HIGH COURT OF LESOTHO
VEHICLE TRADING AND FINANCE Applicant
RHAKISO MASOABI lst Respondent
MASOABI 2nd Respondent
COMMISSIONER OF POLICE 3rd Respondent
by the Honourable Mr. Justice J.L. Kheola on the 18th day of October.
an application in which the applicant applies that the respondents
show cause why they should not be committed to prison
for contempt of
Court in that they failed to comply with orders issued by Che Court
in CIV\APN\430\92 and CIV\APN\429\92.
in CIV\APN\430\92 was in the following terms:
with the forms and provisions of the Rules of Court and dealing with
the matter as a matter of urgency as is contemplated
in terms of
Rule 8 (22) of the Rules of Court.
a rule nisi do issue calling upon the respondent to show cause on a
date to be determined by the above Honourable Court why
an Order in
the following terms should not be issued;
2.1 Directing that the respondent delivers to the applicant (which is
authorised to take possession of) all passenger buses belonging
respondent ("the vehicles").
2.2 Failing the return of the said vehicles to the applicant
forthwith, the sheriff or his deputy be authorised and directed to
take possession of the vehicles wherever same may be found and to
deliver same to the applicant.
2.3 Declaring the applicant to be entitled to exercise the rights
afforded the applicant in Clause 15 of the Notarial General Covering
Bond No.23 252. annexure "C"
to the applicant's founding affidavit.
2.4 Directing that the respondent pay the costs of this application
on the scale as between attorney and own client.
pending the return date herein, the Order in terms of 2.1 and 2.2.
operate as an interim Order with immediate effect,
further or alternative relief.
in CIV\APN\429\92 was in the following terms:
with the forms and provisions of the Rules of Court and dealing with
the matter as a matter of urgency as is contemplated
in terms of
Rule 8 (22) of the Rules of Court;
2.1 Declaring the instalment Sale Agreement marked "C" to
"G" annexed to the applicant's founding affidavit,
2.2 Directing the Respondent to deliver to the applicant the
following motor vehicles:
2.2.1 1990 AAD Leyland 17\280 Bus with engines number
SC021775SA0224270 and chassis number 900039;
2.2.2 1990 Leyland 17\280 Bus with engine number SA0221637 and
chassis number 890066;
2.2.3 1990 MAN 1628 Bus with engine number SC050702997T and chassis
2.2.4 1989 Leyland 17\28\ Bus with engine number SC02177SA097725 and
chassis number K12-0216-890011;
2.2.5 1990 MAN 16201 Bus with engine number SC01069SA021395T and
chassis number 32106460646; ("the vehicles");
2.3 Failing the return of the vehicles to the applicant forthwith,
the sheriff or his deputy be authorised and directed to take
possession of the vehicles wherever same may be found and to deliver
same to the applicant.
2.4 That the respondent pay the costs of this application on the
scale as between attorney and client, alternatively directing
the costs of this application be costs in the action or application
to be instituted for the determination of the relief set
out in 2,1,
2.2 and 2.3 above;
2.5 Alternatively to 2.2. and 2.4 above and pending the outcome of
this application, alternatively proceedings for the determination
the applicant's right to the return of the vehicles, the, sheriff or
his deputy attach and remove the vehicles wherever same
may be found
and deliver the vehicles to the Applicant to hold in safe custody,
alternatively, to hold the vehicles in his possession
2.6 Granting the Applicant further or alternative relief.
pending the return day herein, the Order in terms of 2.2 and 2.3
2.5 operate as an interim Order with immediate effect;
8th February, 1993 the first respondent was brought
this Court to show cause why he could not be committed to prison for
contempt of court. The matter was argued before me and
I came to the
conclusion that the applicant had failed to prove that the respondent
had been properly served with the orders. The
rule was discharged
original files are missing I do not recall exactly what transpired.
It is alleged in the present application that I held
that the service
was not proper because the chief of the village in which the first
respondent lives was not present when the deputy
sheriff attempted to
effect service upon the first respondent. I think this is a complete
distortion or a misunderstanding of what
I said. How could I say the
deputy sheriff of this Court cannot do his job in the absence of the
chief of the area concerned?
that what I said or intended to say was that where the deputy sheriff
is dealing with a difficult judgment debtor he should
chief of the area to assist him in the execution of the orders of
court. This is only for purposes of evidence when
the judgment debtor
is charged with contempt of court. If the deputy sheriff had the
impression that I meant that in all cases
and at all times he must
seek the assistance of a chief, that is wrong.
written judgment in that case which is CIV\APN\37\93 Dorbyl Vehicle
Trading & Finance (Pty) Ltd. v. Vincent Masoabi and
delivered on the 10th February, 1993 there is no mention of a chief.
The application was dismissed on the ground that
the applicant wanted
to commit the first respondent before he had been given a chance to
be heard. I relied on 'Masechele Khaketla
v. 'Mamohau Malahleha &
others, C. of A. (CIV) No. 18\1991, 30\1991 and 31\1991 (unreported).
second reason why the application was dismissed was that there was a
dispute of fact which could not be resolved on papers.
sheriff deposed that he served the respondent on a certain date. On
the other hand the first respondent said that on
that date he was not
at his home but at a certain place in the mountains.
present applications the deputy sheriff avers in paragraph 9 of his
supporting affidavit that on the 17th March, 1993 he
first respondent's house from a different direction and found the
first respondent at home. He served him with the
orders. The first
respondent refused to comply with the orders of court on the ground
that he would not sign the orders in the
absence of the chief and
that he could not comply with the orders as the buses which the
deputy sheriff was looking for were not
at his place but were in
different routes delivering
He further said that other vehicles could not be taken to court as
they were mechanically defective.
deputy sheriff avers that on some occasions he informed the first and
second respondent that he would obtain the services of
and would tow the vehicles to the High Court. He was informed that
should he do so, there would be big problems for
alleges that on one occasion he followed the vehicles referred to in
the Court order and when he confronted the drivers to hand
vehicles in terms of the Order they became very violent and informed
him that they would not comply, as they had instructions
first respondent not to hand over the buses to anyone notwithstanding
any Court Orders.
applicant has attached at return of service at page 22 of the record
of these proceedings which indicates that service of the
CIV\APN\430\92 was effected upon the wife of the first respondent.
The return of service is dated the 30th March, 1993.
respondent has not filed any answering affidavit. The averments made
by the deputy sheriff remain unchallenged concerning
second respondent has denied that he ever refused to comply with the
Court Orders in question. He alleges that whenever the
found him at the home of the respondent he only asked him about the
whereabouts of the first respondent. He further
alleges that the
matter is res judicata because in CIV\APN\37\93 the question of
contempt of court was finalised by this Court,
The application for
committal was refused with costs to the first respondent.
the view that the question of res judicata does not arise because the
present applicant only relates to what took place after
application was dismissed. It is clear that after that the deputy
sheriff made other attempts to serve the first respondent
particularly on the 17th March, 1993.
Consolidated Fish Distributors (Pty)Ltd. v. Zive and others, 1968 (2)
S.A. 517 at p.522 Baker, A.J. said:
"An applicant for committal needs to show -
an order was granted against respondent; and
respondent was either served with the order (Godefroy v. The State
(1890) 3 S.A.R. 113; Eaton Robins & Co. v. Voges,
140; Resident Magistrate; Humansdory v. Kosana and Another, 1945
E.D.L. 41); or was informed of the grant of
the order against him and could have no reasonable ground for
disbelieving the information (Burgers v. Fraser, 1907 T.S. 318;
Scholtz Estate v. Carroll 23 S.C. 430; Botha v, Dreyer, I.E.D.C, 74;
In re Cousins and Another 1911 C.P.D. 463 at pp 470-471; In
Corinbatore, 18 N.L.R. 179; and
respondent has either disobeyed it or has neglected to comply with
it. Once it is shown that an order was granted and that
has disobeyed or neglected to comply with it, wilfulness will
normally be inferred (R.v. Mcunu, 1928 N.P.D. 237: R.v.
1943 T.P.D.. 65 at p. 70; Wickee v. Wickee, 1929 W.L.D. 145 at p.
148) and the onus will then be on respondent to
rebut the inference
of wilfulness on a balance of probabilities (Watereton v.Waterston,
1946 W.L.D. 334; R.v. Van der Merve,
1952 (1) S.A. 647 (0) AT P.
650; JACOBS V. JACOBS, 1911 T.P.D. 768 at pp. 770-771; Wickee v.
Wickee, supra; Reed v. Reed 1911
E.D.L. 157; see also Traut v. Rex
1931 S.W.A. 29 at p. 32)."
present application it has been shown that the Orders in both
applications were granted against the first respondent only.
was ever granted against the second respondent.
respondent was not only served with the orders but had earlier become
aware of such orders on the 8th and the 10th February,
1993 when the
first contempt proceedings in CIV\APN\37\93 were argued before court
and judgment was announced. He filed opposing
affidavits in both
CIV\APN\429\92 and CIV\APN\430\92 as well as in CIV\APN\37\93. There
can be no doubt that he has actual knowledge
of the Orders of this
Court but he is wilfully and deliberately refusing to comply with
means that the first respondent must deliver to the applicant certain
passenger buses described in detail in CIV\APN\429\92.
were allegedly sold to the first respondent by the applicant. It is
alleged by the applicant that the first respondent
is not honouring
the terms of the instalment sale agreement between himself and the
applicant. The order means that the vehicles
were to be repossessed.
question of whether the respondent's conduct amounts to disobedience
of the order or not, must be answered in the affirmative.
flatly refused to release the vehicles and hand them over to the
deputy sheriff. He has instructed his
refuse to release these buses to the deputy sheriff. He warned the
deputy sheriff that if he brought a truck to tow some
of the vehicles
which are mechanically defective, something very unpleasant would
happen to him. The first respondent's conduct
is an outright defiance
of the order of the Court.
question whether the first respondent's conduct is wilful or not,
must be answered in the affirmative. He openly refuses
with the deputy sheriff to hand over these vehicles to him. He has
instructed his employees not to cooperate with
the deputy sheriff and
to refuse to release the vehicles to him.
27th September, 1993 when this matter was postponed to the 12th
October, 1993 Mr. Phafane, counsel for the respondents, was
But on the 12th October, 1993 when the matter was argued there was no
appearance for the respondents. As I have already
indicated above the
first respondent has not filed any answering affidavit. The
allegations made by the deputy sheriff stand unchallenged.
words, the onus which was shifted upon the first respondent has not
attorney for the applicant, submitted that the applicant's onus was
to prove that an Order was granted ordering
directing the respondents to do something - ad factum Praestandum.
This has been found to be "the most solemn and authoritative
form of order" which a Court can make and where it is vital that
a person who has been ordered to do something obeys such
Verkouteren v. Savage 1918 T.P.D. 62 at pp. 67-68.
applicant has discharged such onus.
been proved that the first respondent was served with the Order but
he refused to sign it on the ground that his chief had
to be present
when the service was effected. On another occasion service was
effected on his wife. To me that seems to be proper
Furthermore the first respondent is aware of the existence of the
Order because he has filed opposing affidavits in both
applications. He was in Court during the first contempt proceedings
which were dismissed.
all these things the first respondent is continuing to disobey or
neglect to comply with the order.
come to the conclusion that the applicant has proved wilfulness on
the part of the first respondent.
no case against the second respondent because the
not granted against him. The application against him is dismissed
the first respondent I have formed the opinion that the applicant has
proved that he (the first respondent) has committed
result the first respondent is committed to prison for four (4)
months for contempt of court.
respondent is ordered to arrest the first respondent whenever he
shall be found and commit him to prison in accordance
respondent shall pay costs on attorney and client scale.
Applicant - Mr. Buys
Respondents - Mr Phafane.
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