CIV/APN/203/87 IN THE HIGH COURT OF
In the Application of :
J.R. BOTHMA Applicant
KUNI SEKHOANE Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 30th day of September, 1987
On the 28th June, 1987 the Applicant moved an urgent
application in which he sought an order in the following terms:
"1. That the Deputy Sheriff of the above
Court be directed and empowered to attach, remove and
take into his possession one 1984 MAN Bus, 16-200 FOC, with engine
and chasis number 32210671067 and with present
registration number AA 546, from the Respondent or any other
party in whose possession
the said vehicle might be found.
2. That the Respondent be called upon to show cause,
ona day to be determined by the above Honourable Court,why
the vehicle referred to in paragraph 1 above shouldnot be handed
over to the Applicant and why he shouldnot be ordered to pay the
costs of this application
the event of opposition thereof.
That paragraph 2 above operate as an Interim Order, and
Further and/or alternative relief."
A rule nisi was issued and made returnable on the 20th
July, 1987, The respondent anticipated the return day to the 15th
On the anticipated return day the parties agreed that the
deputy Sheriff should not remove the bus from the respon-dent and the
undertook not to remove the vehicle out of the district of
Maseru. The matter was postponed to the 27th July, 1987. On that day
rule was extended to the 23rd September, 1987 . when the matter
was argued before me. I reserved my judgment to 30th September, 1987.
The facts of the case are simple and straightforward. On
the 2nd March, 1984 the applicant entered into a hire-purchase
with Standard Credit Corporation in which the latter sold a
bus to the applicant. It is common cause that that bus is the same
the applicant is now seeking to repossess from the respondent.
The applicant paid a deposit of R27,000 leaving a balance of
R77,652 to be paid in thirty-five (35) monthly instalments of R2.157.
It was a specific term of the agreement that the ownership
vehicle would remain vested in the seller (Standard Credit
Corporation) until the applicant had fully paid for the bus.
However, in breach of the terms of his contract with the
seller, on the 26th May, 1984 the applicant entered into a
agreement with one Sebatana Russell in which he
purported to sell the same bus to the said Russell. The preamble of
shows that the applicant had entered into the contract
of sale with the seller with the sole intention of helping Russell
not have sufficient funds. It shows that the deposit of
R27,000 came from Russell and that he was to pay R5,000 monthly
to the applicant until full payment was made. It was a
specific term of the agreement that ownership of the bus would remain
in the applicant until the full price had been paid.
In January, 1987 and allegedly in breach of the terms of
his contract with the applicant, Russell sold the bus to a Durban
called Buscraft. During the same month Buscraft in turn
sold the bus to the present respondent for R55,000. He paid a deposit
R10,000 and is paying a monthly instalment of R1,250. The purchase
was financed by W.M.N. Investments (Lesotho) (Pty) Ltd.
While the bus was still changing hands a series of
appli-tions was being made in this Court in an attempt to repossess
The first one is CIV/T/700/85 made on the 24th July,
1986 in which the present applicant cited S. Russell as the
respondent. For some
unknown reason that application was not pursued
to finality and yet at that time the vehicle ought to have been in
On the 17th November in CIV/APN/359/86 Standard Credit
Corporation cited the present applicant as the first respondent and
as the 2nd respondent in an attempt to repossess the
vehicle. That application has not been finalised.
In the meantime on 2nd June, 1987 Standard Credit
Corporation and the present applicant purported to enter into a deed
whereby the parties agreed that the applicant (cessionary)
would pay the amount of R19,121-32 in full and final settlment of the
agreement between the parties. The cedent received this amount in
full and final settlement, and the cedent thereby ceded, out and
in rem suam, all its rights, title and interest to a certain credit
sale agreement to the cessionary who accepted the cession.
It will be necessary to consider the validity of the
contract entered into by the present applicant and Sebatana Russell.
is dated the 26th May, 1984 and the applicant purported
to sell the aforesaid bus to Russell under a hire-purchase agreement.
is common cause that at that time the applicant had not paid
Standard Credit Corporation in full and that the ownership in the bus
still remained vested in Standard Credit Corporation. In terms of
article 4 of the hire-purchase agreement the applicant was prohibited
from alienating or encumbering the goods sold to him until he had
paid the purchase price in full. The applicant failed to observe
term of the agreement and purported to sell the vehicle to Russell. I
have come to the conclusion that such agreement was null
was also illegal and in contravention of the provisions of the South
African Statute which regulates hire-purchase agreements.
applicant is asking this Court to enforce the terms of a contract
that was null and void ab initio. This Court cannot do that.
attempt is being made. to rely on a deed of cession entered into by
the applicant and Standard Credit Corporation on the 2nd June,
i.e. three years after the applicant and Sebatana Russell entered
into a contract that was null and void ab initio. In the case
Estates Ltd v. Wareham, 1950 (i) S.A. 125 the Court had to interpret
Section 65 of the Town and Country Planning Act of 1945
provided that "no person shall sell or lease or offer for sale
or lease any portion of a property or enter into any contract
arrangement or do any act which may lead to the subsequent
sub-division of property unless the permission of the Minister has
been obtained for the sub-division of such property." (my
underlining). The parties had entered into a contract of sale of a
piece of land in 1946 and obtained the permission of the Minister in
1947. . The buyer then sought an order for specific performance
at page 128 Lewis, A.C.J. said:
/"The fact that.....
"The fact that the Miniter's approval to the
subdivision was subsequently given before the plaintiff sought
to enforce the
contract is immaterial. It is not alleged that after
obtaining the Minister's approval a new contract was entered into. In
Dairy v. Sim case which dealt with an illegal sale of cattle
on a Sunday, it was sought to rely on ratification of the sale made
on the following Thursday. Innes, C.J., observed at p. 170: there can
bet no ratification of a contract which is prohibited and made
illegal by statute. In the case of Spiers v. Hunt (1908 (I), K.B.
720) it was held that an illegal promise by a married man to marry
woman made during the lifetime of his wife did not give the right to
bring an action for breach of promise against him, even after
death of his wife. In that case PHILLIMORE, J. quoted with approval
the ' following dictum:
"It is wholly fallacious to suppose that a contract
is not illegitimate if the act agreed to be done would not be illegal
the time of its contemplated performance. Such is not the law. A
contract is totally void if, when it is made, it is opposed to
or public policy."
The applicant deliberately entered into a contract with
S. Russell knowing very well that under the terms of the contract
him and Standard Credit Corporation he was prohibited from
alienating or encumbering the property before he had paid for it in
The contract was null and void and cannot be ratified by a
subsequent deed of cession.
The bus has changed so many hands that it would be
totally unfair to deprive the present respondent of the possession of
He has bought the bus from an innocent third party who knew
nothing about the nullity of the contract between Russell and the
The applicant fraudulently parted with the bus and is
estopped from claiming repossession of the bus from innocent third
If the application were made by Standard Credit Corporation
it would be a different matter because they never purported to sell
vehicle to Russell, they (Standard Credit Corporation) would be
entitled to repossess the vehicle-from any person to whom the
purported to sell it. They would
also be entitled to recover it from any innocent third
parties who did not know that the applicant had no authority to
But the applicant is estopped from claiming the vehicle
from any person who derives his title from Russell to whom he
unlawfully and fraudulently purported to sell the
vehicle. On this ground alone the rule must be discharged.
The second ground why the rule has to be discharged is
that there is a serious dispute of fact which cannot be determined on
That issue is to be settled in CIV/T/700/85 which is still
pending before this Court. Sebatana Russell is not a party to the
application but has filed an affidavit showing that he has
paid for the bus in full.
In the result the rule is discharged with costs.
30th September, 1987.
For the Applicant -Mr. S.C. BUYS For the
Respondent - Mr. G.G. NTHETHE
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