advertised for the 9th
of November, that is the following day. Such a rule was
granted and
this effectively resulted in the sale being stopped and money thereby
wasted. In argument today, the Applicant relied
upon various points
which I shall deal with seriatim.

He first
of all contended that there was no record in the Registrar's office
of the attachment upon which the sale in execution
was to proceed and
that therefore there had been no compliance with rule 46(4) of the
Rules of Court. I am informed by the Registrar
that the normal
procedure is that the Sheriff renders his returns of service to the
Registrar's office and that the Registrar's

2

office
keeps a copy and sends on the original return to the attorney for the
party issuing the writ. In those circumstances, therefore,
since this
return of service is obviously in the hands of the attorney, in the
normal course it must have gone to the Registrar's
office and so
there had been compliance with rule 46(4). At any rate, there is no
evidence sufficient to off-set the probability
that the Sheriff had
in fact complied with normal practice.

The
second point taken by the Applicant is that the goods which were
attached were not movable property and, therefore, were not

attachable as such in accordance with the rules and without
compliance with the pre­requisites of the rules in regard to
attachment
of immovable property. The point made by the Applicant is
that the items referred to to "a complete chicken unit"
consist,
if not entirely then certainly substantially, of items fixed
to immovable property which were intended to become part of that
property
and thereby constitute immovable property. This allegation
has its support in the statement by Applicant in his founding
affidavit
that: "I have heard that the cages and trays which I

am having
in my poultry are fixtures and as such form part of the immovable
property." There is no evidence whatsoever of the
manner of
annexation of the items to the immovable property nor any allegation
in regard to the intention of the party so affixing.
I am completely
in the dark in that respect and I cannot accept for one moment that a
bald allegation of this nature can result
in items described as cages
and trays being regarded as immovable on the mere say so of the owner
of those items.

3

Moreover
there is the response by the Deputy Sheriff who affected the
attachment, that the attached assets are easily removed from
the
premises where they are at present, they did not constitute fixtures
and are therefore movable property. That denial and that
assertion
more than off-sets the allegation made by the Applicant and that
point also must fail.

There is
some claim made by the Applicant in regard to an item which has been
described and spelt as 'Braiders'. At first I thought
these were
broilers which might well indicate live stock, that is chickens for
eating and not for laying. But on reflection it
seems to me quite
clear that what was meant was the word 'brooders' which is an item of
equipment for the hatching of eggs into
chicks. Since it is coupled
with the other items, cages, feeders and trays, I have little doubt
that I am right in my assumption
that the items are brooders and not
broilers.

It has
been suggested by the Applicant, although the founding affidavit is
somewhat nebulous in this respect, that he was not served
with any
writ of attachment notwithstanding the return of the Sheriff and that
he was/not aware that there was any attachment presumably
until he
saw the advertisement of the sale in question. However, there has
been filed of record by the Deputy Sheriff on behalf
of the
Respondents, a letter written by the Applicant to the Registrar of
this Court dated 12th September, 1985, which, disregarding
its
scurrilous attack oh the itegrity of the attorneys of record for the
parties and which I ignore, makes it obvious that he-was
fully aware
of the judgment taken against him and that the Deputy Sheriff had
warrants in

4

his
possession for execution of those judgments. It is equally apparent
that the sheriff had made an attachment of his property
otherwise the
writing of that letter would have not made any sense at all. I am
satisfied therefore that the Sheriff's return of
service that he did
present the writ personally to the Respondent, and that he did attach
the assets contained in his inventory,
is an honest and proper return
or the events of the attachment and that the Applicant's denial is
therefore a false one.

The last
point made by the Applicant is that the items attached are described
as a complete chicken plant to cover the items which
have been
referred to as brooders, cages and trays. The Applicant's criticism
of this description is that the attachment should
show each
individual item attached and not describe them in this allegedly
loose fashion as a chicken plant. I am not at all convinced
that it
is an inadequate description of the items attached. A complete
chicken plant would include all items making up such a plant
and is
an adequate description of what was attached and Rule 46(3) does not
require that the inventory by the Sheriff should contain
a
description of each individual item making up such plant.

In any
event in the interests of justice in terms of Rule 59 1 readily
condone the omission to describe each component of the chicken
plant
on the grounds that there is no possible prejudice caused to the
Applicant nor indeed has he alleged such prejudice.

5

I am
satisfied that the Applicant's attack on the attachment and on the
Respondents' attorneys was unwarranted and unjustified and
merely
wasteful of costs and that it is deserving of a mark of my
disapproval. There has been a request by the Respondents made
in the
affidavit filed in reply that there should be an award of costs on
the attorney and client scale. I think that the securing
of an ex
parte order on information which is meagre and inadequate and which
does not stand up to investigation in the light of
the facts revealed
by the Respondents and which were certainly known to the Applicant at
the time was improper and should receive
the mark of this Court's
disapproval. I will dismiss the application and discharge the Rule
and order the Applicant to pay the
Respondent's costs on the attorney
and client scale.

D. S.
LEVY

ACTING
JUDGE.

5th
December, 1985.

For the
Applicant : Mr. Hlaoli

For the
Respondents : Mr. Koornhof