CIV/APN/208/84

IN THE HIGH COURT OF LESOTHO

In the Application of

TELEVISION AND ELECTRICAL

DISTRIBUTORS (Pty) LTD.......... Applicant

and

ZAKHURA BROTHERS (Pty) LTD....... Respondent

JUDGMENT

Delivered by the Hon. Mr Justice B.K. Molai on the 29th day of October, 1987.

On 18th September, 1984, the Applicant herein filed with the Registrar of the High Court a notice of motion in which the court was moved for an urgent order couched in the following terms

"(1) That the Deputy Sheriff of the above mentioned Honourable court is hereby ordered to attach, seize, remove and retain in his possession and custody, the goods reflected in the schedule, attached hereto, marked "B" and to keep same under attachment and in his custody and at the High Court of Lesotho pending the final end and determination of an action instituted simultaneously herewith by the Applicant against the Respondent

2. That prayer (1) operate as an interdict with immediate effect and that a Rule Nisi do hereby issue calling upon the Respondent and any other interested party to show cause on Monday the ..... day of............ 1984 at 9.30 a.m. in the forenoon or as soon thereafter as the matter may be heard, why this interim order should not be made final and absolute.

3. That the Respondent be and is hereby interdicted in anyway from disposing or encumbering the goods referred to in annexure "B" attached hereto in the hands of the Deputy Sheriff of Lesotho.

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4. That the Respondent be ordered to pay the costs of this application.

5. Further and/or alternative relief."

The application Was, on 19th September, 1984, granted and the rule nisi issued as prayed in the notice of motion. The Respondent opposed confirmation of the rule and affidavits were duly filed by the parties.

At the commencement of the hearing of this application the Respondent company raised two points in limine. Firstly, that what a certain Aaron, the driver of the applicant's vehicle, who did not file an affidavit in these proceedings should be expunged from the record on the ground that it was hearsay evidence Secondly that John Williem Badenhost who deposed to the founding affidavit was not authorised so to do by the applicant company.

I agree that as Aaron has filed no affidavit in these proceedings what he allegedly told John Williem Badenhost is hearsay evidence and should not influence the judgment in this case. However, I am not convinced that the disregard of what Aaron told John Williem Badenhost is necessarily fatal to this application.

As regards the second point in limine it is to be observed that ad para.4 of his founding affidavit John Williem Badenhost states on oath that the applicant has duly authorised him to make the affidavit. As proof thereof he had attached annexure "A" - a telex purporting to be from the applicant's headquarters in Johannesburg. Annexure "A" clearly authorises the institution of these proceedings, the making of the affidavit by John Williem Badenhost and that attorney S.C. Harley who now represents the applicant should act in these proceedings.

It has been argued that the telex .-annexura "A" - is defective in a number of ways and cannot, therefore, be regarded as an extract of the minute of a Resolution authorising John Williem Badenhost to file the founding affidavit in this application. I have already pointed out that in his affidavit, John Williem Badenhost has stated on oath that he is authorised by the applicant to make the affidavit. Even if annexure "A" were

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defective and no extract of the minutes of a Resolution I would not be inclined to disregard John Williem Badenhost's averment on oath that He has the applicant's authority to file,the affidavit in this case. To do so would, in my opinion, be stretching formality too far. It stands to reason , therefore, that the view that I take is that the second point in limine ought not to succeed and it is accordingly dismissed.

Now, it emerges From the affidavits that the applicant is a company registered in terms of the Companies Act of the Republic of South Africa and carrying on business as television, video and electrical distributor. It is a wholly owned subsidiary of Tedelex limited whose headquarters are in Johannesburg. The Respondent is also a company registered in terms of the Company Laws of the Kingdom of Lesotho, carrying on business as wholesalers at Mofeteng.

According to the affidavit of John Williem Badenhost, the area manager of the applicant company, the applicant has customers within the Kingdom of Lesotho. During July and August, 1984, the applicant received, at its office in Bloem-fontein, orders from various customers in Lesotho.

On 21st August, 1984, applicant's vehicle was accordingly despatched from Bloemfontein to make deliveries of the goods mentioned in the copies of invoices annexures "Cl" to "C22", to various customers whose names are referred to in annexure "B" and/or annexure "C1" to "C22". The value of the consignment was R17,909-39 and the driver of the vehicle one Aaron whose further names are unknown to the deponent

On 23rd August, 1984, the deponent received from the Mohale's Hoak police station, a telephone call as a result of which he immediately proceeded to the police station where he found Aaron in the custody of the police. The vehicle was missing together with its consignment. Following a report made by Aaron the deponent traced the vehicle to Quthing. On his return from Quthing, he found that Aaron had absconded from the police custody in Mohale's Hoek.

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Aaron later surfaced in Bloemfontein where he was arrested. Pursuant to a further report made by Aaron on 28th August, 1984, the deponent proceeded to Mafeteng on 31st August, 1984. In the presence of the police in Mafeteng he found the goods referred to in annexures "C1" to "C22". They were then in the possession of the Respondent.

A certain Ally Zakhura, a director of the Respon­dent, who deposed to the answering affidavit averred that on 22nd August, 1984 a local business man, by the name of Raliopelo Maphathe, came to him in the company of one John Molise who was introduced as the driver of a vehicle belonging to the applicant company. John Molise was allegedly on his way to deliver the goods mentioned in annexures "C1" to "C22" to the various customers referred to in annexure "B" when the vehicle he was driving broke down on the outskirts of Mafeteng township.

On the request of John Molise, Ally Zakhura agreed, on behalf of the Respondent company, to buy the goods off the applicant's broken vehicle on conditions that John Molise would obtain authority from his employers in Bloemfontein and hand over the invoices as proof of purchase and delivery. John Molise there and then assured Ally Zakhura that he had already contacted his employers who had authorised him to dispose of the goods if he could and that the Respondent would be given the original invoices on which he (John Molise) would write "To Zakhura Brothers" and initial.

On behalf of the Respondent company, Ally Zakhura then tried to bargain for a lesser price as, in the normal purchase and sale transaction, the company would be entitled to a discount. At first John Molise agreed to R8,500 but later changed his mind and insisted on payment of R17,909.39 the amount authorised by his employers. He promised to negotiate a credit note for the Respondent company when he got back to Bloemfontein. Ally Zakhura then paid the amount of R17,909-39 to John Molise who in turn cancelled the figure R8,500, inserted R17,909-39 therefor and initialled the cancellation as reflected in annexure "C" - a note purporting to be an acknowledgement receipt signed by John Molise him­self.

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John Molise then left in a vehicle he had hired from the Respondent. Shortly thereafter he delivered the goods referred to in annexures "C1" to "C22" before leaving, presumably for Bloemfontein.

In the result Ally Zakhura's contention is that the Respondent company is the rightful owner of the goods, reflected in annexure "C1" to "C22", which are in its lawful possession. Consequently the Respondent prayed for the discharge of the rule with costs.

In as far as it is material the averment of Ally Zakhura was confirmed by Raliopelo Maphathe who deposed to a supporting affidavit in which he averred that on 22nd August, 1964 John Molise, alias Aaron, the driver of applicant's vehicle and an acquaintance of his informed him that his truck, full of goods described in annexure "C1" to "C22", had a break-down on the outskirts of Mafeteng. On his own requests John Molise was allowed to use Raliopelo Maphathe's telephone to contact his employers in Bloemfontein.

As John Molise was speaking in Afrikaans language which Raliopelo Maphathe did not understand he (Raliopelo Maphathe) could not Follow what he was saying over the telephone. However, when he was through with the telephone , John Molise asked him if he knew of any businessman in Mafeteng who would be interested in buying the goods described in annexures "C1" to "C22".Raliopelo Maphathe replied that he was not interested. He, however, took John Molise to the Respondent's place where he introduced him to Ally Zakhura with whom he negotiated the sale of the goods mentioned in annexure "C1" to C"C22".

The applicant denied knowledge of John Molise nor that the latter ever contacted him or his firm over the telephone as alleged by RaliopWo Maphathe. In the applicant's contention, the goods referred to in annexures "C1" to "C22" were not lawfully sold to the Respondent who was in their unlawful posses­sion. Wherefor applicant prayed for confirmation of the rule in terms of the notice of motion.

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There can be no doubt, from the affidavits, that in August, 1984, the applicant's vehicle was dispatched from Bloemfontein in the Republic of South Africa to make deliveries of goods to various customers in Lesotho. Although it was not one of the customers, the Respondent company received the goods which were admittedly in its possession. The question is whether or not the Respondent was in lawful possession of those goods. The Respondent company contends that it was in lawful possession of the goods a fact which is however, denied by the applicant.

The onus of proof clearly vests with the Respondent on the well known principle that he who avers bears the onus. In support of its contention, the Respondent company relies firstly on the averment of Raliopelo Maphathe that John Molise was authorised by the applicant to sell the goods which Ally Zakhura claimed to have bought on its behalf. In his supporting affidavit, Raliopelo Maphathe has, however, deposed that the alleged telephone conversation between John Molise and the applicant was in Afrikaans language which he did not understand. That being so, it stands to reason that Raliopelo Maphathe is not in a position to testify positively that the applicant authorised John Molise to sell the goods to the Respondent or anybody for that matter. Secondly, the Respondent relies on the allegation that the goods were sold to its representative, Ally Zakhura, by John Molise on behalf of the applicant. However, the applicant denies knowledge of John Molise who, according to John William Badenhost had no authority to sell the goods.

It is significant to note that John Molise filed no affidavit in support of the Respondent's allegation that he had sold the goods to Ally Zakhura Whatever John Molise is alleged to have done or said remains, therefore, hearsay and, in my view, of no evidential value.

It must be pointed out that annexure "C1" to "C22" show that the goods were invoiced to customers whose addresses in Lesotho are clearly written. if it were true that the Respondent was given the understanding that the applicant's vehicle was stranded with its consignment on the outskirts of Mafeteng township I fail to apprehend how a businessman in the position of Ally Zakhura

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could not have assisted by contacting either the invoicees or the applicant whose address and telephone number is also clearly reflected on the annexures. In my judgment, the applicant's driver Asron, Raliopelo Maphathe and Ally Zakhura have connived to steal the goods, the lawful property of the applicant in this case. The Respondent's contention that it was in lawful possession of the goods has, there-fore, no basis and I have no hesitation in rejecting it.

In the premises, I come to the conclusion that this application ought to succeed and I accordingly confirm the rule with costs.

B.K. MOLAI

JUDGE

29th October, 1987.

For Applicant Mr. Herley

For Respondent Mr. Viljoen.