HIGH COURT OP LESOTHO
MOTOR COMPANY (PTY) LTD Applicant
by the Honourable Mr. Justice J.L. KHEOLA on the 27th day of March.
an application in terms of which the applicant approached this Court
Ex Parte for the return of its motor vehicle ( a combi)
lent to the respondent on the 3rd July, 1991.
are that on the 3rd July, 1991 the respondent brought to the
applicant's workshop his Mercedes Benz car with Reg. No.
general repairs. The applicant alleges that the respondent was lent a
combi as he was going to attend a funeral and did
not have transport.
He promised to bring the said vehicle back to the workshop on the
following Monday which was the 8th July,
1991. The respondent never
returned the vehicle.
common cause that while the respondent's car was in the custody of
the applicant it caught fire and was damaged. The applicant
that it repaired the car and informed the respondent accordingly. On
one occasion the respondent came to the applicant's
workshop and took
his car for a drive. When he came back he was completely satisfied
with the repairs done and wanted to pay by
cheque. The applicant's
employees refused to accept payment by cheque and demanded cash. The
respondent went away and never came
back to pay cash for his vehicle.
Letters were written to the respondent by the applicant's attorneys
but no response was received
from the respondent.
applicant alleges that it has made a proposal to the respondent that
he is free to collect his car and take it to somebody else
examine it and if there is anything wrong it can be repaired at the
expense of the applicant.
in question is a trade-in vehicle which has to be resold and its
continued use by the respondent will cause irreparable
harm to the
applicant as the vehicle depreciates from time to time. The applicant
alleges that the matter is extremely urgent.
20th December, 1991 the applicant obtained a rule nisi as a result of
which the combi was seized from the
and it is now in the custody of the deputy sheriff.
answering affidavit the respondent admits that the combi was in his
custody because it was given to him by the applicant
as a courtesy
car. He told the applicant that he had to fetch the remains of his
deceased grandfather from the Smithfield district,
but he did not use
the combi for that. The combi was to be used as a courtesy car by him
for hie family's daily use in and about
Maseru and not only for a
week-end. In fact, he did not use the combi for the trip to
Smithfield. The terms of the agreement were
that the combi is a
courtesy car for use by him until the necessary work to his car is
completed and he gets it back. He denies
the allegation that it was
to be returned on the 8th July, 1991.
argument in this matter was restricted to the issue of whether there
was urgency entitling the applicant to move the application
The parties agreed that if there Was no urgency the rule should be
discharged without going into the merits.
answering affidavit the respondent avers that the applicant has not
complied with the mandatory requirements of Rule 22 of
the High Court
Rules 1980 in setting out explicitly the circumstances which it avers
render the matter urgent, or the reasons why
it contends that it
could not obtain adequate
at a hearing in due course.
respondent avers that the matter is not urgent. He has been in
possession of the combi since July, 1991, and on applicant's
it waited from the 8th July until the end of the year before taking
steps to recover it. He avers that that long delay
indicates that the
applicant itself did not regard the matter as urgent or very serious
or important. Applicant was quite prepared
to wait for many months,
and then approach the Court Ex Parte on an urgent basis, completely
disregarding the arrangements between
the attorneys, and misleading
the Court by withholding the material facts.
(22) reads as follows:
urgent applications the court or a judge may dispense with the forms
and service provided for in these rules and may dispose
matter at such time and place and in such manner and in accordance
with such procedure as the court or judge may deem
any petition or affidavit filed in support of an urgent application,
the applicant shall set forth in detail the circumstances
avers render the application urgent and also the reasons why he
claims that he could not be afforded substantial relief
hearing in due course if the periods presented by this Rule were
urgent application must be accompanied by a certificate of an
advocate or attorney which sets out that he has considered
matter and that he bona fide believes it to be a matter for urgent
In C. of
A. (CIV) No.l8\1991 Khaketla v. Malahleha and others (unreported) at
pages 5-6 Ackermann, J.A. said:
"Audi alteram partem is a fundamental principle of procedural
justice. I do not propose burdening this judgment with an exposition
of the circumstances under which the rule may be departed from in
civil litigation. Apart from cases where:
or the Rules of Court sanction such a departure; or
relief sought does not affect any other party;
the rule should only be departed from in exceptional cases. One such
exceptional case, is where there is a reasonable likelihood
notice to the opposing party would enable him to defeat or render
nugatory the relief sought or precipitate the very harm
applicant is seeking to avert. (See in general, Herbstein and van
Winsen, The Civil Practice in the Superior Courts of
3rd ed. p. 59-60). The principle of audi alteram partem ought not to
be subverted, even when granting a rule nisi,
by ordering the rule
(or any part thereof) to operate as an interim order if such interim
order affects the rights of another party,
unless such interim order
can itself be justified by the exceptions above referred to."
question that one has to answer is, what made the matter so urgent
that the respondent could not be given notice of the application?
combi was given to the respondent by the applicant on the 3rd July,
1991. He was given free use of the combi and according
applicant it was
returned on the 8th July, 1991. The combi was not returned on that
day but the applicant took no immediate action to recover
vehicle. Negotiations went on until the 13th December, 1991 when the
applicant decided that the matter had become too urgent
instituted an Ex Parte application. Mr. Mpnalane, attorney for the
applicant, submitted that the vehicle depreciates in value
continuous use and that the danger which faces the owner is
depreciation. If the application was brought on notice, such
would precipitate the very harm i.e. danger of depreciation which the
application is trying to forestall.
I do not
see how a notice of only a few days could increase depreciation of
the vehicle which was used only in and about Maseru
all the time.
There is no suggestion that if notice was given the respondent would
have undertaken a very long journey to Botswana
or Zimbabwe. I do not
understand what had suddenly made the matter so urgent .because the
respondent had been in possession of
the combi for more than five
months and the applicant, through its lawyer, was busy negotiating
the return of the combi under suitable
I do not
agree with the submission that there were any circumstances that were
so exceptional that the audi alteram partem rule
had to be subverted.
This was a case in which the normal operation of the rules of this
Court had to be observed
the matter was not urgent. The respondent was entitled to a notice
and to answer in the usual way.
matter could not be urgent because on the 29th November, 1991 a
meeting was held which was attended by the respondent personally
his attorney, Mr. Koornhof, and Mr. Mpobole, applicant's attorney. A
certain agreement was reached and Mr. Mpobole undertook
instructions on the counter-proposal and to thereafter revert to Mr.
Koornhof and advise him of applicant's attitude, Mr.
Mpobole did not
report back to the respondent's attorney but his colleague decided to
launch an urgent application on Ex Parte
basis. Mr. Mpobole has
vanished into thin air.
convinced that the matter was not urgent and that the Rule Nisi ought
not to have been granted if the applicant had disclosed
result the rule is discharged with costs.
Applicant - Mr. Mphalane
Respondent - Mr. Edeling.
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