CIV/APN/368/86

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

TSEKO
MOHAI ' Applicant

V

NATIONAL
MOTORS (PTY) LTD 1st Respondent

W.J.
LEMENA 2nd Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M. Lehohla on the 25th day of August,
1987.

In this
application applicant seeks an order directing 1st respondent to
deliver forthwith to him a certain tractor attached by
second
respondent pursuant to a writ issued in CIV/T/446/86 sold to
applicant at a public ' auction. Applicant further seeks that
order
to embrace a direction enjoining 2nd respondent to pass ownership of
the said tractor to him and that 1st respondent be ordered
to pay
costs of this application on an attorney and client scale. In
argument by Mr. Pheko for applicant it was however not insisted
that
costs be on attorney and client scale.

It is
common cause that the tractor was sold for M2,350.00. This sum was
paid to 2nd respondent by applicant pursuant to a sale
in a public
auction purportedly held on 1st November 1986. See para. 5 of 2nd
respondent's replying affidavit. Applicant was the
highest bidder.

First
respondent contends that there was no advertisement as envisaged by
provisions of Rule 46(7) which lays down that :-

"Where any movable property is attached ....... the deputy
sheriff shall ............. sell it by auction to the highest bidder

after due advertisement by him in one or more newspapers and after
expiration of not less than fourteen days from the date of seizure

therefrom ........" (My underlining).

Applicant
relies on an advertisement for sale of the

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said
tractor appearing in an issue of Mochochonono setting

out that
the sale was to be held on the High Court premises on 9th November
1985.

To the
extent that 1st respondent contends there was no advertisement within
the meaning of Rule 46(7) above, applicant prays that
1st
respondent's contention be dismissed as invalid for there indeed was
an advertisement by 2nd respondent.

It would
appear though, that regrettably there is no specific provision in the
rules that should an advertised sale be postponed
there should be a
re-advertisement for a subsequent sale.

There is
foundation on common sense in Mr. Mphalane's submission that if the
tractor failed to be sold earlier it ought to have
been re-advertised
for any subsequent sale. I cherish this submission for what it is
worth because if the relevant rules on the
requirement for
advertising lays down, as it does, the procedure for achieving a
perceived end, namely a well advertised sale by
public auction, that
also seems to be commanded without which such end cannot be achieved.
Hence re-advertisement cannot seriously
be said to be excluded. What
is entailed in advertisements is attraction of the largest possible
number of prospective buyers to
ensure the highest and therefore
fairest price for the purchase of the article in question. This
cannot be achieved by what is
implied in the speculation that the
deputy sheriff informed participants of the date to which the sale
had been postponed by means
other than those set out in Rule 46(7).

Mr. Pheko
took issue with 1st respondent's deponent's averments in paragraphs 2
and with regard to the prefacing of his sentences
by the phrase "I
have been advised or informed and I verily believe the same to be
true" without disclosing the source
of his information there by
betraying a determination on his part not to take the court into his
confidence and yet expecting it
to rely on what amounts to hearsay.
That no attempt was made to challenge this submission is comment
enough on 1st respondent's
attitude and bona fides.

Mr.Pheko
submitted further that the rules do not require

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the
presence of 1st respondent or any of his representatives at an
auction sale. In other words a sale is not rendered invalid by
the
absence of any or either of them. This was in response to a query
raised in 1st respondent's averment

in
paragraph 5 where the deponent states

"I further wish to aver that neither my attorneys or myself
and/or any of my representative was present or the purported sale

which took place in the yard of the 1st respondent's premises which
were at the time locked."

Embodied
in the above averment seems to be a curious belif that no sale of an
object kept in respondent's yard which is locked can
take place
elsewhere; for instance in the High Court premises. This argument
cannot hold because if annexure "A" is anything
to go by
the sale was due to take place "on the grounds of the High Court
of Lesotho." it thus becomes patently wrong
to equate a sale
with the physical location of the object sold. It is however
difficult to comprehend the deponent's meaning in
this connection in
the light of the fact that there was no indication of any kind to
throw the light on what was entailed in the
phrase that "the
sale did not take place in the High Court premises."

The 2nd
respondent who is the deputy sheriff of this Court has undertaken to
abide by the Court's decision.

He has
deposed that the sale held on 1st November 1986 was held pursuant to
an advertisement in the Mochochonono new's paper - a
copy of which
marked "A" has been attached to the papers before court in
line with requirements of rule 46)(7). (See
para. 5). This Annexure
is a copy not bearing any date but can safely be presumed to be a
1985 issue in as much as other articles
contained in advertisement
columns on the same page reflect the dates November 1985.

The 2nd
respondent further avers in para. 4 that Annexure "NM1" to
the opposing affidavit was an advertisement relating
to the sale of
other items which were attached. He denies that the tractor was not
advertised before sale.

Significantly
"NM1" styled Notice of Sale in Execution bears an
uninitialled alteration of the purported data of sale
from 25th
October 1986 to "1st Nov." 1986. In it the

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tractor
in question does not appear nor do the names of creditor and debtor
relating to the same tractor.

It was
not explained how the alteration came to be made or where "NM1"
was obtained from save that it bears the Magistrate's
Court's date
stamp reflecting 17 October 1986 and is signed by the Auctioneer,
W.J. Lemena. It thus cannot be inconceivable that
there is an element
of truth in the assertion that the sale relating to items reflected
in "NM1" was of other items as
averred by the deponent i.e.
2nd respondent.

A matter
of crucial importance in this application centres on what appears to
be 1st respondent's self help. As properly submitted
by Mr. Pheko 1st
respondent does. not dispute, in fact on its behalf the deponent Mafa
Moletsane asserts under oath, that he refused
to release the tractor.
Deponent does not deny that 2nd respondent and applicant have been to
see him several times in pursuance
of the product of the purported
sale. It thus becomes obvious that he was aware of the sale even if
he did not acknowledge it because
of whatever irregularity he felt
surrounded it. If so then it is to be wondered why he did not
approach the court in order to receive
an appropriate remedy. Surely
it behoves anybody who has a genuine grievance about a matter
affecting his or his company's interests
adversely if at all, to seek
a remedy before the court so that, if need be, the sale could be set
aside.

Although
it was conceded on behalf of the applicant with reference to the
inadequacy of Rule 46(7) to the extent that it does not
appear to
have been designed to cover situations requiring re-advertisements of
sales in execution that no rules or laws can operate
in vacuo and
therefore that in such situations it is fitting that the spirit
should be breathed into the letter of the law in order
to avoid
absurdities, it was however submitted that in the instant application
it behoved the 1st respondent to demonstrate that
it suffered
prejudice. But no attempt was made to show this. It may well be that
some body of persons were prejudiced by the fact
that the tractor was
not well advertised but that does not warrant 1st respondent's

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intervention
on their behalf or attempt at championing their cause because the
actio popularis of the Common Law has never been
part of the Roman
Dutch Law. C/F Dalrymple vs Colonial Treasurer 1910 T.S. 372 at 390
saying "The person who sues must have
an interest in the subject
matter...." And also Wood & Others vs Ondangwa Tribal
Authority & Another 1975(2) SA. 294
(A.O.). Any personal interest
that 1st respondent had should have been shown along with whatever
prejudice thereto was suffered
or was likely to be occasioned by the
manner in which the sale was conducted from the title page to the
colophon. 1 have no doubt
that applicant has successfully spiked 1st
respondent's rifles in this regard.

Mr.
Mphalane expressed surprise at and dubbed as unique procedure adopted
by applicant in including a fresh deponent in support
of his case and
in relying for that matter on a new annexure even so at the replying
stage. He submitted that this tends to derogate
from the rule that an
applicant stands or fails by his founding affidavit. He accordingly
prayed that the matters he strongly referred
to as new in 2nd
respondent's affidavit be struck off. ^ reply Mr. Pheko submitted
that there is. nothing new in the applicant's
papers it is not
specifically stated that the applicant relied on any particular
advertisement it is clear in para. 5 of his founding
affidavit that
he maintained, as he states, that the sale was in pursuance of the
rules or Court. It required no strain on the
stretch of imagination
to appreciate that if the sale was in pursuance thereto, then a
presumption rests on a logical basis that
the rules were complied
with including those requiring (as a prerequisite) that there should
be an advertisement preceding a sale
by not less than 14 days after
seizure. It would however have been desirable if applicant was more
specific in his evidence than
be content to rely on a general
statement albeit based on one of the rules.

Mr.
Mphalane cited the rule that no further affidavit should be allowed
except with leave of court or under special circumstances.
Relying on
this rule he requested that 1st respondent's affidavit be struck out.
He further referred to Morris' Techniques in Litigation
at 260 where
it is said that an applicant should not seek to supplement his
founding affidavit or to remedy any omission or introduce
new matters
to support his case in the replying affidavit.

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Reacting
to this charge Mr. Pheko submitted that an applicant can call as many
deponents as he wishes to support his reply.

I cannot
readily subscribe to this submission. I have not found any authority
supporting the view that in on endeavour to support
his reply a party
is entitled to supplement his founding affidavit or to remedy any
omission by, as in the instant case, bringing
in a new material such
as annexure "A" which is undoubtedly crucial for the
determination of this case.

Moreover
this submission rests on the illusive igneratic elenchi basis which
ignores the fact that Mr. Mphalane's submission was
not that
applicant cannot at replying stags bring in fresh evidence but that
he cannot do so without (a) leave of court or (b)
having shown the
special circumstances warranting that procedure. Thus the submission
contains a fallecy to the extent that it
appears to refute the
opposing party's argument while in fact disproving something not
asserted by him.

It is
important to pay heed to the fact that a party bringing proceedings
by notice of motion as against action takes his life in
his hands
because what remedy can be provided by further and/or by further and
better particulars in the latter case, is not available
in the
former. So whatever mishap a party relying on notice of motion
suffers is an ever-present risk that he willingly takes.
My attitude
regarding my firm disagreement with the submission made on this point
in the applicant's case will be manifested in
the order for costs.

But lo!!
it is inevitable that 1st respondent should more than lose on the
swings what he made on the roundabouts because consideration
of Rule
30 makes it clear that with respect to irregular proceedings, it is
required that within 14 days an objection should be
raised by the
party affected on notice to the other party. It is also provided in
that rule that a party who takes any step in
the cause with knowledge
of the irregularity or impropriety shall not be entitled to make such
application.

Significantly
in these proceedings no notice has been given nor application made on
notice that there would be

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made an
application for striking out the alleged irregularity. See Elher
(Pty) Ltd vs Silver 1949(4) SA. 173.

"Applications to strike out are taken by way of motion upon
proper notice to the other party,wherein are indicated passages

objected to, together with a short statement of the grounds of the
objection."

Hebstein
& Van Winsen on the Civil Practice of The Superior Courts in
South Africa at 49. There can be no application to strike
off made
from the bar. Such application should be on notice. The operative
maxim here in - "nihil forum habet ex scena"
- the court
has nothing to do with what is not before it.

Care
should however be taken not to blur the distinction between bringing
an application on notice on the one hand and on notice
of motion on
the other in matters which are interlocutory as the point raised
herein clearly is. See CIV/APN/402/86 Khoboko vs
Khoboko & 2
Others (unreported) at page 5.

I can
hardly see the relevance of Rule 46(3) (c) in those proceedings and
would accordingly desist from speculating on its implications.

Significantly
in his opposing affidavit ad. 4 Mr. Mafa Moletsane says he believes
verily that the sale was held on 1st November
1986 but in argument it
was submitted on his behalf that there was no sale. This cannot be
allowed as it detracts from the general
principle that one should not
in litigation "blow hot and cold".

Furthermore
having taken the law into its or his own hands 1st respondent through
its deponent cannot be heard to seek the assistance
of the court
because he labours in vain who after offending the law looks up to it
to give him relief in the same cause.

It is no
matter for conjecture that 1st respondent knew of the sale long
before the application and that the 2nd respondent had
sold the
tractor to applicant but 1st respondent nevertheless refused to
release it while at the same time failing to come to court
to
challenge the propriety of the sale which adversely if at all,
affected its interests.

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In effect
the sale, bad as it may well have been, was held by 2nd respondent as
directed by 1st respondent and an instructions of
1st respondent. The
ownership in the tractor vested thereby on the 2nd respondent who
alone could pass it to applicant as he indeed
passed it. The
presumption here is that ail things are held to be properly done
until the contrary is proved. The opportunity existed
but was not
seized by 1st respondent to prove the contrary.. It instead defied
the way of propriety by refusing to release property
that did not
belong to it. It is wrong for anyone to come to court expecting it to
wish him joy of the ill-retained goods in his
custody. The deputy
sheriff has received proceeds of sale of that property.

There is
no merit in 1st respondent's opposition to this application save to
say that it is desirable that a specific rule should
be incorporated
in the rules of court to regulate proceedings where it becomes
necessary to have a sale re-advertised. Although
it is undesirable
and often cumbersome to initiate amendments of rules each time a new
situation arises demanding application of
such rules it is however
necessary that this particular rule be made and implemented because
it reduces one to unwholesome blushes
to find that a sale postponed
from November 1985 was without further advertisement held a year
later. No doubt the Chief Justice
will find it fitting to give
attention to this in terms of section 16 of 1978 High Court Act.

The 1st
respondent failed to show what prejudice if any he suffered because
of the sale that was held a year after being advertised.

Judgment
is entered for applicant with only 7/8 (seven eights) costs on party
and party scale.

ACTING
JUDGE.,

25th.
August, 1987.

For
Applicant : Mr. Pheko

For 1st
Respondent: Mr. Mphalane.