Molapo v Deputy Sheriff and Others (CIV/APN 452 of 93) [1994] LSCA 30 (18 February 1994)

1 CIV/APN/452/93 IN THE HIGH COURT OF LESOTHO In the Application of MASUPHA CASWELL MOLAPO Applicant and DEPUTY SHERIFF D MASENYETSE DORBYL FINANCE 1st Respondent 2nd Respondent 3rd Respodnent J U D G M E NT Delivered by the Ron Mr. Justice W. C. M. Maautu. Acting Judge, on the 18th day of February, 1994 In this Application applicant applied for an order in the following terms, "1 Return of a certain Mercedes Benz vehicle to the Applicant, and An interdict against all three Respondents interferring from with the Applicant's property, being the Mercedes Benz vehicle " A certificate of urgency dated the 3rd November, 1993 was issued by applicant's attorneys because according to Applicant the sale in execution was supposed to be on the 6th of November, 1993 In the circumstances (because applicant had attached a Legistratin Book dated 7th April, 1993) his ownership of the motor vehicle seemed to be unquestionable. On the face of the papers before him the Chief Justice had no option but to accept the bona fides of Applicant and thereby issue an Order on the 4th November, 1993 This order in fact stopped the sale int erms of of prayer 2 Prayer 1 directed that a Rule Nisi be issued returnable on the 15th Novmeber, 1993 On that day the application was expected to be finalised This Rule had to be extended several times until the 14th February, 1994 when this application is being argued First and Second Respondent are one person. Why they should have been made two seperate parties is not clear but they did not oppose this application Third Respondent opposed this application Third Respondent was critical of the fact that Applicant's attorney had certified this application as urgent The reason being that applicant (who is in Leribe) knew of the attachment of his vehicle in execution in September, 1993 but did nothing until N o v e m b e r, 1993 This delay is not explained. This criticism is justified. Nevertheless there can be no doubt that when the sale in execution became imminent, an element of urgency crept into the matter Mr B u y s, the attorney for third Respondent made an affidavit in support of Third Respondent in this application He denied that the vehicle in question was on loan from Applicant to the judgment debtor. He also denied that the sale in execution was scheduled for the 6th N o v m e b e r, 1993 and challenged Applicant to prove this allegation The onus of proof is, of course, alwys on the Applicant Mr Buy's affidavits on things that he (as attorney for Third R e s p o d e n t) did is quite in order. The facts that came to h is k n o w l e d ge (as an a t t o r n ey for Third Respondent in doing his job as an a t t o r n e y) can only be deposed to by h im Rule 46(1) of the H i gh Court p r o v i d e s: "A party in whose favour any judgment of the court has been given, may (at his own risk) sue out of the office of the Registrar one or more writs for execution. " That being the case, there can be no doubt that Mr Buys knows what he is talking about on matters concerned with execution of judgment It is common cause that the motor vehicle was attached in execution because of a writ issued by Mr Buys Beyond this point everything revolves on the Deputy Sheriff There is nothing in the Applicant's application that suggests that the Deputy Sheriff knew or ought to know that the motor vehicle that had been attached belongs to him. It seems no claim was made that this property belonged to him. If such a claim had been made the Deputy Sheriff was obliged to obtain security to his satisfaction from the judgment creditor in terms of Rule 46(3) (i) of the High Court, This security is intended to indemnify the Deputy Sheriff from any loss or damages he may liable for by reason of the seizure of that property. Only after being given security could he retain the property already seized and or proceed with the sale in execution Unless this is done, the Deputy Sheriff is obliged to release the property if he has already seized it If he had not yet attached it then he could not seize that property It would seem that the matter of actual attachment of property is a matter for the Deputy Sheriff, the Deputy Sheriff is nevertheless obliged to keep the attorney for the judgment creditor in the picture as he is carrying out the judgment for the benefit of the judgment creditor. The Deputy Sheriff can (if he is not properly advised) do everything without reference to the judgment creditor. He can attach, remove property, sell the property, deduct his commission and hand over the amount demanded in the writ of execution to the attorney for the judgment creditor If the Deputy Sheriff does this, he cannot complain if he has attached and sold property belonging to other people and (as a result of what he has done) action of damages are brought against him If be has not involved in judgment creditor he might face the problem alone. In this case attorney for the Third Respondent who is the judgment creditor does not deny, the motor vehicle in question has been attached in execution Third Respondent does not seem to have any evidence Chat a sale in execution was to be on the 6th November, 1993 In his affidavit he denies Applicant's allegation and calls upon Applicant to prove this allegation. The onus of proof is always on the Applicant This application for the return of the vehicle is really against the Deputy Sheriff (the First Respondent) who is alleged to be about to sell it. The Deputy Sheriff does not oppose this application The Third Respondent is cited merely because he has an interest in the process of sale in execution and the proceeds from it If then, the Court is obliged to grant this application against First Respondent by defalt. Third Respondent's opposition achieves nothing First Respondent is the only one who is liable for whatever is wrong with the attachment Third Respondent would only have been obliged to indemnify First Respondent (the Deputy Sheriff) if security to indemnify the Deputy Sheriff had been demanded after Applicant had made a claim Applicant never did this He only rushed to court to stop the sale Of all the parties only First Respondent knows what really transpired. He chooses to allows judgment to go by default Third Respondent's attorney is not really in a position to contest the vital facts. Third Respondent can only criticise Applicant because Applicant has not disclosed all what Third Respodnent considers to be vital information necessary for this court to enter judgment against Third Respondent With papers as they stand (as against First Respondent) Applicant is entitled to judgment, it does not matter for how long the judgment debotr had been lent the motor vehicle by Applicant., Third Respondent's attorney raised points of law against Applicant's application in an opposing affidavit This really ought to have been done without an answering affidavit He ought merely to have set forth the questions he intended to raise in terms of Rule 8(10(c) of the High Court The reason being that affidavits in general are intended to address questions of fact because they constitute evidence There is, however, nothing wrong in including questions of law among facts raised in an affidavit, so long as the purpose of an affidavit is not lost The court pointed out to the attorney for Third Respondent (during argument) that he would have been well advised to have enlisted theaid of First Respondent as Deputy Sheriff in oppossing this application If First Respondent had positively sworn to some of the facts that Third Respondent has personal knowledge about, the outcome of this application would have been different. Indeed I do not see why Third Respondent did not co-operate with First Respondent on whom he depended for the success of his opposition of this application Although the Deputy Sheriff is primarily an officer of the Court in the execution of judgments, he nevertheless does so in the interest of judgment creditors such as Third Respondent The writ a Deputy Sheriff executes is sued out by the Judgment creditor who is in this case the Third Respondent Third Respondent pays the Deputy Sheriff's fees To that extent the Deputy Sheriff is the servant or agent of the judgment creditor It is, therefore, puzzling that Third Respondent did not acquaint himself with the full facts surrounding this execution He might even have got the Deputy Sheriff (First Respondent)to make an affidavit in support of the opposition of Third Respondent Third and First Respondents ought to have opposed this application jointly as a team. Respondent felt the provisions of Rule 51 of the High Court (that is interpleader proceedings) were available to Applicant. They could have been, had Applicant contacted First Respondent who is the Deputy Sheriff, before the sale became imminent As already indicated Applicant (as the papers stand) seems to have left things until the very last day He could not nevertheless let his car be sold The court is not happy with his conduct. The Notice of Motion in terms of which the ex parte application was commenced contain the following words "IN THE MATTER FOR MANDAMENT VAN SPOLIE AND INTERDICT." Mr Buys argued that this could not be an application for mandament van spolie Mr. Buys is correct because the first allegation that ought to be made is that Applicant was in peaceful possession of the motor vehicle. It is common cause that the judgment debtor and not the Applicant was in possession of the said vehicle Possession creates the impression of ownership to the world in general The Deputy Sheriff (First Respondent) acting on this presumption of ownership correctly seized from the judgment debtor the said vehicle in execution of judgment This also cannot be disputed Henning J. in a case that is not very different from this one said: "I do not think that there can be any doubt that in our law possession of a moveable raises a presumption of ownership " This statement is found in Ebrahim v. Deputy Sheriff Durban and Another 1961(4) S,A. 265 at page 267 CD In it a motor car had been attached in execution If we accept the correctness of what Henning J. has said then Applicant ie wrong in his assertion that this is a spoliation application In the light of what has been said above, it is always a risk to leave a moveable in the possession of another person. In Zandberg v Van Zyl 1910 AD 302 at page 306 De Villiers C J found "The Messenger found the wagon in the apparent possession of the judgment debtor the time when the attachment took place the Messenger was justified int reating the wagon as belonging to the debtor in whose possession it was " . At The Zandberg case involved a wagon, in those days wagons were used as a mode of transport in place of the motor cars we use to-day The Deputy Sheriff therefore, acted correctly in attaching this motor vehicle which Applicant claims as his in these proceedings Applicant finds himself at an advantage because the Deputy Sheriff (First Respondent) did not contest this application Third Respondent for a reason not apparent to the Court chose not to enlist the support of the Deputy Sheriff If the Deputy Sheriff who is First Respondent had made an affidavit, he probably might have stated that the judgment debtor never even told him the motor vehicle in question belonged to applicant. Or, even if this was said he might have explained why he was not satisfied with the explanation or even with the Registration Book attached to Applicant's application The court unfortunately cannot speculate on the matter The great complaint of the Third Respondent which he raised at paragraph 3 of his affidavit is that the photocopy of the Registration Book Annexure "CM 1" was "totally illegible " I saw the Third Respondent's copy of annexure "CM 1", it was really too dark for anyone to read what it contained. The Court's copy was clear Page 2 of that Registration Book which showed when the first registration took place was not annexed. The court asked for the original of the Registration Book and found the Registration Book discloses that the vehicle in question was first registered in the name of applicant on the 7th April Third Respondent is of the view that because of the totally dark copy of the Registration Book with which he was supplied, there was no full disclosure. It seems there was adequate disclosure to the court because the rubber stamp on the face annexure "CI" showed the date of issue of the Registration Book to be 7th April, 1993. Nevertheless the court cannot ignore the fact that Third Respondent was not made fully aware of the date of registration of the vehicle in the founding papers because of the dark photo-copy Nowhere in the body of applicant's founding affidavit is the date of registration of the vehicle in Respondent's name disclosed There is no replying affidavit from Applicant. Thia could have been of great assistance to Third Respondent and to the Court While it has to be accepted that an Applicant ought not to supplement his case in a replying affidavit, that does not mean he cannot clarify it. Surely Applicant should have supplied Third Respondent with a much clearer photo- copy of annexure "CM1" The Third Respondent is correctly critical of Applicant's founding papers. Applicant says Third Respondent opposition is a brutum fulmen because First and Second Respondent are not opposing this application The Court has already stated that Third Reepondent unwisely did not obtain information from the Deputy Sheriff (the First Respondent) Third Respondent in this application depends on First Respondent Third Respondent cannot succeed in in this application without First Respondent, except on the question of costs In the case of Paul M, Mare v Tanki Fiee and Lemena C. of A.(CIV) No.2 of 1983 (unreported) the Court of Appeal had occassion to deal with a similar matter That was a matter in which the property (furniture) of some one else had been taken in execution while it was in the hands of the judgment debtor. The owner of the property was working in the Transvaal He learned from a relative what had happened and brought an urgent application in which "And in the matter of an application for mandment van spolie." appeared on the Notice of Motion. Dealing with Respondents' query that a Deputy Sheriff seizing property in the possession of a judgment debtor with the authority given by a writ of execution Maisels P said. "But there can be no doubt that appellant's claim was really a vindicatory one. This appears clearly from the papers filed by him the fact that a different label was placed on the nature of proceedings is irrelevant de Jager ad Others v Farah and Nestadt 1947(4) S A, 28 at 36 " Dealing with the question of document of title that is prime facie evidence of title Maisels P said. "There is in the affidavits no evidence to contradict the appellant's sworn affidavit that the furniture attached was indeed his or he was lawfully entitled to hold persuant to certain hire purchase agreements entered into " In short a man cannot just let his property that has been wrongfully taken go; nor can he be penalised unduly merely because he did not properly label the remedy he is seeking The court has already expressed substantial displeasure against Applicant. Even though this has to be reflected in an order of costs, in this particular case, the Court cannot ignore the fact that costs follow the event In any event Third Respodnent is not completely free of blame at places The Court is obliged, therefore, to balance the errors of both parties I, therefore, make the rule absolute but on the question of costs I make the following order (a) First and Second Respondent who are in fact one person are to pay costs up to the 15th November, 1993 These should be costs of one party (b) Third Respondent is to pay one third of the taxed costs of this application. W C M MAQUTU ACTING JUDGE 18th February, 1994 For Applicant For Respondent Mr Hlaoli Mr Buys