IN THE HIGH COURT OF LESOTHO
In the matter between:
ALICE NTSANE 1st Applicant
TAU NTSANE 2nd Applicant
THE COURT MESSENGER (TY-TUMO RAJAKE 1st Respondent
(TY-HIS LORDSHIP MR LP NTHABI) 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
KARABO MOHAU 4th Respondent
For the Applicants : Mr. Mabulu
For the Respondents : Mr. Molapo
Delivered by the Honourable Mr. Justice T. Monapathi on the 26th day of March 2003
This is an application for prayers as shown in pages 2 and 3 of notice of motion, in these proceedings, which are as follows:
1. The normal periods of modes of service shall not be dispensed with due to the urgency of this matter.
2. RULE NISI be issued and returnable on the date and time to be determined by this above Honourable court calling upon the respondents to show cause (if any) why the following orders shall not be made final and absolute.
Ordering the messenger of court to release to the applicant
forthwith the vehicle bearing registration No. D1166, with Engine No. 2Y9017996 and Chasis No YN 510011185 which was attached by the messenger of court while the vehicle is the lawful property of first applicant attached, pursuant to the writ of execution in CIV/T/161A/2001, pending the final determination and adjudication of this matter.
Declaring the execution wrongfully executed against the property of the first applicant which does not belong to defendant in CIV/T/161A/2002.
Stay of execution against second applicant pending final adjudication and determination of pleadings in CIV/T/161A/2001 for rescission application.
Costs of suit.
Such further and/or alternative relief.
3. That prayer 1 and 2(a) (c) should operate with immediate effect as an interim order.
This Court was addressed on points-in-limine and merits most of which I did not find it necessary to canvass for my final decision. The points were listed as lack of urgency, non-disclosure of material facts, misjoinder and other points of law.
I must first make these remarks which I think are important.
Firstly, I have had to undertake seeing that Counsel prepare a record of this proceedings. That not only is the record paginated and indexed but that it also had to be securely bound. Despite that our rules require these things to be done, to our practitioners this remains a joke. We do not know, as a Court, how much we must impress on the practitioners that they must abide by this requirement of these rules and several others. The failure to obey rules of Court
impacts negatively on the standards of the proceedings in this High Court. All sincerity and persuasion seems to be required to impress on practitioners that something is regrettably wrong.
Secondly, this is an unusual case where the Respondents actually undertook to and did prepare a record of proceedings. By Respondent I mean the Fourth Respondent, Mr. Mohau who was joined later in this proceedings and who was Plaintiff in CIV/T/161/2001. I say it is unusual because the duty is upon an applicant and a plaintiff to prepare such a record. Where, in the circumstances of this case, the Second Applicant and the First Applicant failed to prepare the record it confirms neglect upon neglect upon neglect by this Applicants that is shown in these proceedings. There is a lot of neglect shown throughout these proceedings. At some instances it becomes tragic.
Thirdly, Counsel for the First Applicant and the Second Applicant has again failed to file heads of argument. Having failed two days ago I urged him to even file handwritten heads. He has even failed to do that by today. Filing of heads of argument is one of the requirements which this Court has directed consistently and which unfortunately some practitioners consistently ignore. See remarks of Ramodibedi J in Mabataung Moletsane v David Mohapi Moletsane 1997-1998 LLR147 at 153.
Having said that I now get to the application itself. This application bears a year 2003 number while it is directly related to the application that was filed two years ago relating to CIV/T/161/2001. In that application a rule nisi was issued on the 7th January 2002 by Guni J which was returnable on the 14th January 2002. That rule is contained in the Court Order called "TN 1" in the present record of proceedings at page 12. In the order the execution of a
judgment granted is being stayed pending filing of an application for rescission. Consistent with that order an application for rescission was filed on the 14th January 2002 and the record reveals that there was even an answering affidavit by Mr. Mohau who is now the Fourth Respondent.
The said rule nisi has since lapsed. It is not known what happened after the 5th February 2001 when the answering affidavit was filed by Mr. Mohau. What is important to me is that about eighteen (18) months after that date, namely on the 9th October 2002, a writ of execution was filed. Indeed it must be a second such writ because the said application for rescission must be speaking about a writ of execution that was already filed before on the 7th January when the rule nisi was granted. There must have been a writ filed which the Applicant then sought to stay.
The present application and that application for rescission which I have spoken about is related to a civil summons filed on the 7th May 2001 in which Mr. Karabo Mohau, the Fourth Respondent herein was the Plaintiff, in which the Second Applicant herein was Defendant , wherein a claim for payment of M50,000 for defamation of character and other relief was filed. These proceedings in the action reveal that there was due service of process on the Defendants. There must have been a notice of appearance to defend. And then there was a notice to file plea which appears to have been ignored by the Defendant. It resulted in the Plaintiff having applied for a default judgment. This seems to be common cause.
That default judgment was followed by a writ of execution dated 29th November 2001 and then was followed by that application for stay and rescission which I have already spoken about. Suffice it to note that in that
application the Respondents were Karabo Mohau and two Deputy Sheriffs, one Lipholo and one Masenyetse. This picture has become complicated enough. What makes it easy for my decision is that that application for rescission is not pending. It is because it has lapsed. If the Second Applicant had demonstrated a keenness to pursue the application for rescission one would perhaps argue that, in the interest of justice, the Applicant should retain the opportunity to show that the judgment fought against is irregular. This is the principle adopted in applications for stay of execution pending appeals. See Soja (Pty) Ltd vs Tucker and Land Development Committee (Pty) Ltd and Another 1981(2) SA 407(W) at 411 E-F. In the instant case it becomes difficult for the Court to be persuaded to grant stay, in the interest of justice, where a perception is crystal clear that the Applicants intended to sabotage execution and not to pursue their legitimate remedies.
We have the present application in which in prayer 2(c) speaks about that application for rescission and that on its basis there must be stay of execution pending the adjudication and decision of that application for rescission which in this application the Applicants say nothing about. I observe that the Applicants say nothing about the rescission of that application because they do not tell the Court why the application is not proceeded with. And furthermore why this Court should grant an indulgence on the basis of what they neglected to do, that is setting the application for hearing. So the sentiment and spirit behind this prayer is practically that: "Let execution be stayed for ever and ever." When the Applicant do not even tell this Court what they intend to do about this application this perception becomes unmistakable. It is because it could have been enough if they spoke of even the application being or having been given a date of hearing. Not only that.
In the present application itself the Applicant do not tell the Court what is good in the said application for rescission. It is because the Court must learn and must be informed of the prospects of success in the application. The Applicant has to show that he has a reasonable explanation for his failure to have defended. Secondly that he has a bona fide defence in the substantive claim for rescission. See Loti Brick (Pty) Ltd v Mpofu and Ors 1995-1996 LLR 446. Or else I cannot stay the execution. I must first be persuaded that it is a good application in the sense of being arguable for the purpose of granting stay of execution. It has to be borne in mind that stay of execution is granted in the Court's discretion. See Le Roux v Yskor Landgoed (Edms) BPK 1984 SA 252(T). As Negpan J states in Whitfield v Van Aarde 1993(1) SA 332 (ECD) at 337 F-G that:
"........ the discretion which the Court has must be exercised in favour of a judgment debtor in certain circumscribed circumstances."
This case is also authority for holding that the Court has inherent authority to grant stay of execution. The present application is complicated by yet another aspect.
It is this aspect that not only do we have that Second Applicant who was the Respondent. Now we have the First Applicant who appears on account of prayer 2(a). She says this vehicle D1166 is now her vehicle. It is now registered in her name in terms of annexure AN "V. And significantly, and it is common cause, this registration for transfer to the First Applicant's name was done on the 31st October 2002. There is no doubt that the First and the Second Applicant are related as these papers disclose. Therein lies the first significant and important aspect which one cannot ignore even by mere common sense.
The second significance is that here is this Second Applicant who had a judgment and a writ of execution against him. He was owner of this vehicle (D1166) and he caused transfer only after the issue of the writ, as I concluded,. And he says he was not aware that there was an attachment. He says he could not disclose this aspect because he was not aware that there was an attachment. Furthermore he says he did not investigate the date of attachment nor did he investigate the date of return of service (KK"1"). I thought it was unbelievable that Applicant's Counsel could not have investigated those two things. I say so because both Applicants were assisted by an experienced legal practitioner.
In paragraph 5.1 the First Applicant says she is aware that the vehicle is presently in custody of the Third Respondent:
"....who has attached and removed the same in execution of warrant of execution issued out of this Honourable Court against the Second Applicant under CIV/T/161/2001."
I do not believe that the Applicant's Counsel would do everything short of acquainting himself with the date when the attachment was done. So that on that basis I do not find that there is any basis for investigating this aspect of the service by calling viva voce evidence. I am forced to believe what is contained in the return of service. I refuse (against Applicant's request) that I should go further to investigate whether the deputy-sheriff was rightly empowered to serve the writ as this was disputed only in the Applicant's replying affidavit. I am satisfied that the Deputy Sheriff executed on the strength of the writ which was issued on the 9th October 2002 There are cases and authorities of this Court and other jurisdictions that discourage that a litigant can build his case in reply, the trite principle being that in applications an applicant stands and falls by his founding papers. Therefore one cannot make out a fresh case in his replying
stage. See Lesotho National Olympic Committee and Others v Morolong C of
A (CIV) No 26 of 2001.
Furthermore I would have agreed that where First Applicant failed to make any case which is inherently persuasive and credible I would assume the correctness of the Respondent's case. I was referred in that regard to Supreme Furnitures v Molapo 1995 LLR LB 377, Roma Boys FC v L.E.F.A. 1995-96 LLR LB 456, NUL Students Union v NUL and Others 1994-1995 LLR-LR 879 and Plascon Evans Paints v Van Riebeeck Paints 1984(3) SA 623.
Mr. Molapo correctly submitted that the assumption of the correctness of Respondent's version is made if a respondent has challenged material averments of an applicant's affidavit as in the instant case.
I considered the above issues together with others that are shown in Mr. Molapo's heads of argument on which I conclude as follows: First, as I agreed urgency is inextricably a question of fact and law. Specific averments must be set out in the affidavit when it is not otherwise apparent that the matter is urgent." See Sikwe v Mutual Fire and General Insurance 1977(3) SA 438. The reasoning is not hard to find.
When claiming, as I agreed, that one cannot be afforded substantial remedy at a beginning in due course, one seeks to jump the cue and in effect to adopt procedures that are drastic and extraordinary. So there should be sufficient justification for such step. I was also referred to cases: Commander LDF and Another v Matela C of A (CIV) No. 6 of 1997 and Qhobela and Another v BCP and Others C of A No.8 of 2000. While I did not agree with the reason in the context of the lawfulness of having attached the vehicle I agree that
a good attempt was made to comply with the requirement.
This aspect of urgency goes together with the fact that no proper disclosure had been made that attachment had been made as soon as the writ of execution issued but the vehicle was removed four months later when then the Applicant filed the application.
There could not therefore had been any urgency founding the application. I further agreed with Mr. Molapo that this Court would have inherent authority and jurisdiction to revisit any of its orders that are made and may meru motu rescined them. One of the main reason could be that once a matter has been opposed further and more facts are revealed as to the nature of the matter on the question of urgency to that extent that the original order stands impeachable. I was in that regard to Rule 45 High Court Rules 1980 and Easterbrook Transport (Pty) Ltd v Compol and Others LLR LLB1995 page 141.
Second, to consider, was this question of non-disclosure of material facts. As Mr. Molapo submitted there has been failure on the part of the Applicants that the vehicle had already been attached on the 9th October 2002. In addition was the fact that remarkably on the 3rd October was the change of ownership of the vehicle made from Second Applicant to First Applicant. The inference would easily, in my view, have been that this was intended to defeat the attachment of the vehicle. Had this been disclosed the Court would most likely have not granted the order or could have granted the order having been well informed. To that extent the non-disclosure was delinquent. See Lieta v Lieta C of A (CIV) No.5 of 1997 and Mabataung Moletsane's case (supra).
I found no need to canvass the issue of misjoinder and submissions made under that head of argument, having already made my definitive decision on other issues. These issues have persuaded me that the application ought to be
dismissed with costs.
What remains to me as matter of concern is the question of the costs that I must impose in this application. Contributing to the difficulties of these Applicants is the negligence of their Counsel. As I said it was neglect upon neglect upon neglect. On that account I hesitate to punish these Applicants with costs.
On the other hand and in addition I have given warning to these practitioners who are before me that they must comply with the rules. They must comply with the rules all the time. See the case of Strong Thabo Makenete v Major-General Lekhanya and Ors 1991-92 LLR/126 at 127-128. Accordingly there is no longer any room for overlooking and condoning this non-compliance by legal practitioners. Not only that. Counsel must work hard because it is part of the profession to work hard. And if one is not equipped to work hard to protect their profession they must quit. This is a profession in which people hold valuable rights of others in their hands. Neglect and sloth by Counsel causes people to lose their rights. People neglect their obligations if they are not given correct advise by practitioners. I however find that there is no need to punish any of the practitioners with costs.
Behind all I have said is that there must be finality in litigation. That is why: "Interest republica litis finis" or something like that. This is a matter that must get to finality.
This is the approach that will make this matter get to an end. Otherwise these kind of applications will collect and then cripple an already completed action itself unnecessarily, inasmuch as these Applicants are seemingly prepared to file numerous applications and neglect them. The trenchant example and indication is that if it was not for the Respondents this
application would not have been heard because the Applicants were likely to have ignored the application. So have they done in the past as I have demonstrated hereinbefore.
This application is dismissed with costs.
26th March 2003