Shale v Shale and Others (CIV/APN 103 of 89) [1990] LSCA 182 (4 December 1990)

CIV/APN/103/89 IN THE HIGH C O U RT OF LESOTHO In the m a t t er b e t w e e n :- MOKHALI SHALE Applicant and MAHLOMOLA SHALE AND 14 OTHERS Respondents J U D G M E N T Delivered by t he Honourable M r. Justice J. L. Kheola on t he 4th day of D e c e m b e r, 1990 On t he 1st M a y, 1990 t he applicant obtained an interim o r d er restraining the 14th respondent from disposing of a p p l i- cant's sixteen head of cattle and ordering him to release them to t he applicant upon payment of security, for safe keeping pending the finalization of an action instituted by the a p p l i- cant against respondents in t he Mafeteng Magistrate C o u r t. The o r d er has been fully complied with by t he 14th respondent and m u st be confirmed. The only question remaining to be decided is t h at of c o s t s. -2- M r. M d a, counsel f or the a p p l i c a n t, submitted that the 1st respondent had no reason to oppose this application. In his own affidavit he has stated that he together with the other respondents have always been willing that applicant's cattle be released from the pound upon payment of security in terms of the Laws of Lerotholi. It is surprising therefore why the 1st respondent is opposing an order directing what is consistent with his w i s h e s. According to the evidence placed before this Court by the 1st respondent, the applicant paid security on the 20th May, 1989 and his sixteen head of cattle were released to him on the same day. The security was paid to the 14th respondent in whose pound the cattle were k e p t. Two days later, on the 22nd M a y, 1989, the 1st respondent was served with the interim order, without any accompanying affidavit. It is not clear why the applicant decided to go ahead and serve the 1st respondent with an interim order requiring him to release or cause to be released sixteen head of cattle to the applicant when the latter knew very well that the said head of cattle had been released to the applicant by the 14th respondent. I am of the opinion that t he 1st respondent w as entitled to oppose the application on the ground that the said cattle had been released two days before he was served with the interim o r d e r. He w as no longer in a position to comply with the order and he w as entitled to place the facts before the C o u r t. /3 - 3- I do not agree with the suggestion that the intention of the 1st respondent is just to waste the Court's time and to cause the applicant to incur unnecessary c o s t s. There was no reason w hy the applicant served the 1st respondent with the interim order when he knew that two days before such service the 14th respondent had released the cattle. It seems to me that he was actually inviting the 1st respondent to state w h at his a t t i t u de w as towards the application and he cannot now say the 1st respondent ought not to have opposed the application. He had to inform the Court that it was impossible for him to comply with the court o r d e r. M r. Mda submitted that the 14th respondent must pay costs because he acted contrary to the provisions of section 13 (4) (c) of the Laws of Lerotholi in that he insisted on a condition not provided by the law, when he demanded payment f or damages despite the fact that the applicant had already taken the matter to Court as a dissatisfied party and the 14th respondent was aware of this. He insisted that he was going to sell the cattle despite the fact that he was aware that the applicant had already taken the m a t t er to Court. Section 13 (4) (c) of the Laws of Lerotholi reads as f o l l o w s :- /4 - 4- "The Chief or Headman in charge of a pound s h a l l, before releasing any impounded stock, demand from t he o w n er the amount of any assessed damages and t he pound f e e s. If the o w n er shall refuse to comply with t he demand or shall deny his liability, the owner shall forthwith state his objection to the Chief or Headman in charge of the p o u n d, w ho shall g i ve n o t i ce to all p a r t i es concerned, and thereafter, unless sufficient security is g i v e n, ha shall detain the stock until the dispute shall have bean settled between the parties: Provided t h at if t he dispute is n ot settled within 14 days or satisfactory evidence given within that time that court proceedings have bran instituted, the Chief or Headman may sell such of the stock as shall be sufficient to pay f or the pound fees and damages in accordance with sub-rule (5) of this r u l e ." T he stages described in section 13 (4) (c) above are very c l e a r. The first stage is that t he chief or headman in charge of the pound m u st demand payment of the assessed damages and the pound fees The second stage is t h at if t he o w n er of the animals denies liability he m u st pay sufficient security before his animals can be released to him. The third stage is that if t he dispute is n ot settled w i t h in fourteen days or satisfactory evidence given within fourteen days that court proceedings h a ve been instituted, the chief or headmen may sell the stock to pay for damages and pound f e e s. It seems to me that in the instant case the chief demanded payment of d a m a ge and pound f e e s. The o w n er of the stock refused to comply with the demand and also denied liability. A f t er that t he chief and t he owner of the stock did not discuss t he question of payment of sufficient security and t he chief continued his detention of the s t o c k. I think up to this space /5 - 5- the chief was entitled to refuse to release the stock. Then the o w n er of the stock instituted court proceedings in the Nafeteng Subordinate C o u r t. The applicant's Counsel wrote a letter to the chief demanding the release of the stock upon payment of sufficient security f or d a m a g e s. In his founding affidavit the applicant deposes as f o l l o w s :- "5:1 5:2 5:3 Having failed to negotiate a reasonable settlement with the Respondents, on the 13th A p r i l, 1989 I instructed my attorney M R. A . P . S. Mda to sue out summons against the Respondents herein for the release of my aforesaid livestock, which he did in CC 29/89 in the Mafeteng Subordinate C o u r t. On the 10th A p r i l, 1989 my counsel a d v. Z. Mda wrote a letter to the thirteenth R e s- pondent requesting him to release the said cattle to me f or safe keeping pending the finalisation of t he aforesaid a c t i o n. Honourable Court is referred to annexure marked "A". This On the 20th A p r i l, 1989 I attended the offices of the thirteenth respondent and met him in person; he advised me that he received the letter from my counsel and had taken note of the contents the rain but that he was not prepared to release the cattle as advised save if he w e re to be so ordered by the above Honourable C o u r t. The Principal Chief further warned me that if I was not in possession of such Court 0rder by the 1st Nay 1989 he would sell my sixteen head of cattle by public a u c t i o n ," In answer to the above allegations the 14th respondent deposes as f o l l o w s :- "AD PARA 5: /6 - 6- 5.1 Save to deny the question of negotiations at my offices and to say that I have not been cited as a defendant in said CC 29/89 I have no knowledge of contents herein. 5.2 Contents herein are admitted. 5.3 Save to say that I said that I would only release the cattle if he paid for the damages to the crops and the pound, contents heroin are admitted. 1 further told appli- cant that if fourteen (14) days expires the cattle will be sold by public auction." I agree with the submission that the 14th respondent acted contrary to the second proviso to section 13 (4) (c) of the Laws of Lerotholi by insisting that unless the appli- cant paid the assessed damages and pound fees, he would sell the cattle after the expiry of fourteen days. The second proviso makes it quite clear that if the owner of the stock produces satisfactory evidence within fourteen days that court proceedings have been instituted the chief or headman in charge of the pound is no longer entitled to sell the stock. His duty is to demand sufficient security from the owner of the stock and once payment of security is made he must release the stock. The applicant was entitled to come to -Court urgently to stop the unlawful sale of his stock and I am of the view that he is entitled to costs because if the 14th respondent had strictly complied with the provisions of law the applicant would not have been forced to incur unnecessary costs of instituting this application. In the result the 14th respondents and the 15th respondent are ordered to pay applicant's costs, jointly and severally, on /7 - 7- paying the other to be absolved. J. L. KHEOLA JUDGE 4th December, 1990. For Applicant - M r. Z. M da For Respondents - M r. Moorosi