Lesotho Brake & Clutch v Sachs SA (Pty) Lesotho (CIV/APN/228/00)

Case No: 
CIV/APN/228/00
Media Neutral Citation: 
[2003] LSHC 134
Judgment Date: 
4 November, 2003

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CIV/APN/228/00

IN THE HIGH COURT OF LESOTHO

In the matter between:


LESOTHO BRAKE & CLUTCH PLAINTIFF

And SACHS SA (PTY) LESOTHO DEFENDANT


JUDGEMENT


Delivered by the Honourable Justice Mrs. K.J. Guni on the 4th November 2003


[1] This is one of those matters where a party who lost initial action tries every avenue to resist the bringing of the matter to a finality. The applicant herein - LESOTHO BRAKE and CLUCTH was successfully sued BY SACHS SA (PTY) LTD in Civ/T/211/98 for payment of M54 824.39 plus interest at the rate of 18% a tempore morae. The appeal was noted and prosecuted unsuccessfully before the Court of Appeal (See C of A (Civ) NO 15/99).


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[2] The writ of execution for the enforcement of the said judgement was re-issued on 10th October 2000. The service of the said re-issued writ of execution was effected upon the applicant by the Deputy-Sheriff-named MATETE at the applicant's place of business at BEDCO SEBABOLENG MASERU on the 13th May 2002. On the authority of that writ, the deputy sheriff attached some property of this applicant. On the 16th May 2002, the deputy sheriff came back to the applicant's business premises to remove the attached property.


[3] The applicant resisted the taking and removal of the attached property on the grounds that the writ of execution is irregular and that the Court of Appeal judgement C of A (Civ) NO 15/99 is not helpful. The argument made by the applicant's counsel is that the writ of execution is irregular because it was served four years after the judgement which it purports to enforce, was delivered. The Court of Appeal judgement is, according to the applicant (paragraph 6 Founding Affidavit) not helpful to the writ of execution seeking to enforce the judgement in favour of the respondent because that judgement in the applicant's opinion did not traverse the merits of the case. This applicant's appeal against The High Court judgement was dismissed on the ground that it had no merit. (My underlining). The appeal was dismissed in this judgement - C of A (Civ) NO. 15/99 on the 13th April 2000.


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On the 20th May 2002, the applicant's lawyer -Advocate MOLETE MOSAE filed on behalf of the applicant the certificate of urgency accompanying a NOTICE of MOTION seeking an order of this court in the following terms:-


[1] that a Rule Nisi be issued returnable on a date and time to be determined by this Honourable Court calling upon Respondent to show cause, if any, why the following order shall not be made find and absolute

  1. Dispensing with the normal modes and periods of service of this Honourable Court due to the urgency hereof;

  2. Staying the execution of Respondent's Writ of Execution dated 25th April 2002 based on the judgement of this Court in CIV/T/211/98 dated 4th August 1998 pending finalisation of this application;

  3. Declaring Respondent's Writ of Execution dated 25th April based on the said judgment of this Court in CIV/T/211/98 to be null and void and of no legal force and effect;

  4. Setting aside Respondent's said Writ of Execution dated 25th April 2002 based on the judgement of this Court in C1V/T/211/98;


  1. Directing Respondent to pay costs hereof;

  2. Granting Applicant any further and/or alternative relief


(2) That Prayers 1 (a) and (b) operate with immediate effect as an Interim Order of this Court.


(5) Having obtained the rule Nisi in those terms the applicant. caused the service of the rule Nisi and the relevant papers upon the respondent's attorneys. Notice of INTENTION to oppose that application was filed on behalf of


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the respondent on 30/05/2002. An ANSWERING Affidavit by one DESMOND GARY WILLIAMS was filed on the 4th July 2002. By the 7th August 2002, the Replying affidavit was filed. The argument on behalf of both parties by their counsel was heard on 30th September 2003 when the matter was postponed for the delivery of this judgement.


[6] APPLICANT'S CASE


In terms of Rule 57 HIGH COURT Rules, Legal Notice NO.9 of 1980, the writ of execution served three years after the judgement, it seeks to enforce was delivered, is irregular. In simple terms this seems to mean that the judgement expires three years after its delivery and therefore thereafter it becomes invalid and unenforceable.


[7] The precise terms used in this rule which are relevant for the determination of this matter are:-


"57 (1) After the expiration of three years from the day on which judgement or order has been pronounced, no writ of execution may be issued pursuant to such judgement or order unless the debtor consents to the execution of the writ or unless the judgement has been revised by court...............................


(5) Writs of execution of judgement once issued remain in force and may be executed at any time without being renewed until the judgement has been satisfied in full (My underlining).


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(6) RESPONDENT'S CASE


It is the respondent's case that the writ of execution in question was issued within the period authoritatively stipulated by the rules. The High Court judgement was entered against this applicant on the 4th August 1998. This is in the common cause. The applicant appealed against that judgement. The appeal was dismissed on the grounds that it has no merit on the 13th April 2000. The writ of execution subject matter of this dispute was issued on the 10th October 2000. The issuance of this writ of execution on the said date was well within the period stipulated by rule 57 (1) High Court Rules, (supra) and therefore proper and ragular and not irregular as alleged by this applicant. The service upon this applicant of the said writ of execution by the deputy sheriff on the 13th May 2002, was proper, not irregular.


(9) Once the said writ of execution has been issued, it remains in force and may be executed at any time without being renewed until the judgement has been satisfied in full. (Refer to rule 57 (5) HIGH COURT RULES (Supra).


The writ of execution in question was issued before the expiration of three years since the judgement was delivered. On the 13lh April 2000, the Court of Appeal dismissed the appeal by this applicant on the ground that such appeal has no merit. There is no doubt therefore that the said writ of


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execution is valid and enforceable. In the circumstances the rule Nisi must be discharged with costs. It is so discharged with costs.


K. J. GUNI

JUDGE


For applicant - Mr. Mosae

For respondent - Mr. J J. Grundlingh


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