CIV/APN/361/00

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

LESOTHO
BANK LIMITED PLAINTIFF

and

THE
DECEASED ESTATE MOHAMED JOOMA 1st RESPONDENT

MERIAM
MAGANY JOOMA 2nd RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr Justice T. Nomngcongo on the 16th February 2005

On the
26th September 2000, the Petitioner Lesotho Bank Limited approached
Court ex parte and urgently obtained a provisional order
of
sequestration against the first and second Respondents. The first
Respondent is cited as "The Deceased Estate Mohamed Jooma"

and the

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second
Respondent is according to the petition, the widow of the late
Mohamed Jooma. The order also directed the Master to appoint
"STEFAN
CARL BUYS as the provisional trustee with leave in terms of section
18 (3) of the Insolvency Proclamation No.51 of
1957 under the
direction of the Master to dispose of any movable or immovable
property forming part of the Estate of the Respondent."

This
appointment of Stefan Carl Buys was challenged by the 2nd Respondent
in a separate application on the ground that had the petition

disclosed the attorney and client relationship between the petitioner
and the said Stefan Carl Buys such an appointment would have
not been
ordered. It would appear that the application was not opposed and Mr.
Buys was accordingly removed as a provisional trustee.

This was
the position when the matter was finally argued before me on the 8th
December 2003. The petition had by then long been
overtaken

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by events
as the Petitioner Bank had gone into liquidation and was being wound
up. The petition however has to be disposed of. I
now proceed to deal
with the legal issues raised that in my view conclusively dispose of
the prayers sought by the petitioner.
I will conveniently dealt first
with the prayer for the appointment of Stefan Carl Buys as
provisional trustee.

This
prayer also seeks leave in terms of section 18 (3) of the Insolvency
Proclamation to dispose of property forming part of the
estate. The
section provides as follows:

" a provisional trustee shall have the powers and the duties of
a trustee, as provided in this proclamation, except that without
the
authority of the Court or for the purpose of obtaining such
authority, he shall not bring or defend any legal proceedings and

that without the authority of the Court or Master he shall not sell
any property belonging to the estate. "

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All that
this section does is to prohibit the provisional trustee from firstly
engaging in unauthorized litigation on behalf of
an insolvent estate,
except only for the purposes of obtaining such authority and secondly
selling the property of the estate without
the authority of the Court
as the Master. It has nothing to do with the appointment of the
provisional trustee. But the appointment
must have been properly made
in the first place. The appointment of a provisional trustee is
governed by section 18 (1) which reads:

"18 (1) as soon as an estate has been sequestrated (whether
provisionally or finally) or when a person appointed as trustee

ceases to be trustee or to function as such, the Master may appoint a
provisional trustee to the estate in question who shall give
security
to the satisfaction of the Master for the proper performance of his
duties as provisional trustee and shall hold office
until the
appointment of a trustee ".

5

In my
view this section vests the power to appointment a provisional
trustee in the Master and not the Court. I am fortified in
this view
by a South African decision of Potgieter J. in GOLDFIELDS TRADING CO.
(PTY) LTD V. SCHUTTE 1956 (3) SA 1 where faced
with an identical
provision he had this to say:-

"The appointment of a provisional trustee is purely statutory
and I cannot see how the court has any inherent power where
such
power is vested in the Master by statute............Should the Master
refuse on improper grounds to appoint a provisional
trustee, the
aggrieved party can take his decision in review........."

I
entirely and with respect agree. The first port of call in the
appointment of a provisional trustee after a provisional order
of
sequestration is the Master. The Court has no power, without further

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ado to
order the Master to appoint a provisional trustee.

In this
view that I take I do not find it necessary to consider the ethical
question whether it is proper for a petitioner to seek
to have its
own attorney appointed as a provisional trustee. This would be a
matter for the consideration of the Master in exercising
his
discretion conferred upon him by section 18(1) in a proper case.

The
petitioner as indicated has cited the first Respondent as "The
deceased Estate". An estate is "an aggregate of
assets and
liabilities". It is not a legal personality and therefore cannot
sue or be sued (Commissioner for Inland Revenue
v Emarcy N.O. 1961(2)
SA 621 (A).) (See also Standard Bank Financial Nominees V Livine and
Others 1978 (3) 338 at 346 A-B where
Nestadt J. had this to say:-

" Finally on behalf of the third defendant it was contended that

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there had been an un correct citation. It was conceded on behalf of
the plaintiff that this was so. This concession was obviously

correct. A deceased estate is not a persona............... The usual
way in which an estate sues or is sued is through the executors.
"

The
petitioner makes a point that the 2nd Respondent has ignored the
provisions of the Administration of Estate Proclamation by
failing to
report the estate as required by law and presumably therefore to
facilitate the appointment of an executor. That may
well be so but
that cannot confer legal personality on an entity that is not
regarded as such by law. In any case the petitioner
himself is not
entirely without a remedy where a person refuses to discharge his/her
duties imposed by law. It seems to me that
he could easily apply to
Court to have the Master appoint an executor dative which he is in
terms of section 37 of the Administration
of Estates Proclamation
No.19 of 1935 enjoined to do in the absence of an executor to
administer an estate.

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This
failure to cite the executor of the estate is fatal to whole petition
for sequestration. It is particularly so in respect of
the 2nd
Respondent because her alleged insolvency is based entirely on the
alleged insolvency of her late husband's estate. The
alleged
insolvencies are in any case vigorously denied and 2nd respondent has
annexed documents which she alleges prove that she
has credit
balances with the petitioner bank. I lay no claim to understanding
these annexures, but it was for the petitioner to
reply to them. He
chose not. The denials of insolvency therefore stand unchallenged.
See PLASCON-EVANS PAINTS VS VAN RIEBECK PAINTS
1984 (3) SA 623.

MOHAPI vs
MONNE & ORS 1995 - 96 LLR LB 105

Finally
the petitioner approached this court urgently. The certificate of
urgency does not disclose the reasons for urgency, contending
merely
that "for reasons set out herein there is a bona fide belief the
urgent relief is necessary". I have looked in
vain throughout
the petition for

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these
reasons. The nearest suggestions of urgency is an unmotivated
apprehension that "Respondent may at anytime dispose of
the
assets entirely and leave the jurisdiction of this Honourable Court
as she is not in contact with your petitioner at all".
This
speculative assertions cannot have any basis in fact as the 2nd
respondent had at all times maintained an account with the
bank and
in any case they had been engaged in on going litigation throughout
the relevant period spanning not less than seven years.
There was
never any urgency in this matter.

See. The
Commander LDF& ANO vs MATELA. 1999-2000LLR

- LBp. 13
at 16 Wing on Garments (pty) LTD V LNDC & ANO

1999 -
2000 LLR - LB p. 72 at 75 QHOBELA & ANO v BCP &

ANO 1999
- 2000 LLR - LB 243 AT 251.

In
conclusion, for the above reasons the provisional order of
sequestration ought not to have been granted and it is discharged

accordingly. The appointment of STEFAN CARL BUYS was not

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proper in
the first as not being in accordance with Sec. 18 (1) of the
Insolvency Proclamation No. 51 of 1957.

The 2nd
Respondent has asked for costs on the attorney and client scale. The
manner in which the matter was handled inclines me
to agree that such
is a proper cause. I accordingly award costs on the scale as prayed
for.

T.NOMNGCONGO

JUDGE

16th
FEBRUARY 2005

For
Petitioner : Mr Buys

For
Respondent : Mr Ntlhoki