IN THE HIGH COURT OF LESOTHO In the
Application of :
DORBLY FINANCE (Pty) Ltd Applicant and
ABEL SELLO MULATI Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice B.K. Molai on the 11th
day of July, 1989.
On 6th June, 1989 I confirmed a rule nisi which the
applicant had previously obtained against the Respondent and
reasons would be filed at a later stage. These
On 4th April, 1989 the applicant herein moved the court,
on an urgent basis, for a rule nisi calling upon the
respondent to show cause why an order in the following
terms should not be issued:
"2.1 That the Deputy Sheriff for the District of
Maseru alternatively any Deputy Sheriff of the above Honourable Court
area of jurisdiction the hereinafter described goods may be
found, be directed, authorised and empowered to search for, seize and
attach and retain in his possession the goods hereinafter described
pending the outcome of an action to
2/ be instituted .
be instituted by the Applicant against the Respondent
within a period of 30 days from the date of this order alternatively
a period of 30 days from the date upon which the goods
hereinafter described are attached by the Deputy Sheriff, whichever
the later, to wit:
2.1.1 One 1987 Mercedes Benz 1113 Bus Engine Number MB
010385A034861 IN Chassis Number 35808226003772
That the Respondent be ordered to pay thecosts
hereof on the attorney and own clientscale.
3. That the order referred to in 2.1, supra, operate
with immediate effect pending the outcome of this application."
The application was moved before my brother Lehohla, J.
who on the same day, 4th April, 1989, granted the rule. It was
served upon the Respondent who intimated intention to
oppose confirmation thereof. Affidavits were duly filed by the
It was common cause from the facts disclosed by
affidavits that on 20th March, 1987 and at Johannesburg,
in the Republic of South Africa, the
applicant, of 14th Floor Barnib House, 11 Diagnal Street in
Johannesburg and the Respondent,
of Makopo in the District of
Butha-Buthe, Lesotho, entered into a written agreement (annexure "B")
styled an "Instalment Sale Master Agreement"
whereby the former sold and delivered to the latter the bus described
paragraph 2.1 of the above cited order for the amount of
M98,620 plus Government Sales Tax and Finance Charges of Ml1,834 and
respectively. Upon signature of the deed of sale by the
parties, the Respondent paid a deposit of M40,000 leaving a balance
which was to be cleared in 36 monthly instalments at
the rate of M2,530.49 per month with effect from 5th May, 1987 and
on the 5th of each month.
The conditions of sale included, inter alia, that
ownership in the bus would not pass to the buyer until receipt by the
all amounts payable by the buyer, in terms of the
agreement; in the event of the buyer defaulting in the punctual
payment of any
amount falling due, the seller would have the right to
claim specific performance in terms of the agreement i.e. payment of
due by the buyer to the seller, alternatively, an order
cancelling the agreement, return of the bus forming the subject
the agreement, damages and payment of all legal costs
including costs as between attorney and his own client, charges and
incurred by the seller in enforcing any of the
provisions of the agreement.
In his averments Paul Johan Slot, who deposed to the
affidavits on behalf of the applicant, alleged, inter alia, that as
of 10th March,
1989 the Respondent had fallen in arrears, with his
payment of the instalments, to the tune of M12,061-60 plus interest
the amount of M3,016-47. He had, therefore, committed a
breach of the terms of the agreement.
4/ Consequently the ........
Consequently the applicant intended instituting, against
the Respondent, an action in which to claim specific performance in
of the agreement, alternatively an order cancelling the
agreement, return of the bus damages and costs.
To enable the applicant to elect which course to pursue
in the intended action the applicant needed to obtain a valuation of
which was, however, under the control of and being used by,
the Respondent in the Kingdom of Lesotho,, Wherefor the applicant
the court for an order as aforementioned.
In his answering affidavit the Respondent initially
alleged that he was up to date with his payment of the
instalments. As proof thereof he attached annexures "NM1"
"NM19", copies of his bank statements, and annexures
"NM20 to "NM36" copies of counterfoils of the cheques
he had sent to the applicant. However, he later averred that the
applicant had not been regularly keeping him up to date with
of tits true position of his account. In that regard he
annexure "NM36", a letter of 18th July, 1988,
in which he pointed out that he had requested a certain Mrs. Smith of
applicant's office to furnish him with clear statements of his
account but all to no avail. Even if he were in arrears with his
of the instalments the Respondent alleged that it would not
be in the amount claimed by the applicant. Consequently he prayed
applicant's application be dismissed with costs.
For obvious reasons, in the Replying Affidavit, the
applicant contended that the Respondent's copies of counter-
5/ foil cheques ..
foil cheques , annexures"NM20" to "NM36"
could not be regarded as conclusive proof of payment. Furthermore, he
attached annexure "A", a reconciliation of Respondent's
statement of account reflecting all debits and credits, and pointed
out that it was clear from that annexure and, indeed, annexures "NM1"
to "NM36" to the answering affidavit that
some of the
payments allegedly made by the Respondent were subsequently
dishonoured by his bank. The purported payments were, therefore,
payments at all, and the applicant reiterated that the Respondent was
in arrears with his payment of the instalments, contrary
conditions of the terms of the agreement.
On the papers before me there could be no doubt in my
mind that on 20th March, 1987 the applicant and the Respondent did
a sale agreement whereby the former sold and delivered to
the latter the bus, the subject matter of this case, for a total
of M131,097-64 including Government Sales Tax and Finance
Charges. The Respondent paid a deposit of M40,000-00 leaving a
of M91,097-64 which he was to clear in 36 instalments at the
rate of M2,530-49 per month.
According to the applicant, the Respondent defaulted in
his payment of the instalments and as of 10th March, 1989 was,
in arrears in the amount of M12.06.60 together with
interest thereon. However, the Respondent denied that he owed any
the applicant and claimed that he was always punctual in
his payment of the instalments.
I was referred to the decision in Pillay v. Krishna and
Another 1946 A.D. 946 where the following principle in regard to the
of proof was stated in the head note:
"When a defendant in his plea sets up a plea of
payment of money, the onus is upon him,
6/ and if he ........
and if he fails to satisfy the court that there is a
sufficiently strong balance of probabilities in his favour, judgment
given for the plaintiff."
In the present case, I agreed with the contention of the
applicant that, for obvious reasons, the respondent's counterfoil
annexures "NM20" to "NM36" could not be
regarded as conclusive proof of payment. As the reconcilliation of
statement of account, annexure "A" to the Replying
Affidavit, showed that some of the payments he had made were, indeed,
dishonoured by his bank, the Respondent could not be heard to say he
was up to date with his payment of the instalments.
In my judgment the Respondent had failed to satisfy, on
a balance of probabilities, the onus of proof that rested upon him in
with the principle laid down in Pillay v. Kreshna and
Another, supra. That being so, it must be accepted that he had on the
of it, defaulted in the payment of his instalments and was,
therefore, in arrears in the amount claimed. In terms of the
concluded by the parties, the applicant was, therefore,
entitled to the relief sought for in the application.
In the result, I came to the conclusion that the
ruleought to be confirmed, subject to the condition that the
applicantinstituted the contemplated action within 30 days after
the vehiclethe subject matter of this case, had been seized and
taken possessionof by the Deputy Sheriff to enable valuation
thereof. I accordinglyordered.
For Applicant : Mr. Steyn,For Respondent : Mr.
Mphalane. 11th July,1989
REV. P.L. PITSO Applicant
V EXECUTIVE COMMITTEE OF L.E.C. Respondent
REASONS FOR RULING
Filed by the Hon. Mr. Justice M.L. Lehohla on the
11th day of July. 1989,
With regard to a point raised in limine by the
respondent this Court ruled that the respondent was successful.
Reasons for that ruling follow.
The applicant sought an order of this court against the
respondent in terms of which
a resolution taken by the respondent on21-6-1985
should be declared null and voidand of no effect,
the respondent was to be restrained fromtransferring
the applicant to Leribe L.E.C.
the respondent was to pay the applicant'ssalary in
the amount of M220 from October1985 and monthly thereafter.
the respondent was to be restrained fromejecting
the applicant from the residencehe is presently occupying within
the Teya-Teyaneng L.E.C. premises.
the respondent was to be restrained frominterfering
with the applicant in theexecution of the latter's pastoral
dutiesat Teyateyaneng L.E.C.
(6) the respondent was to be directed to pay the costs
of the application.
It is common cause that the applicant is an ordained
priest performing his duties under the auspices of the Lesotho
From the papers it appears as summarised in the notice
of motion the applicant had some differences with the Executive
of the Lesotho Evangelical Church (L.E.C.).
It seems to me that the point in limine relates to the
fact that the applicant did not exhuast the domestic remedies
him in the hierarchy of the L.E.C. He himself alludes
to the fact that he was going to appeal against the decision of the
Committee to the Seboka. See para 13 at page 6. On this
ground alone it is legitimate to conclude that the application is not
before this Court. See L.E.C, vs Nyabela 1980(2) LL.R. 466
"The constitution of L.E.C. does not provide an
"appeal" properly so called to the full Seboka on the
question of transfers.
An appeal lies as of right only if the
Executive Committee relieves a priest of his duties whether
permanently or temporarily,
but pending appeal, the Executive
Committee's decision stands" (S. 210 of the constitution).
With regard to the breach of natural justice Judicial
Review of Administrative Tribunals in South Africa 1963 Edition by
at page 82 makes relevant and interesting reading. It
"Until a final decision has been given to an
application before the domestic or statutory body and its appellate
organs, it cannot
be said that an irregularity which may have
occurred will not be set right nor justice done. This justification
loses its force where
the appellate body has prejudged the matter and
was itself the body which in the first instance committed the
In the absence of any demonstrable act attributed
to the Seboka showing that it has prejudged the issue it
follows that whatever irregularities may have been condoned by the
Committee of the L.E.C. would be put right by the Seboka in
Unlike in Nyabela where the Seboka had already dealt
with the matter when resort was later sought to this Court,in the
there is no indication that it has already done so.
It was argued on behalf of the applicant that he has
been taken by surprise by the other party and pointed out that
relying on Rule
8(10)(c) the point raised should have been contained
in an answering affidavit. The rule reads
"Any person opposing the grant of any order sought
in the applicant's notice of motion shall :
(c if he intends to raise any question of law without
any answering affidavit, he shall deliver notice of his intention to
within the time aforesaid, setting forth such question."
The applicant relied on Theory of Pleadings 5th by
Isaacs at p. 110. Clearly the authorities disapprove of another
party being taken
But at p. 81 The Civil Practice of the Superior Courts
in South Africa by Herbstein and Van Winsen it is said
"If legal points are set forth in the application,
the applicant is not confined thereto but may advance any further
for the application that may arise from the stated
facts. A party is entitled to make any legal contention which is open
him on the facts as they appear on the affidavits, and the court
may decide an application on a point of law which arises out of
alleged facts even if the applicant has not relied thereon in his
It is significant that Rule 8(10)(c) specifically
enables an opposing party to raise a question of law
without any answering affidavit. Further that Hebstein
and Van Winsen state that such a party is entitled to make any legal
which is open to him on the facts as they appear on the
Moreover Rule 8(17) provides that
"The periods prescribed with regard to applications
shall apply mutatis mutandis to counter application."
Read Rule 8(8) 8(21) with Munnik J.'s dictum in
Yorkshire Insurance Co. Ltd vs Ruben 1967(2) at p. 265 with regard to
forms of notices
in interlocutory matters, that:-
"There is to my mind a substantial difference
between an application being brought on notice and an application
brought on notice
of motion. It could never have been intended, when
parties are already engaged in litigation and have complied with such
as appointing attorneys and giving addresses for the
service of documents in the proceedings, that the parties would be
to go through all the same formalities again with all the
concomitant and unnecessary expense.
I am satisfied that the use of the word "notice"
in sub-rule (11) (read 5 and or 21 to Rule 8 of Lesotho Rules) as
to the "notice of motion" in the other sub-rules to
Rule 6 (read Rule 8) indicates clearly that interlocutory and other
applications incidental to pending proceedings were not intended to
be brought by way of formal notice or motion, in the same way
applications initiating proceedings."
It was further argued for the applicant that respondent
failed to place his appeal before the appellate body which had sat in
i.e. an occasion which took place well within the period when
his appeal could have been heard and disposed of by Seboka.
This argument was countered by the submission that the
applicant could have sought an order compelling the respondent to
appeal records to Seboka. It is a fundamental law of
procedure that the court cannot assume bias.
It was further submitted that even if the applicant was
given notice it would not get rid of the fact which he admits that he
not go to Seboka on appeal. Hence as no point of fact is in
dispute Rule 8(10)(c) does not apply in so far as it requires that
I upheld the points raised in limine with costs on the
11th July, 1989.
For Applicant : Mr. Mphalane For Respondent : Mr.
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