- FNBB had attached his properties for sale - Judge interdicts the sale in execution
Businessman, Samson Moyo Guma has managed to interdict First National Bank Botswana (FNBB) and Deputy Sheriff Bathusi Billy from selling his properties over a debt by his company, United Refineries Botswana Holdings (Pty) Limited.
The applicants in the urgent application are Samson Moyo Guma (1st Applicant) TEC (Pty) Ltd (2nd Applicant), Mmoloki Tibe (3rd Applicant) and Tiedze Chapi (4th Applicant). Respondents are FNBB (1st Respondent), Deputy Sheriff Bathusi Billy (2nd Respondent), Steven Bogatsu (3rd Respondent), Kefilwe Masilo Mosweu (4th Respondent) and Bookbinder Business Law (5th Respondent).
In his ruling, Justice Dr Zein Kebonang said FNBB and Billy are hereby interdicted and restrained from proceeding with the sales in execution over properties in Gaborone and Francistown, scheduled for last month and early this month respectively. The properties included a portion of lot 65878, Lot 35530 and Lot 43556 in Gaborone and Francistown respectively.
He said FNBB and Billy are also interdicted and restrained from levying any attachment on any of the Applicants' movable properties. The 1st and 2nd Respondents are to pay the costs hereof on attorney and client scale, the one paying the other to be absolved. He added that the interlocutory application by the 5th Respondent (bookbinder Business law) fails with costs and such cost are to be on a party to party scale.
According to the judge, the urgent application before him relates to a question of construction of the judgments of his Court and the Court of Appeal issued on the 12th October 2021 and 4th November 2022 respectively and to the rival contentions put forward by the parties as to the meaning of these judgments. He explained that the urgent application came about as a result of the Respondents having advertised the Applicants' properties for sale in execution. The sales in execution were scheduled for the 28th February and 8th March 2024 respectively.
The question that presented itself before the High Court was whether execution of writs issued in favour of the 1st Respondent against the Applicants and/or sureties/guarantors of United Refinery could be effected against them when the company (principal debtor) was under judicial management.
In answer to the above question, the judge stated: "Mindful that there is no judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management." Justice Dr Kebonang stated that the legal question posed above was referred by his Court to the Court of Appeal for determination, and a stay in execution was granted in favour of the Applicants, pending the determination of the legal question by the Court of Appeal.
“Following the decision of this Court on the 12th October 2021 to refer the parties' dispute to the Court of Appeal, the Respondents wrote to the Registrar two days later, that is, on the 14th October 2021, requesting her 'to prepare the record post-haste for the matter to be placed before the Court of Appeal' and to 'place the record of proceedings in case nos CVHGB 002289-18 (Segopolo J), UAHGB-000040-19 (Motswagole J) and MAHGB-000306-20 (Tau J) in addition to these proceedings, before the Court of Appeal, as soon possible for its consideration'. On the 4th November 2022 the Court of Appeal handed down its decision declining to consider the question referred to it on the basis that the referral had not been competent,” said the judge.
The judge stated that the Respondents contend that the decision of the Court of Appeal was determinative of the rights of the parties and that such decision had the effect of lifting the stay previously issued by this court in favour of the Applicants. He said for this reason, they contend that they are within their rights to sell the properties under attachment. Justice Dr Kebonang indicated that in response, the Applicants argue that the Court of
Appeal did not make any determination on the rights of the parties and that its decision did not have the effect of undoing the stay issued by this court.
"In my view, the construction advanced by the Respondents with respect to the Court of Appeal decision is problematic for a number of reasons," he said.
“First, it is incorrect that Court has determined the rights of the parties or the validity of the stay of execution issued by this court in favour of the Applicants. Second, the construction is also not an honest one. It is calculated to deceive. I say so because following the Court of Appeal decision, the Respondents wrote to the Bench Clerk on the 10th November 2022, requesting that the matter be enrolled 'for status hearing at the Court's earliest convenience so that the matter may be progressed to finality.' If the Court of Appeal had pronounced on the rights of the parties, what finality were the Respondents then seeking from this Court?” Justice Dr Kebonang said.
"The Respondents' lack of honesty is also compounded by the fact that on the 11th August 2023, they filed an application for direction. In it, they requested that this court must proceed to issue a final order in line with the direction of the Court of Appeal. The application for direction came up after the Applicants' had filed a contempt application accusing the Bank and the Registrar of Deeds of fraudulent dealing and of unlawfully selling their property. Against this background, the construction placed by the Respondents on the Court of Appeal judgment is not a genuine one but an attempt to justify their braven resort to self-help and contempt of court."
The applicants in the urgent application are Samson Moyo Guma (1st Applicant) TEC (Pty) Ltd (2nd Applicant), Mmoloki Tibe (3rd Applicant) and Tiedze Chapi (4th Applicant). Respondents are FNBB (1st Respondent), Deputy Sheriff Bathusi Billy (2nd Respondent), Steven Bogatsu (3rd Respondent), Kefilwe Masilo Mosweu (4th Respondent) and Bookbinder Business Law (5th Respondent).
In his ruling, Justice Dr Zein Kebonang said FNBB and Billy are hereby interdicted and restrained from proceeding with the sales in execution over properties in Gaborone and Francistown, scheduled for last month and early this month respectively. The properties included a portion of lot 65878, Lot 35530 and Lot 43556 in Gaborone and Francistown respectively.
He said FNBB and Billy are also interdicted and restrained from levying any attachment on any of the Applicants' movable properties. The 1st and 2nd Respondents are to pay the costs hereof on attorney and client scale, the one paying the other to be absolved. He added that the interlocutory application by the 5th Respondent (bookbinder Business law) fails with costs and such cost are to be on a party to party scale.
According to the judge, the urgent application before him relates to a question of construction of the judgments of his Court and the Court of Appeal issued on the 12th October 2021 and 4th November 2022 respectively and to the rival contentions put forward by the parties as to the meaning of these judgments. He explained that the urgent application came about as a result of the Respondents having advertised the Applicants' properties for sale in execution. The sales in execution were scheduled for the 28th February and 8th March 2024 respectively.
The question that presented itself before the High Court was whether execution of writs issued in favour of the 1st Respondent against the Applicants and/or sureties/guarantors of United Refinery could be effected against them when the company (principal debtor) was under judicial management.
In answer to the above question, the judge stated: "Mindful that there is no judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management." Justice Dr Kebonang stated that the legal question posed above was referred by his Court to the Court of Appeal for determination, and a stay in execution was granted in favour of the Applicants, pending the determination of the legal question by the Court of Appeal.
“Following the decision of this Court on the 12th October 2021 to refer the parties' dispute to the Court of Appeal, the Respondents wrote to the Registrar two days later, that is, on the 14th October 2021, requesting her 'to prepare the record post-haste for the matter to be placed before the Court of Appeal' and to 'place the record of proceedings in case nos CVHGB 002289-18 (Segopolo J), UAHGB-000040-19 (Motswagole J) and MAHGB-000306-20 (Tau J) in addition to these proceedings, before the Court of Appeal, as soon possible for its consideration'. On the 4th November 2022 the Court of Appeal handed down its decision declining to consider the question referred to it on the basis that the referral had not been competent,” said the judge.
The judge stated that the Respondents contend that the decision of the Court of Appeal was determinative of the rights of the parties and that such decision had the effect of lifting the stay previously issued by this court in favour of the Applicants. He said for this reason, they contend that they are within their rights to sell the properties under attachment. Justice Dr Kebonang indicated that in response, the Applicants argue that the Court of
Appeal did not make any determination on the rights of the parties and that its decision did not have the effect of undoing the stay issued by this court.
"In my view, the construction advanced by the Respondents with respect to the Court of Appeal decision is problematic for a number of reasons," he said.
“First, it is incorrect that Court has determined the rights of the parties or the validity of the stay of execution issued by this court in favour of the Applicants. Second, the construction is also not an honest one. It is calculated to deceive. I say so because following the Court of Appeal decision, the Respondents wrote to the Bench Clerk on the 10th November 2022, requesting that the matter be enrolled 'for status hearing at the Court's earliest convenience so that the matter may be progressed to finality.' If the Court of Appeal had pronounced on the rights of the parties, what finality were the Respondents then seeking from this Court?” Justice Dr Kebonang said.
"The Respondents' lack of honesty is also compounded by the fact that on the 11th August 2023, they filed an application for direction. In it, they requested that this court must proceed to issue a final order in line with the direction of the Court of Appeal. The application for direction came up after the Applicants' had filed a contempt application accusing the Bank and the Registrar of Deeds of fraudulent dealing and of unlawfully selling their property. Against this background, the construction placed by the Respondents on the Court of Appeal judgment is not a genuine one but an attempt to justify their braven resort to self-help and contempt of court."
