HIGH COURT OF LESOTHO
AND MORRIS JOINT
LIQUIDATORS OF LESOTHO
ALBERT MOTHAE RESPONDENT
the Honourable Mrs Acting Justice Hlajoane on the 11th Day of
POINTS RAISED IN LIMINE
an Application moved ex parte on an urgent basis, where the Applicant
is seeking an order for repossession of a vehicle presently in
synopsis by the Applicant is to the effect that, on the 8th April
1998 and at Maseru, the Applicant and the Respondent entered into a
written Hire Purchase Agreement in terms whereof a truck was sold by
the Applicant Bank and delivered on its behalf to the Respondent.
Applicant alleges that the Respondent is in breach of the said
Agreement and therefore is seeking to enforce his rights to repossess
the vehicle under the Agreement.
Application is opposed and the Respondent has anticipated the return
date. The Application is couched in the following terms:-
with the forms and provisions of the Rules of the High Court and
dealing with the matter as one of urgency as contemplated in terms
of Rule 8(22) of the Rules of the High Court.
a Rule Nisi do issue, returnable on the 17th October 2000, calling
upon Respondents to show cause why an order in the following terms
should not be issued.
2.1 The sheriff of this Honourable Court or his Deputy, be ordered to
immediately attach and take into his possession the following motor
vehicle at the premises of the Respondent or wherever it may be found
and to retain the same in his custody pending the final determination
of this application. To give effect to this order, the sheriff is
authorized to enter upon the premises of the Respondent at Tšenola,
Majoe-a -Litšoene, in the district of Maseru or any other
location and if entry is resisted to engage the assistance of the
Lesotho Mounted Police.
NISSAN CW45 TRUCK, Year of manufacture 1990 Engine No. GC
02199SA021221T Chassis No. CWB 46H 00383N
2.2 That the Sheriff or his deputy be authorized and directed to take
into his possession the said vehicle wherever the same may be found,
and hand it over to the applicant..
2.3 That Rule 2.1 and 2.2 shall operate as an interim interdict with
immediate effect pending the final adjudication of this application
2.4 That the Respondent pay the costs of this Application on the
scale as between Attorney and Client.
2.5 Granting further or alternative relief
Anticipation of the Rule
addressing the Court on the anticipation of the Rule, Counsel for the
Applicant showed that the Respondent has failed to comply with Rule
8(18) of the Rules of this Honourable Court in that his notice falls
short of the 48 hours notice stipulated in the rule.
Rule 8(18) "Any person against whom an order is granted ex
parte may anticipate the return day upon delivery of not less than 48
answer, Counsel for the Respondent argued that urgency has been
created by the Applicant himself by choosing to approach the Court ex
parte. To make the 48 hours required by Law an hour to two, still
remained, but most importantly the issue would be whether or not the
difference in time has caused the Applicant any prejudice. Applicant
never alleged any prejudice suffered. Because of that, the
invoked the provisions of Section 59 of the High Court Rules 9 of
Section 59: "Not withstanding anything contained in these Rules
the Court shall always have discretion, if it considers it to be in
the interests of justice, to condone any proceedings in which
provisions of these rules are not followed."
Contempt of Court
contended that the Respondent was in contempt of Court as he has
willfully and mala fide refused to comply with the order of Court. He
went further and showed that the Court was entitled to refuse to hear
any person who disobeyed its order until he has purged his contempt.
This Application was moved from the bar.
Rule 8(1) of the High Court Rules clearly spells out that every
Application must be brought on notice of motion.
Rule 8(1) "Save where proceedings by way of petition are
prescribed by any Law, every application shall be brought on notice
of motion supported by an affidavit setting out the facts upon which
the applicant relies for relief."
application was therefore improperly brought before court, it cannot
be moved from the bar no matter what the return of service may have
said. A proper application ought to have been filed to allow
Respondent chance to come prepared
here alleges that Notice of intention to oppose was filed on the 22nd
October, 2001 one day before service was effected upon the
Respondent. The explanation was that the order was granted on the
10th October, 2001 and the matter was placed on the roll for the 22nd
October, 2001 and that was how the Respondent came to know about it
as the Rolls of the High Court are public documents.
point was also raised from the bar by the Applicant who did not also
allege any prejudice suffered. This point ought to have been made on
notice by way of replying not from the bar. This point in limine also
fails for the reasons given above.
making decisions on the points in limine raised by the Applicant on
the anticipated return date, the Court went further to make a
determination on points in limine raised by the Respondent in the
contends that the Applicant is attempting to enforce a contract
by way of
motion proceedings which is not permissible in law as it amounts to a
disguised action. The Applicant on the other hand submits that in
fact the true position is that Applicant only enjoys the rights
flowing from the contract, the right to repossess the vehicle. This
being in terms of the provisions set out in the Hire Purchase
case of Lesotho National Development Corporation vs Shelter
Development and Construction Lesotho (Pty) Ltd CIV/APN/250/90
(Unreported] Applicant and Respondent had entered into a sublease
agreement in respect of Applicant's plot. There was an agreement as
to when the contract was to commence, being the date from which
rental would apply. In raising points in limine Mr Buys for the
Respondent contended that the nature of those proceedings was
was referred to a passage of the Uniform Rules of Court by Nathan
"The ordinary procedure for setting disputed questions of fact
is not by affidavit but by viva voce evidence (Meyers vs Branndo 1927
TPD 393), and an applicant who deliberately initiates proceedings by
way of Application when he knows that a real dispute of facts must
inevitably arise, and for which an action is the appropriate
procedure, does so at his peril."
in limine succeeded as the Applicant was taken to have followed
procedure by opting for motion proceedings instead of trial action.
case the Applicant in his papers shows that he is entitled to a
remedy of intervention by the High Court by virtue of Common Law
rights as well as per the agreement between the parties without going
into expensive and time-consuming litigation. He could definately
foresee that there was going to be a dispute of fact which cannot be
resolved on affidavits. Merely alleging that one is in arrears
without proving it is not enough, as the Respondent on the other hand
concedes that he has in fact paid in full and produced Bank deposit
slips to support his case.
It is a
well established principle that a party stands or falls by his
founding affidavit. Applicant has only attached to his founding
papers the Hire Purchase agreement as annexure "B" and also
annexure "C" styled customer's statement for T.A.M.
Industries (Pty) Ltd not Thabang Mothae who signed as purchaser under
the agreement. It has not been explained how the alleged outstanding
balance of one hundred and seventy three thousand, one hundred and
sixty seven maloti, sixty Iisente (M1 73,167.60) is arrive at.
It is the
Respondent's contention that the Applicant as presently cited in
these proceedings has not been appointed as such to be liquidators of
Lesotho Bank, as according to Applicant's annexure "A" the
appointee is KPMG/Harley and Morris and Company and not KPMG/Harley
and Morris Joint Venture.
responding to that, the Applicant shows that in fact the entity
stated as KPMG/Harley and Morris Joint Venture is the same body as
KPMG/Harley and Morris and Company. This, he is saying not in his
founding papers but when submitting his heads of argument. Rule 8(1)
of the High Court Rules clearly shows that "every application
shall be brought on notice of motion supported by an affidavit
setting out the facts upon which the applicant relies for relief."
Respondent contends further that such statements of facts must
contain amongst others, Applicant's right to apply i.e. Locus standi.
at B1-B37 in Erasmus - Superior Court Practice, has stated that "It
is trite law that appropriate allegation to establish locus standi of
an Applicant should be made in the launching affidavits and not in
the Replying Affidavits." The same pronouncement was made in the
case of Scott and Others vs Hanekom and Others 1980 (3) S.A 1182 at
1188. The Court went further in the above case to show that,
"thus if it is indeed so that the challenged passages in the
affidavits are not legitimate responses to the 1st Respondent's
allegations and have been included solely to remedy an omission in
the launching affidavits, they are liable to be struck out."
present case there has been no chance to remedy the omission since
the rule has been anticipated and no answering and replying
affidavits therefore to be filed.
cited case goes further to show that, "it is however not
necessary in every case and the Court must still decide whether
enough evidence has been placed before it to warrant the conclusion
that it is the applicant which is litigating and not some
unauthorized person on its behalf. When one looks at the letter of
appointment by the then Acting Minister of Finance the address for
the appointee KPMG/Harley and Morris and Company is P. O. Box 7755,
Maseru, whereas the founding affidavit the address of KPMG/Harley and
Morris Joint Venture is 3rd Floor Christie House, Orpen Road, Maseru.
looking at the two entities one is not sure as to whether we are
still talking about one and the same thing. The Court is therefore
unable to say for certain whether KPMG/Harley and Morris and Company
is the same entity as
and Morris Joint Venture as there is no explanation from the papers
particularly the founding papers.
has been duly authorized to depose to the affidavit, there is no
question about that, see the case of Mall (Cape) Pty Ltd and Merino
Ko-operasie Bpk 1957 (2) S.A 347 at 352. But the authority which in
our case has conferred authority on him is different from that which
in fact was appointed under Annexure "A" of the notice of
appointment of KPMG/Harley and Morris and Company is considered by
the Respondent to be void ab origine, in that the letter of
appointment was issued before Act No. 2 of 2001 Lesotho Bank
(Liquidation) Act, came into force.
papers, the letter of appointment as liquidators is dated the 29th
January, 2001 whereas the Act giving effect to the appointment came
into force on the date of its publication which was 31st January,
2001. In response to this the Applicant avers that in fact the
appointment of liquidators letter of the 29th January, 2001
constituted the appointment from the first of February until the
winding up process is completed. Meaning that the commencement of the
letter dated 29th January, 2001 is the first day of February, 2001
which is a day after the resolution was passed dated 31st January,
2001. Unfortunately I did not see that resolution which it is alleged
is attached and marked "AR2". Even if I did, would not
change the position.
from paragraph 3 of his founding affidavit, Attorney for the
"The Applicant is KPMG/Harley and Morris Joint Venture
Liquidators of Lesotho Bank (In liquidation) duly appointed in terms
of the Lesotho Bank (in liquidation) Act No. 2 of 2001, as read with
a letter of appointment dated 29th January, 2001 marked "A"
paragraph quoted clearly shows that the appointment as liquidators
has been effected in terms of the provisions of the Act. Under the
said Act No.2 of 2001 interpretation of the word liquidator is as
"It means the person appointed under Section 5 and includes a
of the Act.
OF THE LIQUIDATORS
"The Minister shall appoint a liquidator on such terms and
conditions as the Minister may determine".
Preamble to the Act, Act No. 2 of 2001 Lesotho Bank (Liquidation) Act
2001 reads as follows:
"An Act to make provision for the voluntary liquidation of the
Lesotho Bank and for connected purposes."
be making a serious omission if I should fail to mention one other
important section in the said Act, Section 3 .
"The Minster shall, upon commencement of this Act, take such
measures as may be necessary for the purpose of winding up the
affairs and for effective dissolution of the Bank."
section referred to above clearly shows that the Minister shall only
act in preparation for the liquidation of the Bank upon commencement
of the Act. The appointment of liquidators clearly therefore ought to
have been made in terms of the provisions of the Act, Section 5 of
the Act. Though in his letter the Minister made no reference to any
law that gave him power to appoint, the appointment was pre-maturely
made as it ought to have been made in terms of section 5, after the
coming into effect of the Act.
Machines (Edms) Bpk vs Die Afdeling Spemoffsier, SA Polisie,
Noer-Transvaal 1972 (1) S.A. 376, the Court held that the issuing of
a notice prohibiting pin-tables, before the commencement of the
empowering statute, was null and void on account of the fact that
such issuing of the notice was not
to put the enactment into operation.
case, as rightly pointed out by counsel for the Applicant, the
Minister derives his powers to appoint under the Act and cannot
therefore purport to act before the relevant law giving him power
came into effect. The appointment was therefore a nullity, void ab
raised here in limine is that, the Minister of Finance ought to have
made a determination and publish in a gazette as to which assets
(which include debts due) of the former Lesotho Bank now in
liquidation, are to vest in the new Lesotho Bank known as Lesotho
Bank (1999) limited. That until this statutory provision has been
complied with Applicant, if properly appointed, is in no position to
proceed with liquidation or any action against Respondent. Section 10
of Act No. 1 of 2000 Lesotho Bank (1999) limited (Vesting)
Publication of transferred assets and liabilities;
10: "The assets and liabilities referred to in the agreement
which shall be vested in, and transferred to, Lesotho Bank (1999)
limited shall be assets and liabilities of Lesotho Bank as may be
prescribed by the Minister by notice published in the gazette.
of 2001, Lesotho Bank (Liquidation ) Act 2001 Section 8(1)
"Upon appointment, the liquidator shall take control of all the
affairs of the Bank except those referred to in section 10 of Lesotho
Bank Vesting Act."
point, the Applicant strongly argues that, he sees no relevance
between the two pieces of legislation, in particular the Sections
quoted above. According to him what the vesting Act achieved amongst
others was a division of assets and liabilities between the Lesotho
Bank (in liquidation) and the Lesotho Bank (1999) limited. The
Applicant argues further that in fact a resolution in terms of
Section 210 of the Companies Act 25 of 1967 has been validly passed
which alone is sufficient to place the Lesotho Bank (in liquidation)
in voluntary liquidation.
already stated that the resolution referred to as "AR" is
not part of the documents that are filed of record, so that there is
no proof that any resolution was ever made. I would there fore not
agree with the suggestion by the Applicant that Section 10 of Act
No.1 of 2000 and Section 8(1) of Act No.2 of 2001 are not related.
Unless and until the Minister has made his determination in terms of
Section 10 of Act No. 1 of 2000, the liquidator properly appointed is
in no position
to act in
terms of Section 8 of Act No.2 of 2001.
of Fact and Ownership
It is the
Applicant's case there that under the Hire Purchase agreement
ownership remains vested in the Applicant until payment in full has
been made, so that ownership could not be said to be in dispute.
Respondent on the other side avers that the issues of ownership of
the vehicle and whether or not payment has been made in full were
clearly foreseeable disputes. The dispute in fact arises as
Respondent claims to have paid in full and has attached to his
answering affidavit deposit slips to prove his point. He also claims
to be the owner by virtue of statutory provisions under the Road
Transport Act No.6 of 1981.
interpretation of "owner" under the Act is given as
"Owner, in relation to a vehicle includes a joint owner of a
vehicle and when a vehicle is the subject of a hire purchase
agreement, includes the person in possession of the vehicle under
therefore seem that even under the hire purchase agreement the
purchaser is also still considered to be the owner. Owner in our case
is even being
by the fact that the Respondent claims to have paid in full the
vs Attorney General and Another 1995-96 LLR & LB 470 at 487 where
the case of Associated South African Bakeries (Pty) Ltd vs ORYX &
Vereimigte Backereien (Pty) Ltd en Andrere 1982 (3) S.A. 893 has been
cited, the Court had this to say;
"Where in proceeding on notice of motion disputes of fact have
arisen on the affidavits, a final order may be granted if those facts
averred in applicants' affidavits which have been admitted by the
respondent together with the facts alleged by the respondents justify
such an order."
submits that the matter is not urgent as in terms of Annexure "C"
to the founding affidavit, which is styled "customer's
statement", it is clear that the plaintiff waited for three
months before bringing the matter to Court. The statement is dated
30th June, 2001 and the Application was filed on the 10th October,
on the other hand insists that the matter is urgent and given the
nature of the subject matter. He speaks of risk which if notice was
the course of justice as Respondent continues to enjoy the use of the
truck, thus denying applicant the benefit of setting off the loss
worth noting that in fact the Applicant has not shown as to when the
Respondent started falling into arrears or when he ceased to make any
payments. I have already indicated that the Applicant has followed a
wrong procedure by opting for motion proceeding, instead of trial
action in order to enforce a contract. Now this, coupled with the
delay in bringing the proceedings to Court plaintiff should consider
himself to be standing on a very slippery ground and chances of him
not following are zero. See the case of Kingsborough Town Council vs
Tuirlwell and Another 1957 (4) S.A. 533. The reasons for the delay
have not been given by the plaintiff.
Respondent contents that Prayer 2.1 and 2.2 are not only vague but
also contradictory. The other prayer is for the deputy sheriff to
take possession of the vehicle and retain it in his custody, prayer
2.1, whilst on the other hand prayer 2.2, the deputy sheriff is to
take possession of the vehicle and hand it over to Applicant. The two
prayers were to operate with immediate effect as interim interdicts.
point is not to be considered in isolation, it has to be considered
together with other points already raised as that one on dispute of
fact. The respondent has submitted that he has paid in full and has
submitted his slips. The Applicant on the other hand only makes
allegations of varying Bank accounts without giving us any
documentary proof. It is trite law that where there is a glaring
dispute of fact Respondent's version is to be preferred to that of
the Applicant. Supreme Furnishers vs Molapo 1995-96 LLR - LB 377 is
the authority on that point.
could not be said to have had no other remedy safe to go by way of
motion proceedings alone. Where there is an existing remedy with the
same results for the protection of the applicant, an interdict will
not be granted, this proposition comes from Prest Interlocutory
Interdicts at 51.
premise, the points in limine raised by the Applicant on anticipation
of the return date fail and the points in limine by the Respondent on
the main Application succeed. The rule is therefore discharged with
Applicant: Ms. Makhera
Respondent: Mr Ntlhoki
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