HIGH COURT OF LESOTHO
matter of :
TRADING BLOEMFONTEIN(Pty)Ltd Plaintiff
STEEL ENGINEERING(Pty)Ltd 1st Defendant
GENERAL WORKS 2nd Defendant
MILOSAV 3rd Defendant
by the Hon. Mr. Justice M.L. Lehohla on the 5th day of February, 1992
above action was first conceived the plaintiff proceeded against the
1st defendant trading, according to the Summons as
then styled, as
T.T.General Works. But following an application for joinder it was
ordered that the 2nd and 3rd defendants be joined
and styled as they
now appear above.
instant application the plaintiff prays for an order for
Judgment in the amount of M67,515-10
thereon at the rate of 11% a tempore morae
of suit, and;
and\or alternative relief.
for M67,515-10 is said to be in respect of goods sold and delivered
to the 1st defendant, See paragraph 4 of the Plaintiff's
applications i.e. CIV\APN\103\90 and CIV\APN\248\89 two orders were
granted by consent, namely the application to rescind
obtained earlier by default and an application to interdict the
deputy Sheriff from attaching certain goods and locking
It was further agreed between the parties that costs in those
applications were to stand over pending the outcome
of the instant
argued for the plaintiff that it claims in terms of Rule 28 (summary
judgment) a sum of M67,515-10 being in respect of goods
delivered to the 1st defendant. See pages 29 and 36 of the paginated
record of proceedings. The amount is further reflected
on page 15
which is a statement of account showing this sum to be an outstanding
balance owed by the 2nd defendant T.T. General
argued that part payment in the amount of M15,000-00 was effected by
the 3rd defendant on behalf of the first. Reference
in this regard
was made to pages 21 to 23 reflecting
cheques drawn in favour of the plaintiff. Attention was drawn to the
fact that above the signature attached to "NM4"
on pages 21 and 22 appears the name Michael Steel Engineering,
was told that in an attempt to settle the account the 3rd defendant
on behalf of the 2nd defendant paid Ml5,000. See page
19 a deed of
cession and authority marked "NM2" where the body referring
to itself as T.T. General Maseru cedes to N.T.C.
plaintiff the title in respect of M15,000-00. Page 20 reflects
another deed of cession made by the 3rd defendant
Mutavdzic on behalf of the 1st defendant. Both these documents were
drawn in 1988. See pages 21 to 23. Counsel for
accordingly submitted that the 3rd defendant used these companies
i.e. defendants 1 and 2 for purposes of defrauding
or confusing the
plaintiff who would be in a quandary as to who to sue. The learned
counsel consequently gave this as the reason
for instituting the
action against all three defendants. He submitted that it was
important for the plaintiff to show that the
entry of appearance to
defend is solely for purposes of delay. In this way the plaintiff
would have at once gone over the hurdle
requiring that it should
establish that the defendants have no bona fide defence. He thus
submitted the defendants have no defence
to the claim by plaintiff.
It is trite that for the defendants to succeed they
that they did not enter appearance for delay. In fact it is not
necessary to allege that the defence is bona fide. Thus
imperative that the defence be outlined for the Court to see on its
own that the defence is bona fide.
plaintiff's counsel accordingly and in reference to page 24 the
answering affidavit; pointed out that nothing that can be gathered
from the facts shows any bona fide defence. On the contrary, so the
argument went, all these transactions were backed up by the
defendant. Further that nothing shows any denial of liability which
is strange in view of the fact that such liability is based
allegation of non-payment of the amount shown by the plaintiff to be
due and owing. Indeed Chambers vs Jonker 1952 (4) 635
states that the
"defendant should set out his defence in some detail in order to
prove it is bona fide",
the authority states
"It seems clear that it is not enough for a defendant simply to
allege that he has a bona fide defence to the plaintiff's
must allege the facts upon which he relies to establish his defence.
When this has been done it is for the Court to
decide whether such
facts, if proved, would in law constitute a defence to the
plaintiff's claim, and also whether they satisfy
the Court that the
defendant in alleging such facts is acting bona fide".
reacting to the onslaught Mr. Hlaoli submitted that this is not the
type of case where summary judgment should have been
on especially after a concession was made to the necessity to apply
contended that the plaintiff operating from a position of advantage
afforded it by having seen the answering affidavit of the
defendant in its opposition to the summary judgment applied for
joinder which joinder required the plaintiff to effectively
summons. In effect the plaintiff once having seen the 1st defendant's
answers trimmed its sails in accordance with the
Thus showing, so it was contended, the plaintiff realised that it
would not succeed under the conditions in which
the papers previously
was invited to take into account that parties joined subsequently to
the application for joinder could not reply for they
came in after
the answering affidavit by the 1st defendant had been furnished. It
was further argued that these two new defendants
are not able to file
their affidavits because they were only joined after the papers
against the 1st defendant had been filed.
Hlaoli argued that it would not be proper if summary judgment could
be insisted on in the face of the fact that even though
mentioned the new defendants directly or indirectly, these new
defendants were in fact not parties to the
preceding joinder. He submitted therefore that these two would need
to be given an opportunity to defend the action; for
if the summary
judgment were to be granted against them regardless, it would mean
that they would not have had an opportunity to
answer the case
against them in the application or action.
was accordingly invited to consider Rule 28 and see if it covers this
particular case. Learned Counsel thought it is doubtful
does, and accordingly submitted that it would be improper to proceed
by way of summary judgment as envisaged in Rule
28; for this case
qualifies neither under (a) requiring that it must be instituted on a
liquid document, nor under (b) requiring
that it be for liquidated
amount sounding in money.
Hlaoli pointed out that with regard to the 1st defendant it is clear
reading from annexures attached to the supporting affidavit
these invoices were referred to the 2nd defendant an independent
company which had credit facilities granted by the plaintiff.
annexures being invoices, so the argument went, kept by the plaintiff
show that the 1st defendant is the one owing the moneys
and not the
2nd defendant as alleged by the plaintiff. Thus it was asked why the
plaintiff should want to say the 1st defendant
who never ordered
goods, though summons
did and further had goods delivered to it, is a party for goods
delivered to a different person.
with the submission that the deeds of cession were drawn and cheques
signed on behalf of the 2nd defendant Mr. Hlaoli argued
these cannot suffice as proof that the 1st and 3rd defendants were
parties to a contract between the 2nd defendant and
the plaintiff. He
pointed out that the Certificates of Incorporation show that the
first two defendants were registered in 1986
and 1987 respectively;
each owning different licences and operating in different premises.
See pages 27 and 28.
out that the crucial point is that these 2 defendants were in
operation in 1988 Mr. Hlaoli in reply to a question posed
Court stated that if it is felt that the defendants took advantage of
their numbers to confuse and cheat the plaintiff as
suggested by the
plaintiff's counsel, that would be a question for evidence at trial.
pointed out that according to these documents the first cession was
subscribed to by the 2nd defendant which is a person owing
as it drew it in favour of the plaintiff. He pointed out that the
only common thing is that the 3rd defendant was the
manager also of
that company which drew the cession or on
behalf he drew the cession for an amount of M15,000-00.
Counsel pointed out that the 2nd cession was made by the 1st
defendant for M20,000 and singed by the 3rd defendant. He proceeded
to show that this would make a total of M35,000-00 suggesting that
the 3rd defendant is somehow involved to the tune of M35,000
amount said to be owing by him also along with the two other
defendants is in excess of M67,000 as reflected in the summons.
question posed was how would this Court make a judgment against the
3rd defendant in the amount of M67,000 and more; and on
would he be obligated thus?
argued that in relation to these two deeds of cession ex facie the
papers nothing connects these undertakings to a debt owed
plaintiff as borne out in the invoices or statements of account.
Thus, it was argued, there exists a danger that the Court
to assume that the invoices related to the debts owed to the
plaintiff even though that is not so. It should be borne
in mind that
the order that established the debt was made by the 2nd defendant and
not the 1st or 3rd defendant. There is no indication,
so it was
submitted, that these documents related to that.
regard to the cheques Mr. Hlaoli reminded the Court that it had been
suggested on the plaintiff's behalf that they related
to a debt owed
by the 2nd defendant per order, thus calling upon the Court to make
assumptions in that regard. Mr. Hlaoli urged
on the Court to resist
the temptation to deprive itself of the opportunity to hear evidence.
pointed out that it would appear that the amount reflected in the
cheque drawn in favour of the plaintiff by the 1st defendant
M15,000. Yet three cheques were drawn, and only one related to the
transaction between the plaintiff and the 1st defendant.
total foots up to M15,000 + M5,500 + M5,000 being M35,500.
Hlaoli pointed out that if the summary judgment were to be granted
against the 1st defendant on the basis that it ostensibly
M35,000 why should the 1st defendant be made to bear the brunt of
paying M67,000 in the light of the fact that its commitment
only to no more than M35,000? The learned Counsel stressed the
absurdity of making it seem proper to say because the 1st
attempted to pay the M35,000 it should be liable to pay the M67,000.
Counsel accordingly urged that the parties should be given an
opportunity to file their pleas and their evidence be
demurred at the plaintiff's resort to this short cut method which
betrays fear on the plaintiff's part to stand cross-examination,
even to establish its case. He pointed out that the amount involved
is huge and the application haphazard.
attention to matters which would require ventilation by oral
evidence. For instance that the plaintiff thought the 1st defendant
was trading as the 2nd defendant. Why? It must, the learned Counsel
submitted, show where it derived this from in the light of
that the 1st defendant had not come into the picture by way of
cheques. Instead at that time there was no question of
trading as the other. Thus the plaintiff should not be given the
opportunity of amending papers without being subjected
Mr. Mphalane conceded that it may be the case that no opportunity was
given to the new defendants but the fact remains
that they were
served with the application and notice in terms of Rule 10 and Court
order on 22-8-89 but they never filed any answering
ample chance was given to them, he said, but they decided to do
pointed out further that it is not true that this matter cannot fall
under Rule 28 on grounds that the sum claimed is
for it is liquidated.
pointed out that the 1st and 3rd defendants became co-debtors with
the 2nd defendant inasmuch as they undertook to pay a debt
the 2nd defendant. He went on to show that the 1st and 2nd defendants
are juristic persons on whose behalf the 3rd defendant
acted to the
extent that he confused the trading public.
view consideration of the proper procedures should be made before
resolving this matter.
Abdurahman's Estate vs Abdurahman 1956 (3) SA 295 at 297 it is said
"...... there is good reason why the plaintiff should not be
allowed to split up his action. The objective of the order....
avoid delay, and if it is once admitted that there must be a trial,
even if only on some of the claims there is no saving
Moreover, the option of such a course may result in costs being
fruitful to refer to our Rule 28(7)(b)(ii) saying :
"If on the hearing of the application for summary judgment it
appears that a defendant is entitled to defend as to part of
claim but not to the whole of such claim the Court may give leave to
defend to defendant as to part of the claim and enter
against him as to the balance of the claim, unless he shall have paid
295 in Abdurahman above van Winsen J says
"A plaintiff cannot avail himself of the procedure under Rule
22(1) of the Rules of the Cape Supreme Court to obtain summary
judgment on a part of his claim, viz, in respect of something less
than his whole cause of action and less than the full amount
which part he alleges to be liquidated".
Franco(Pty)Ltd vs Gordon 1956 (4) SA 482 at 483 Murray CJ referring
to the rule in question says :
"(It) is designed to enable plaintiff whose claim falls within
certain defined classes of claims to obtain judgment without
necessity of going to trial in spite of the fact that defendant has
intimated by entering appearance that he intends raising
By means of this procedure a defence of no substance can be disposed
of without putting plaintiff to the expense of
in Hugo at 484 quoted Abdurahman above where the Latter shows at 295
that the summary Judgment Rule :-
"embodies an extraordinary remedy and a litigant who wishes to
avail himself of the procedure therein prescribed must
himself squarely within the ambit of the Rule.
further Murray CJ says at 484 -
"......The plaintiff was refused summary judgment as to the
liquidated portion of the whole of his claim, despite his willingness
to restrict his application to that portion".
CIV\T\158\87 Kloppers Handel ( Pty)Ltd vs Lesotho Photo Labs and
Lighting (unreported) at 9 this Court said -
"I have already referred to our Rule 28(7)(b)(ii) on the point
in issue. It is on all fours with Rule 32(6) (b) (ii) of the
Rules of Court applying to South African Courts.
of the authorities cited in my Judgment has there been specific
reference to this particular Rule. Regard being had to the
the edition of the Uniform Rules I have consulted is of comparatively
more recent origin i.e. 1965 as opposed to the
cover cases which occurred in the 1950's I would take it then that
some of the matters covered in the authorities
cited no longer hold
or as stated in Art Printing Works Ltd vs Citizen (Private) Ltd 1957
(2) SA 95 at 97 :
'The question whether this requirement has been fulfilled must be
answered in reference to the circumstances of each case'
.......South African authorities.......indicate that summary judgment
should be refused once only a portion of the claim is admitted
otherwise the result becomes wasteful both from the point of view of
costs in that they become increased and of time in that
delay is not
avoided, I however consider that our Rule 28(7)(b)(ii) is based on
sound principles viz. as in all pleadings matters
which are admitted
bring pleadings to conclusion forthwith while those on which
there are disputes are the ones regarding
which there need be adduced
further evidence to enable the court to make a final decision
there has been a concession in any event that the 1st defendant has
no bona fide defence to part of the claim reflected in
to "NM6" amounting to a composite sum of M35,500, it is
ordered that summary judgment in that amount
only be entered against
it with costs.
and 3rd defendants are granted leave to enter their
to defend within 14 days and their defences within 14 days of their
entry of appearance to defend. Costs in respect of
this leg of the
matter to be decided during the determination of the case at a
subsequent hearing if that be the case or necessary.
Plaintiff: Mr. Mphalane
Defendants : Mr. Hlaoli
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. Pick 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. Fick 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
way and in this respect I respectfully refer.....to the 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
Mr. Buys 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
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 fact. I further respectfully
say that the applicant is trying, through documentation
possession, to claim an asset which does not belong to him, and I
respectfully say that it is a conspiracy between the Insolvent
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 :
Du Plooy\Insolvent Estate Tladi\D 7E Tractor Type Bulldozer.
for Mr. J.M. Du Plooy who has instructed us that he is the owner of
the above-mentioned bulldozer, which apparently was in
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.
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:
this vehicle will not be sold in execution.
this is released to our client who will remove it from its present
whereabouts when we have confirmation of its release from
enclose, herewith, a photocopy of the Instalment Sale Agreement
together with a copy of a letter addressed to our 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
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 :
"We thank you for your letter dated 26-3-87 and confirm that we
noted contents thereof as well as the contents of the agreement.
We further confirm that we spoke to your Mr. Harley
subsequent to your letter referred to above and that we assured you
that we would not proceed with execution of the bulldozer on
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.
The Trustee is, however, not prepared to release this bulldozer to
your client pending the outcome of certain investigations and
enquiries which are to be held on the 24th April 1987. The
information we have from the Insolvent and various sources clearly
indicates that your client is not the owner of the bulldozer and
until such time as this aspect has been clarified, the bulldozer
be considered as an asset in the estate of L.G. Tladi.
Would you kindly advise whether it is necessary for us to issue
subpoenas against your client to appear at the inquiry on the 24th
April 1987 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
unsuccessful. The vehicle, to my knowledge, is still in the
possession of the Insolvent, Mr. L.G. Tladi, as he has not
cooperating with his Trustee and he has been hiding the vehicle
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 vehicle on 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 :-
hourly or monthly rate in terms whereof the bulldozer was rented
out to the Insolvent;
how long the vehicle was rented; and
conditions surrounding the agreement: such things as an operator,
services, fuel, destruction and any such items as are
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. Fick 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 these proceedings'".
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 dislosed 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.
Applicant : Mr. Fick
Respondent: Mr. Matooane
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law