LOBATSE CAR BREAKERS v ANTBEE BODY WORKS (PTY) LTD AND ANOTHER 2006 (2) BLR 431 (HC)

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Citation: 2006 (2) BLR 431 (HC)
Court: High Court, Lobatse
Case No: Civil Case No 679 of 1997
Judge: Kirby J
Judgment Date: June 21, 2006
Counsel:
J Chaledzela (managing director of the applicant). S P Mwiya for the respondents.
Flynote

Practice and procedure - Execution - Attachment - Application for setting aside of - Duty of attorneys to ensure that proper returns rendered of attachment and sale, together with accounting of payments made and calculation of balance outstanding on writ.

Headnote

The applicant applied for the attachment by the deputy sheriff of certain items utilised in its business to be set aside. It appeared from the documents of record that the deputy sheriffs have failed to execute their duties according to the Rules of the High Court, thereby causing prejudice or potential prejudice to the parties. The papers contained six returns of attachment, all purportedly made on the strength of the same writ of execution. No details were however available of what had happened to previous items attached, whether they had been sold or what had happened   to the proceeds of such sales, if any.

 

Held: (1) It was the duty of attorneys to ensure that after each attachment, proper returns were rendered of the attachment and sale, together with an accounting of payments made and a calculation of the balance outstanding on the writ.

 

(2) Ordered that no further attachment was to be made, or at least no further sale held, before an accounting had been rendered following the initial or prior attachment and sale, with a calculation of the balance outstanding. Romela Internet Communications (Pty) Ltd and Another v IBM  Botswana (Pty) Ltd [2003] 1 B.L.R. 260 applied.

Case Information

Cases referred to:

 

Romela Internet Communications (Pty) Ltd and Another v IBM Botswana (Pty) Ltd [2003] 1 B.L.R. 260

Water Engineering (Pty) Ltd v Murray & Roberts (Botswana) (Pty) Ltd (Formerly Multi Construction Building and Engineering (Pty) Ltd) [2002] 2  BLR 68, CA

Application for attachment by deputy sheriff to be set aside. The facts are sufficiently stated in the judgment.

J Chaledzela (managing director of the applicant).  

S P Mwiya for the respondents.

Judgment

KIRBY J:

 

This is an application to set aside an attachment by the deputy sheriff of a welding machine, gas bottles and certain items from the business of the applicant, which is a limited liability company.  

 

Mr John Chaledzela appeared, so he said, to represent the applicant before this court as its managing director. He is not an attorney. It appears from the record that he has been given some latitude in this regard in previous appearances, perhaps because of the court's sympathy occasioned by the less than perfect representation he has been accorded by earlier legal counsel briefed by him. Be that as it may, it is clear both from the  rules and from the unambiguous judgment of the Court of Appeal in Water Engineering (Pty) Ltd v Murray & Roberts (Botswana) (Pty) Ltd (Formerly Multi Construction Building and Engineering (Pty) Ltd [2002] 2 B.L.R. 68, CA at p 71, that a director may not appear or be heard on behalf of a company before this court, and Mr Chaledzela was so informed. To pursue this applicant's application to set aside the attachment, it will be  necessary for the applicant to engage a lawyer, and it has liberty, having done so, to re-enroll the application on the present papers.

 

But that is not the end of the matter. It appear ex facie the documents filed of record that certain deputy sheriffs, who are officers of this court, have failed to execute their duties according to the Rules of the High Court (Cap 04:02) (Sub Leg), and have thereby caused prejudice or potential  prejudice to the parties. When such failure or abuses of the Rules of the High Court appear from a record before it, the court cannot sit idly by, but must take an active role as the guardian of its own procedures, which are designed to assist rather than to oppress litigants.

 

Contained within the papers filed at court are no less than six returns of attachment, all purportedly made on the strength of the same writ of  execution issued on 12 March 1998 to enforce a judgment against the applicant for the sum of P30 000, interest, collection commission and costs.

 

Of these the first three, which relate to sundry vehicles and spare parts were executed by Deputy Sheriff Nkwebane, who it appears has now passed away.

 

However it is apparent that no sale in execution took place on the

strength of these. After the first attachment on 28 June 1998 (which was of vehicles) arrangements were made to pay off the debt by instalments. The next two attachments, in November 1998 and December 1998 were of a Mazda vehicle and spare parts. These too were not then sold, presumably because the deputy sheriff passed away. However Deputy Sheriff Sebeela repeated the attachment, of the same items and   others, on 5 February 1999, and his return of attachment is on the file. The applicant confirms that it is the same items, inter alia, which were attached.

There is no return on the file of the sale, return, or disposal of the attached items, and nor has one been filed in response to the order of the Chief Justice made on 20 June 2005, notwithstanding service on Deputy Sheriff Sebeela of the order. Items attached were significant, including a vehicle,   machinery, car parts, tools, furniture and motor engines.

 

The next attachment was of a further vehicle on 27 August 2000 by Deputy Sheriff Mogorosi. Again no return of the sale or other disposal of this vehicle has been filed, notwithstanding an order by the Chief Justice that this be done. Instead on 14 July 2005 Deputy Sheriff Mogorosi filed what   he called a 'Return of Service' in which he states, under the heading of the present case, as follows:

 

     'I confirm that I received the sum of P11 900 from the Defendant and I deducted P3 150 as my costs and forwarded P8 750 to the Plaintiff.'

  There is no explanation as to what happened to the attached vehicle, no explanation as to the justification for his costs, and no response to the applicant's averment that it made further payments to him thereafter by deposits into his account. I note that the respondent also denies receiving this sum in reduction of the judgment debt.

 

The final attachment was by Deputy Sheriff Chilisa on 20 April 2005, and this is the one sought to be set aside in the present proceedings. No sale   has as yet occurred and the goods remain in the custody of the applicant.

 

The fate of the goods attached in the prior two attachments is of obvious concern, since, the respondent himself in his affidavit in opposition says he does not know what happened to them. The applicant also states that he does not know what became of them.

  

The respondent's attorneys, the last in a succession of counsel seized of this case, claim knowledge and responsibility only for the final attachment and ask that previous deputy sheriffs and attorneys be joined as parties to the proceedings. I do not think that that is the appropriate course. The issue is that successive attachments are being made on the same writ with no accounting for payments made, or for the fate of goods   attached. The applicant, as debtor, remains in the dark as to the amount outstanding on his debt, if any, and has been disturbed in his business over a number of years by attachments of his property. That is not right, whether or not he has fully discharged the debt as he claims. The deputy sheriffs of the court act under the direction of the attorneys who cause writs of execution to be issued. It is the attorneys who instruct whether and when they wish execution to be levied, often by deputy sheriffs in their own employ. It is the duty of attorneys to ensure that after each attachment proper returns are rendered of the attachment and sale, if any, together with an accounting of payments made and a calculation of the balance outstanding on the writ.  

 

No further attachment is to be made, or at least no further sale is to be held, before an accounting has been rendered following the initial or prior attachment and sale, with a calculation of the balance outstanding. See the recent judgment of this court in Romela Internet Communications (Pty) Ltd and Another v IBM (Botswana) (Pty) Ltd [2003] 1 B.L.R. 260 where the rules relating to returns of execution were outlined in detail. Applying the  rules, I make the following order:

 

     (a)     Pending determination of this application or the lapse of the period referred to in (d) below, the attachment of 20 April 2005 shall remain in force, with the goods attached in the possession of the applicant, who is precluded from disposing of them.   

     (b)     The respondent's attorneys are to cause to be filed with the court and served on the applicant:

              (i)    An affidavit from Deputy Sheriff Mmoloki Sebeela accounting for the fate of the goods attached on 5 February 1999 and any proceeds of the sale thereof.   

              (ii)   An affidavit from Deputy Sheriff Caine Mogorosi accounting for the fate of the vehicle attached by him on 27 August 2000, and for all sums of money recovered by him from the applicant, including a response to applicant's claim to have paid certain sums into his account against the judgment debt, and a detailed breakdown of any sums retained by him for costs.    

              (iii)   An accounting showing all sums paid to date on the judgment debt, including any direct payments to the respondent's present or past attorneys and showing the balance outstanding on the writs.

     (c)     Pending the rendering of the account and the delivery of the affidavits, there shall be no sale in execution of the goods attached, nor any new attachment.    

     (d)     Should the affidavits and accounting not be filed and delivered within six months of today's date, the attachment of 20 April 2005 shall ipso facto be released.

     (e)     The costs of today's hearing shall be costs in the main application.

Application removed from roll.

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