THE HIGH COURT OF LESOTHO
the Application of :
DORBYL FINANCE (PTY) LTD Appplicant
VJ.M. LETHOBA Respondent
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
12th day of February,1990.
On 8th December 1908 the applicant obtained an interim
Court Order before Molai J. On the following day the applicant
sought to be
issued from the office of the Registrar the Court Order
appearing on pages 31 and 32 of the record.
The 3rd August 1909 was the extended return date of the
Rule Nisi which had been granted a long time previously.
I heard the matter on the return date.
The case for the applicant is that he sold a bus to the
respondent. The respondent is in arrears. The applicant's counsel
the applicant's papers set out that the respondent says
that he had to pay for repairs on the vehicle hence his failure to
price fixed for the bus. The respondent is of the view that
because of the expenses he incurred in repairing the
vehicle he was not obliged to effect payments agreed
upon between him and the applicant.
In an answering affidavit one Molati who is not the
respondent avers that he is entitled to answer the applicant's papers
he Molati is the one using the vehicle.
The applicant's counsel indicated that he was not taking
the point that Molati has no locus standi but rather is impugning the
Annexure B attached to the applicant's papers shows in
clause 6 relied on by the applicant at page 7 of its affidavit that
"Ownership in the goods shall not pass to the Buyer
until receipt by the Seller of all amounts payable by the Buyer under
agreement in respect of such goods."
See paragraph 4 of the applicant's affidavit.
The applicant also relies on the breach clause reference
to which is made at page 8 setting out that
"Should the Buyer default in the punctual payment
of any amount falling due in terms hereof .... then in any of the
events the Seller shall have the right to claim immediate
payment of all amounts then outstanding under this agreement whether
not such amounts are due at that stage, all of which amounts shall
immediately become due and payable; provided however that if the
Buyer fails to make payment thereof the rights of the Seller under
this Clause 15 shall not be exhuasted and the Seller shall,
the election to claim immediate payment in terms
of this sub-clause, be entitled to claim and recover the relief set
out in 15.2.2;
or in terms of 15.2.2 cancel this agreement whereupon
the Buyer shall be obliged at its own risk and expense forthwith
possession of the goods to the Seller and the Seller shall
be entitled to recover the difference between ..."
amounts set out in paragraphs 188.8.131.52 and 184.108.40.206.
It is to be observed that in terms of paragraph 6 of the
opposing affidavit with which the respondent fully associates himself
above averments appearing in the applicant's paragraph 4 of the
founding affidavit are admitted. So are the ones appearing in
5 and 6 stating that
"The respondent furthermore in terms of Clause
2.1.2. undertook to pay all legal costs including costs as between
his own client, charges and disbursements incurred by
the Seller in enforcing any of the provisions of this agreement."
"The respondent in terms of Clause 24 of the
agreement chose domicilium citandi et executandi for all
notices and processes in terms of the agreement and in pursuance
at the address given on page 1 of annexure "B"
hereto being the address set out in paragraph 3 hereof. "
It is admitted on behalf of the respondent that in
pursuance of annexure "B" i.e. the Instalment Sale Master
the applicant sold and delivered the vehicle to the
respondent, and the parties signed annexure "C" which is
schedule of the Instalment Sale Agreement. The cash price
is reflected as R85,000.00. The agreement constituting annexure C
entered into on 7th September 1988. The instalments were to be
paid at the rate of R2079.89 per month starting on 5th October 1988.
The total number of the instalments is reflected as thirty six. The
final instalment is shown as due and payable on 5th September
In paragraph 8 it is denied on respondent's behalf that
he has committed any breach of the contract. The reason advanced is
"the applicant has caused the respondent to incur
financial losses in so far as the vehicle in question is concerned in
right from the onset (sic) the vehicle in question had numerous
mechanical problems, which problems the applicant: was made well
aware of the same (sec) per the letter dated the 30th December 1988
I do not think that the above assertion detracts from
the averment that the respondent failed to make payment of the
as prescribed for in the schedule. See Annexure "D".
In Clause 17.1 of annexure "B" it is
specifically stipulated that
"the Buyer shall not cede any of its rights or
assign any of its obligations or lease any of the Goods hereunder
prior written consent of the seller."
It thus would appear that Sello Abel Molati has neither
lot nor part in these proceedings. The question to be determined is
the respondent is in arrears. I find that he is. If so then
in terms of the agreement the applicant is entitled to judgment.
The rule nisi is confirmed in terms of sub-paragraphs
2.1 and 2.2 of the Order of Court that was issued on 8th December
JUDGE. 12th February, 1990.
For Applicant : Mr Steyn For Respondent : Mr
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