HIGH COURT OF LESOTHO
application of :
PITSO MAKHETHA Applicant
RETIEF BOTHMA Respondent
by the Hon. Chief Justice Mr. Justice T.S. Cotran on the 15th day of
8th February 1985 the applicant was granted ex-parte Rule Nisi
calling upon the respondent to show cause why:-
"1. (a) He should not be ordered to release Isuzu
Truck with Registration letter and No F 1246 to Applicant.
(b) He should not be ordered to account for all the moneys paid
thereto by Applicant.
(c) He should not be ordered to pay the cost of this Application.
(d) He should not be restrained from demanding from Applicant
comprehensive insurance for the said Isuzu Truck Registration No
(e) He should not be ordered to referred (sic) Applicant an amount of
R2 378,55 being the payment for the comprehensive insurance.
(f) The above court should not grant such other and or alternative
relief deems fit.
1(a) Operates with immediate effect as an interim interdict".
1(a) meant that the respondent was to deliver the Isuzu truck
immediately to the applicant that did not in fact materialize.
Contempt proceedings were taken against the respondent in
CIV/APN/40/85 which, however, ended in his favour, with costs,
Judgment delivered by my brother Kheola J on the 25th March 1965.
So we are
now back to square one save that I have before me an application by
the respondent to be allowed, in exercise of the Court's
to file a further affidavit (with annexures) in terms of Rule 8(12)
of the High Court Rules to show that:
cheque dated 28th February 1985 from the applicant to respondent was
referred to drawer, and
for settlement of the dispute between the parties stretching from
15th April 1985 to the 22nd July 1985 had taken
latter application by respondent was resisted by the applicant whose
attorney asked that it be struck off in toto in terms
of Rule 29(5).
Mr. Edeling for the respondent said he is prepared to concede that
paragraphs 5 6 and 7 of the affidavit attached
to the notice
(relating to the negotiations between the parties) be struck off but
submitted that the averment that the applicant's
cheque dated the
28th February 1985 in payment of the instalment due had been
dishonoured was in order because when the opposing
filed on the 18th February 1985 there was no dishonour. Mr. Gwentshe
contends that if, as the applicant alleges,
he had not breached the
terms of his agreement with the respondent, the latter cannot justify
the applicant's alleged breach by
reference to an incident that
occurred in the course of judicial proceedings.
I said I
will hear arguments on both matters at the same time. Neither the
main application, nor the application to file another
affidavits by the respondent about a dishonoured cheque, present any
difficulty to me. As I see from the papers, the dispute
parties came about in the following
applicant was a businessman engaged in the transport of goods and
vegetables between the R S A and Lesotho.
A and B of the founding affidavit read in conjunction with annexures
R2, R3, R4, R5 and R6 of the opposing affidavit
indicate that a deal
was struck on the 23rd of August 1984 between the applicant and
Dukes Garage in Aliwal North and another
deal struck on the 30th of
August 1985 between the respondent and Dukes Garage in Aliwal North.
There is no affidavit from Dukes
applicant avers that he bought a new 1984 Isuzu Truck SBR 422 BA
"through the agency of the respondent" whilst the
respondent avers that he acquired the truck from Dukes Garage in his
own name on hire-purchase terms Wesbank providing the finance
truck was registered in Lesotho in his own name but which he handed
over to the applicant to enable him to carry on with
business as aforesaid. There is no affidavit from Wesbank.
was no joint commercial venture between the applicant and the
in the vegetables transport business but there was, it is common
cause, an oral
agreement between them, which the respondent says was motivated by
friendship rather than business considerations, about payment
instalments of the balance of the purchase price and the insurance
premiums. There is no evidence, however, or at best there
dispute as to whether the terms of the hire-purchase agreement were
incorporated into the oral agreement or that the applicant
of its terms or the respondent's breach of some of those terms:
indeed there is a ring of truth in what the applicant
says, viz, that
he traded in a truck valued at R11 000 with Dukes Garage which was
reflected as "cash" in the hire-purchase
December 1984 the applicant was in trouble with his creditors, but
not, as yet, with the respondent. Since the truck was registered
the name of the respondent, the applicant delivered the truck to him
to avoid its falling into the hands of his creditors.
however, appears to have paid off his creditors speedily and
demanded from the respondent the return of his truck.
first demurred then initiated an investigation into the applicant's
honesty (which he found wanting) then finally
refused to hand over
the truck. This indicates prima facie that at the time of handing
over of the truck to respondent there
may not have been any breach
or if there was a technical
the respondent had condoned the same. The application followed, the
extended return date of the Rule Nisi stretching from
February 1985 to the 6th September 1985.
truck was handed voluntarily to the respondent there was no question
of dispossession and mandamant von spolie could not
application therefore cannot be described otherwise than being one
for a mandatory permanent interdict by way of an order
which has the effect of granting applicant specific performance of an
oral contract, some of the terms of which are
in dispute, and, more
importantly, the legal consequences of which cannot be determined
before the facts are first resolved by
viva voce evidence. Indeed Mr.
Edeling says from the bar that the truck is no longer in respondent's
possession. In the circumstances
no Court will exercise its
discretion to grant specific performance by way of motion proceedings
and I doubt whether the Court's
discretion would have been available
if the applicant sought relief by way of action.
remedy that the applicant may have is one for damages for breach of
contract and he should, I think, have been so advised
in the first
place or at any rate soon after the opposing affidavit was filed and
the issues became clearer.
must accordingly be discharged. There is no necessity to pronounce on
the application to adduce a further affidavit because
it raises can be canvassed if an action for breach of contract is
for respondent asked for costs on attorney and client scale for
reasons advanced in his written heads of argument. The respondent
made allegations of dishonesty
the applicant which were unconnected, or only remotely connected,
with their oral agreement about the truck,but says nothing
own premeditated and admitted dishonesty vis-a-vis the rights of the
"owner" under clauses 4 and 8 of the instalment
agreement. Costs ordinarily follow the event on the usual scale but
here I think the Court should show its displeasure by
each party bears its own costs.
Applicant : Mr. Gwentshe
Respondent : Mr. Edeling
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