HIGH COURT OF LESOTHO
Application of :
DU PLOOY Applicant
N.O. AS TRUSTEE
INSOLVENT ESTATE L. TLADI Respondent
by the Hon. Mr. Justice M.L. Lehohla on the 4th day of February, 1992
May 1991 this Court granted condonation for late filing of replying
affidavits. The application for condonation had been
opposed by the
respondent. This was the 1st leg.
on merits constituting the second leg of the application was
regrettable that the Court has only at this late hour been able to
consider reasons for Judgment and put them together in
this form. I
must commend Mr. Fick for the handy heads of argument submitted and
the able manner in which he argued his case.
appears that on 18th February, 1988 the applicant launched his main
application (referred to above as the second leg of his application)
against the respondent in his official capacity as Trustee of the
Insolvent Estate of one Lefu Gilbert Tladi for the
of a certain Caterpillar D 7E Track-type Tractor (hereinafter
referred to as "the Bulldozer").
applicant has filed his affidavit and that of his attorney Mr. S.C.
Harley in support of his application. He is also relying
affidavit of the insolvent Mr. Tladi.
applicant claims that he is the owner of the bulldozer. He
substantiates his claim by annexing certain documents reflected at
page 16 of the record.
invoices showing that he bought the bulldozer. The particulars
reflected are the name of the buyer J.M, Du Plooy of 4
Ficksburg where the bulldozer was delivered on 12 March 1986. The
purchase prize is reflected as R20,000-00. The document
appears to have emanated from Barlow's (O.F.S,) Ltd Bloemfontein for
the account of Trust Bank of Africa
Limited 27 Voortrekker Street,
"B" is an Instalment sale agreement form reflecting a
transaction that took place on 12th March 1986 between
the Trust Bank
of Africa Limited, 27 Voortrekker Street, Ficksburg and one Jacobus
Michiel Du Plooy 4 Hill Street Ficksburg. The
transaction involved a
D7E Tractor-type Bulldozer with 75 Doser and Ripper. The price is
reflected as R20,000-00.
reflects a schedule of payments the upshot of which is zero balance
save for the negligible amount of R19-84 reflected on
the debit side
of the balance sheet. It appears that the applicant entered into a
sale agreement with the Trust Bank and as of
14th October 1986 he had
finished paying his debt to that Bank.
submitted by Mr. Pick for the applicant that it is on the above basis
that the applicant has approached this Court saying
he is the owner
of the bulldozer. The applicant in his founding affidavit has
traversed this field in great lengths and vehemence.
boggled at what he referred to as a totally unexpected line of attack
levelled at the applicant's case contained in the
answering affidavit. His submission crisply concretized the
applicant's bewilderment and consternation, in the sentence
"First without any substance whatsoever a statement is made that
the applicant is in fact a mere front for the insolvent.
See page 41
of the papers where a bold statement is made that this was a device
from an institution in S.A. i.e. the Trust Bank.
The applicant is
faced with a dilemma. He has made a well documented proof of the
purchase but the respondent says to him 'you
are just a front'".
page 41 the respondent Mr. Buys in his affidavit says:
"During my investigation of the affairs of the Insolvent, I
realised and found that he did various deals in this
in this respect I respectfully refer.....to
affidavit of Attorney Snyman annexed hereto, marked Annexure "SCB.1".
phrase "this way" appearing loc cit. refers to the
preceding paragraph at page 41 saying :
"I say that the applicant entered into an agreement with the
insolvent in terms whereof the applicant would purchase the bulldozer
in his name but that the Insolvent would be responsible for payment
of the instalments and that there was an understanding between
applicant and the Insolvent that the bulldozer, or an item that is
bought in this way, would stay the absolute property of
went further to say :
"I respectfully refer the Honourable Court(sic) that such
agreements are fraudulent agreements as the true facts are not
disclosed to the financing company and they are deliberately brought
under the impression that the item which is financed is in
bought by the South African citizen.
I respectfully wish to draw the Honourable Court's attention to the
fact that although the documents would show that the present
applicant is the owner of the bulldozer, this is in fact not the
honest and true situation, and it is merely a device used by the
Insolvent and the applicant to obtain finance from an institution in
........... I wish to repeat what I have stated above
in regard to the Instalment Sale Agreement and say again that
although it appears that the applicant was the purchaser, he was
merely acting as a front for the Insolvent. I respectfully say that a
document is not the ultimate proof of a real situation of
further respectfully say that the applicant is trying, through
documentation in his possession, to claim an asset which
belong to him, and I respectfully say that it is a conspiracy between
the Insolvent and the applicant to prevent me from
realising all the
assets in the Estate. This would be to the prejudice of creditors and
I respectfully say that I should take extreme
care in protecting the
interests of creditors."
Mr. Matooane's view that Annexure "D" a document written in
Afrikaans bearing the letter heads of the Trust
Bank dated 24th March
1986 and addressed to J.M. du Plooy has not been brought before Court
in terms of the Rules of Court as it
is not translated into any of
the official languages recognised by this Court. Regarding this
letter Mr. Buys deposes that
"this document does not take the matter any further and does not
give any further proof that the applicant is in fact the
owner of the
20 read against page 42 where reference is made to Annexure "D",
has had regard to correspondence extending from Annexures "E"
"E" is a letter written by Messrs Harley and Morris
addressed to Messrs Du Preez Liebetrau and Co. and earmarked
Buys' attention. It is dated 26th March 1987. It reads :
re: J.M. Du Plooy\Insolvent Estate Tladi\D 7E Tractor Type Bulldozer.
We act for Mr. J.M. Du Plooy who has instructed us that he is the
owner of the above-mentioned bulldozer, which apparently was
possession of Mr. Tladi whose estate has now been sequestrated. We
understand from our client that the Bulldozer will be
sold by public
auction in the very future.
We are further advised by our client that he has discussed this
matter with your Mr. Buys who evidently agreed to
this matter from the inventory of goods for sale. This Bulldozer
evidently, at the time of the sequestration of Tladi,
was in his
possession on loan from our client and we now respectfully request an
immediate confirmation of the following from yourselves:
1. That this vehicle will not be sold in execution.
2. That this is released to our client who will remove it from its
present whereabouts when we have confirmation of its,release
enclose, herewith, a photocopy of the Instalment
Agreement together with a copy of a letter addressed
client by Trust Bank dated 24th March 1986.
your responses as a matter of urgently(sic) preferably today in order
that our clients(sic) interests will not be prejudiced.
Harley & Morris
received on 26-3-87 by signed: Buys "
"F" is a reminder to the addressee Mr. Buys to respond to
Annexure "E" following an alleged telephonic
between Mr. Buys and the writers of this Annexure "F".
response and in terms of Annexure "G" dated 7-4-87 Messrs
Du Preez Liebetrau & Co. wrote to say :
thank you for your letter dated 26-3-87 and confirm that we noted
contents thereof as well as the contents of the agreement.
further confirm that we spoke to your Mr. Harley
to your letter referred to above and that we assured you that we
would not proceed with execution of the bulldozer on
the sale of
(sic) execution which was held on the 3rd April 1987. We can now
confirm that the bulldozer was not sold and that it
is still being
kept at the mine at Kao.
Trustee is, however, not prepared to release this bulldozer to your
client pending the outcome of certain investigations and
which are to be held on the 24th April 1987. The information we have
from the Insolvent and various sources clearly indicates
client is not the owner of the bulldozer and until such time as this
aspect has been clarified, the bulldozer will be
considered as an
asset in the estate of L.G. Tladi.
kindly advise whether it is necessary for us to issue subpoenas
against your client to appear at the inquiry on the 24th
and whether he would appear voluntarily.
Du Preez Liebetrau & Co. "
depicts Mr. Buys' attitude as at the date 7th April 1987. I am not
aware that the addressees took up any of the writers'
options set out
in the last paragraph of Annexure "G".
the case may be it appears Mr. Buys' attitude prevailed without
abating up to the time when he deposed to his opposing
18th March, 1988, and beyond.
reasons advanced by the applicant why Annexure "D" was not
brought before Court in terms of the Rules are most unsatisfactory.
It is irrelevant that the respondent is Afrikaans speaking.
the respondent has been so relentless in his attitude that he did not
only call in aid the support of Mr. Snyman an attorney
of this Court
who has sworn in affidavit that he had occasion to act on behalf of a
certain Mclachlan who had assisted Tladi (the
insolvent herein) to
buy a Nissan Safari Station Wagon from a bank in South Africa, the
reason being that Tladi was not able to
raise finance with South
African banks, but has strained to show that the bulldozer falling
under similar circumstances to the
Nissan does not belong to the
Snyman at page 50 of the record says :
"I communicated with the respondent...... on various
occasions to secure the release of the vehicle (i.e. the Nissan) to
me but was unsuccessful. The vehicle, to my knowledge, is still
the possession of the Insolvent, Mr. L.G. Tladi, as he has not been
cooperating with his Trustee and he has been hiding
from the Trustee. My client had to pay the outstanding amount on the
hire-purchase agreement to the bank from his own
funds and in fact
was fortunate to be reimbursed by the Insolvent".
significant that the applicant relies on Annexure "B"
attached to the founding papers but remains silent to the
the respondent that the copy of the sale agreement given to the
respondent in an attempt to release the bulldozer is
2" which does not bear the stamp of cancellation borne by
respondent attached importance to the fact that the stamp
Annexure "B" is dated 26 November 1986 and went further as
"....... the Estate of L.G. Tladi was placed under
provisional sequestration on or about 4th July 1986. In terms of the
applicant's papers, he could only have become owner of the
26th November 1986. At the stage when the Estate was sequestrated the
Trust Bank of Africa was still the owner of the
bulldozer and was
therefore entitled to claim the vehicle from any party in whose
possession it was found"
significant that in his replying affidavit the applicant chose to
gloss over this important charge and contented himself with
a mere lick and promise.
reply the applicant seems to have avoided the charge that he has
nowhere disclosed to the Court the "exact details of
agreement he struck with the insolvent" See page 46.
result the question remains unanswered as to the specific terms on
which the agreement was based regard being had to the
fact that the
item of property said to have been hired out to the Insolvent was
very expensive and valuable.
details or terms, despite the respondent's reasonable concern that
their absence has the effect of enervating the applicant's
mind if there was such agreement it would not be asking
to seek to know :-
(a) the hourly or monthly rate in terms whereof the bulldozer was
rented out to the Insolvent;
(b) for how long the vehicle was rented; and
(c) the conditions surrounding the agreement: such things as an
operator, services, fuel, destruction and any such items as are
normal relating to this machine when under hire agreements.
avers that it should be common knowledge that the plant hire business
is a very complicated business and the terms of such
are specialised. I agree and would go further to say absence of such
details would cast indeed a long shadow on
the allegation that in
fact such an agreement was ever in existence.
swore at page 47 that he refused to release the bulldozer to the
applicant. He says he informed the applicant that this
according to the information received from the insolvent himself
belonged to the insolvent. Annexure "SCB 3"
being notes the deponent jotted down shortly after his appointment as
Trustee and during his discussion with the Insolvent.
sought in argument to show that the Insolvent could not have
understood the technical and legal meaning of ownership.
reading of the notes give no basis for a possibility that even though
he is a layman the Insolvent didn't understand that
when he said the
bulldozer belonged to him he meant he was not the owner; and that
instead when he said so he thereby meant the
applicant was the owner.
humble opinion Mr. Pick seems to have underrated the common sense
that the insolvent should ordinarily be in possession of,
even if he
is denuded of every material possession.
128 the applicant makes a sabre thrust at the respondent's attitude
which he describes as "peculiar, irrational and
At page 131 he questions the applicant's bona fides. However this
kind of attack regarding the respondent rings
a very familiar note as
was the case in CIV\APNs\211 and 212\86 Jack Yudelman Lesotho
Wholesalers(Pty)Ltd vs L.G. Tlali and Jack
Wholesalers(Pty)Ltd vs Leful Wholesalers (unreported) at page 5 where
this Court said of Tlali whose evidence
the applicant wishes me to
rely on :
"It casts a long shadow on respondent's intentions that the
incorporation of his two companies was effected just a day after
default and provisional sentence judgments were obtained against him
i.e. 28th April 1986"
the other hand at page 22 what was said of the respondent is :
"Indeed it would be out of character for Mr.Buys to behave
otherwise than honourably for it was through him that a certain
Rottanburg was brought to book and struck off from the Johannesburg
Roll of Advocates when he tried to persuade Mr. Buys to
join with him
in a dishonourable scheme to defraud their
respective clients...... I have not been able to
find any sinister motive readable from Mr. Buys' discharge of duty in
respect of the instant application I feel Mr. Buys would be
jeopardising his integrity if he went along with the applicant in
face of the evidence in his possession showing that the bulldozer
does not belong to the applicant,
sought to highlight the absurdity of any suggestion that the Trust
Bank was involved in an underhand scheme. However sight
should not be
lost of the fact that an invoice or a receipt issued in the name of a
purchaser does not necessarily make the purchaser
the owner of the
property bought. I say so because the money used may be someone
else's who authorised the purchaser to do the
purchasing for him.
Moreover any such conclusion as Mr.Fick wishes to be reached would
not follow because Mr. Buys clearly said
these agreements are
"as the true facts are not disposed to the financing company and
they are deliberately brought under the impression that the
which is financed is in fact bought by the South African citizen"
Buys has excluded financing institutions from the category of
papers before me there is no proof of instalment payments to back up
the applicant's allegations that he effected the purchase
bulldozer by instalments.
application is dismissed with costs.
J U D G E
Applicant : Mr. Fic
Respondent: Mr. Matooane
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