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Deputy Sheriff ordered to return herd of 27 cattle

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By SIBUSISO NGUBANE - SWAZI TIMES-23-Aug-2009

MBABABE—Deputy Sheriff for the Shiselweni Region Joseph Dlamini has been ordered by the High Court to return a herd of 27 cattle he unlawfully attached from Bonginkhosi Mkhabela in December last year.

Mkhabela had filed an application at the High Court where he sought an ordering for the return of the 27 cattle which were taken from one Bhekani Mkhabela. Judge Thomas Masuku on Friday ordered that the cattle attached from Mkhabela on December 3, 2008 be restored to Bonginkhosi’s possession forthwith. Justice Masuku also ordered that Dlamini and Thoko Mkhabela, who was also a respondent in the matter, should pay the costs of the application which include costs of Counsel as certified in terms of Rule 68 (2) of the High Court rules as amended.

Dlamini is said to have attached the cattle with an order which did not identify Bonginkhosi’s cattle.

In his judgement, Justice Masuku said it was clear that the attachment was unlawful and contrary to the terms of the order confirmed to be executed. He said such a situation cannot be in the interest of the public and the general interests of the administration of justice being allowed to prevail.

"The situation is exacerbated by the fact that two deputy sheriffs and a posse comitatus of police officers failed to read, properly understand and appreciate and therefore property execute the terms of order dated March 11, 2005," said Masuku in his judgement.

The judge mentioned that executing court orders is serious business for it has the propensity to interfere with people’s possession of their property.

He said for that reason, scrupulous care and sedulous attention must be given to the letter of order of court concerned so that violence to the terms thereof is not heralded. "As a result of failing to understand the court order in the instant case, the first applicant’s property was irregularly attached, a situation which cannot be countenanced. It’s for the reason that I come to the view that to exercise this court’s discretion against hearing the applicants would be incorrect and unconscionable and would tend to legitimate what is clearly unlawful," lamented the judge.

Unnecessary

Justice Masuku said he found it unnecessary to decide the issue superannuation of judgement and orders raised by the applicant’s attorney. He declined to deal with that issue for the reason that it is abundantly obvious that the attachment and removal of Makhabela’s cattle was unlawful and clearly unauthorised. He said to deal with that issue would have been, in his view, result in superfluity.

"For the foregoing reason, I am of the view that the application should succeed with costs. The first respondent, on his version, made common cause with his colleague, the substantive Deputy Sheriff, in the execution of the order and in effect opposed the application," he said.

The judge found it appropriate to mulct him with costs together with his co-respondents. He noted in particular that it was only in the heads of argument that costs on the punitive scale were only applied for.

Judge Masuku ordered that the costs are to be levied at the scale between party and party and are to be paid jointly and severally by Dlamini and Thoko, the one paying the other to be absolved.

Advocate Lucas Maziya appeared for the applicants, while lawyer Mduduzi Mabila appeared for Dlamini with S C Dlamini appearing for Thoko Mkhabela.


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