IN THE HIGH COURT OF LESOTHO
In the Matter of :
PAULOSI MOSALA SELEKE
Respondent REASONS FOR JUDGMENT
Filed by the Hon. Acting Mr.
Justice J.L. Kheola on the 10th day of January, 1985.
After hearing Mr. Mesoabi
for the appellant and Mr. Ramodibedi for the respondent, I
dismissed the appeal with costs. These are now my reasons for that
On the 17th day of March, 1983,
the present appellant made an application (Ex parte) before the
Subordinate Court at Maseru for an
order that .
1. A Rule Nisi be issued
returnable on a dateto be determined by this Honourable
Courtcalling upon the Respondent to show cause why:
The Respondent shall not be
orderedOmnia Ante to return to the Applicanta Massey
Ferguson 245 Tractor withEngine No. 152EA39586 DL and Chassis
The Respondent shall not be
restrainedfrom alienating and selling or otherwisedestroying
the said tractor mentioned in(a) above.
2. That prayer 1(a) and (b)
above should operate as
an Interim Interdict having
immediate effect pending the finalization of this Application and
action which Applicant has instituted
concerning the aforesaid
The application was granted as
prayed and made returnable on the 11th April, 1983. In his founding
affidavit, the appellant states
that in August 1982 he and the
Respondent entered into an oral agreement in terms of which the
appellant was to give nine (9) oxen
to the respondent so
that the respondent could buy on
behalf of the appellant the tractor described above. In September the
oxen were duly delivered and
were valued at R5,925-00. Further
payments were made in November and December, 1982. The tractor had
been delivered to the appellant
in September, 1982. He used it until
the 4th January, 1983 when the respondent despoiled him.
In his opposing affidavit, the
respondent denies that the oxen were given to him as the purchase
price of the tractor. He bought
4 oxen from the appellant at an
auction he had organized at Thabana-li-'mele. He personally bought
the said tractor for himself
from Lesotho Tractors and Machinery
Company and it was fully paid for through Westbank who acted as his
financiers. He gave the
tractor to the appellant so that he could
plough for people in his area and it was agreed that he would keep 5%
of the takings. The
respondent avers that the appellant failed to pay
the proceeds to him and that was why he finally decided to retrieve
The appellant released the tractor and it was driven to
Maseru by his own son.
On the return day, i.e. the 11th
April, 1983, there was no appearance for the respondent and the
matter was postponed sine die. On the 22nd July, 1983, both
parties appeared and by consent the matter was again postponed sine
die. The matter was finally set down for hearing on the 19th
August, 1983. On that day the appellant and his attorney failed to
and the magistrate dismissed the application with costs. The
appellant applied for a rescission of judgment. The application was
dismissed on the ground that the default was wilful. In his founding
affidavit, the appellant avers that on the 19th August, 1983
matter was to come before the court he was informed by the clerk of
court that the matter had been set down before Mr. Matete
who was not
at that time present at the court as he had gone somewhere on urgent
official business. He and the respondent together
with Mr. Masoabi
agreed to phone each other later on when Mr. Matete arrived. They
also agreed that all the parties should meet at 2.00 p.m. They
left the magistrate's court knowing fully well that the matter would
be heard in
3/ the afternoon
the afternoon. He was,
therefore, surprised at 2.00 p.m. when he arrived at the court to
find that the respondent, and before a different
magistrate for that
matter, had obtained a default judgment.
The respondent denies that there
was any agreement by the parties to meet at 2.00 p.m. He avers that
he arrived at the court at 9.30
a.m. and the appellant together with
his attorney dodged him until 12.30 p.m. when he moved the court to
dismiss the application.
In his judgment, the learned
magistrate states that when the matter came before him, he personally
contacted Mr. Masoabi by telephone and warned him that the
matter in which he was appearing was about to be heard. Mr.
Masoabi did not come and the application was dismissed. It is
common cause that the learned magistrate did telephone Mr.
Masoabi but the latter says the former merely told him that he
was postponing the case sine die. I do not believe that the
learned magistrate would deceive the attorney of record that he was
postponing the case sine die and immediately after saying that
grant a default judgment to the respondent. The story appears to me
to be highly improbable. If
it were true, why did the appellant and
his attorney come to court at 2.00 p.m. knowing fully well that the
case had been postponedsine die.
Another fatal defect in the
application is that the appellant failed to obtain an affidavit from
the clerk of court who informed the
parties that Mr. Matete was not
available and before whom they apparently agreed that they would come
back at 2.00 p.m. Such an
affidavit would have confirmed the story
about the agreement to meet at 2.00 p.m. However, even if there could
be proof that the
parties agreed to meet at 2.00 p.m. I am of the
view that Mr. Masoabi was bound to come to court as soon as
the learned magistrate te]ephoned him. His failure to come to court
amounts to wilful default.
The appellant seems to be under the wrong
impression that once the case has been set down before one magistrate
no other magistrate
may hear the case.
4/ The fact is
The fact is that any other
magistrate may hear the case if the magistrate before whom the case
was set is not available.
When the appeal came before me,
I asked both counsels whether the respondent still had (the tractor
in his possession or not.
I took this step because it is now
over one year and seven months since these proceedings started at the
magistrate's court and mandament van spolie cannot work where
the spoliator is no longer in possession of the goods and it would be
impossible for him to carry out the order
of the court (Malau v.
Dippenaar, 1969 (2) S.A. 59(0)). The onus is on the spoliator to
show that it will be impossible for him to restore possession to the
The counsel were very honest to tell me that the tractor
had been attached and removed by the messenger of the subordinate
in the execution of a writ in another matter. I do not think
that it would be possible for the respondent to restore possession
the tractor to applicant because it is now in the possession of abona fide third person. To complicate matters further, the
registration certificate, invoices of the company from which the
bought the tractor and the temporary permit are issued in
the name of the respondent, so that the messenger of court bona
fide believed that the respondent was the owner of the tractor.
It seems to me that the
appellant realized some time ago that the dispute had at some stage
moved from the realm of possessory remdies
to that of a vindicatory
action and sued the respondent in CIV/T/416/83 on the 24th August,
1983 and claimed damages in the alternative
(See Jivan v.National Housing Commission 1977 (3) S.A. 890 (W.L.D.)).
For the reasons I have stated
above, I agreed with the trial court that the default was wilful and
dismissed the appeal with costs.
J.L. KHEOLA ACTING JUDGE.
10th January, 1985.
For Appellant : Mr. Masoabi,
For Respondent : Mr. Ramodibeli.
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