CIV\APN\436\91 IN THE HIGH COURT OP
In the matter between:
NATIONAL MOTOR COMPANY (PTY) LTD Applicant
PITS0 MALUNGA Respondent
Delivered by the Honourable Mr. Justice J.L. KHEOLA
on the 27th day of March. 1992.
This is an application in terms of which the applicant
approached this Court Ex Parte for the return of its motor vehicle (
which was lent to the respondent on the 3rd July, 1991.
The facts are that on the 3rd July, 1991 the respondent
brought to the applicant's workshop his Mercedes Benz car with Reg.
for general repairs. The applicant alleges that the
respondent was lent a combi as he was going to attend a funeral and
did not have
transport. He promised to bring the said vehicle back to
the workshop on the following Monday which was the 8th July, 1991.
never returned the vehicle.
It is common cause that while the respondent's car was
in the custody of the applicant it caught fire and was damaged. The
alleges that it repaired the car and informed the
respondent accordingly. On one occasion the respondent came to the
workshop and took his car for a drive. When he came back
he was completely satisfied with the repairs done and wanted to pay
The applicant's employees refused to accept payment by
cheque and demanded cash. The respondent went away and never came
pay cash for his vehicle. Letters were written to the
respondent by the applicant's attorneys but no response was received
The applicant alleges that it has made a proposal to the
respondent that he is free to collect his car and take it to somebody
who can examine it and if there is anything wrong it can be
repaired at the expense of the applicant.
The combi in question is a trade-in vehicle which has to
be resold and its continued use by the respondent will cause
harm to the applicant as the vehicle depreciates from
time to time. The applicant alleges that the matter is extremely
On the 20th December, 1991 the applicant obtained a rule
nisi as a result of which the combi was seized from the
-3-respondent and it is now in the custody of the deputy
In his answering affidavit the respondent admits that
the combi was in his custody because it was given to him by the
a courtesy car. He told the applicant that he had to
fetch the remains of his deceased grandfather from the Smithfield
but he did not use the combi for that. The combi was to be
used as a courtesy car by him for hie family's daily use in and about
Maseru and not only for a week-end. In fact, he did not use the combi
for the trip to Smithfield. The terms of the agreement were
combi is a courtesy car for use by him until the necessary work to
his car is completed and he gets it back. He denies the
that it was to be returned on the 8th July, 1991.
The argument in this matter was restricted to the issue
of whether there was urgency entitling the applicant to move the
Ex Parte. The parties agreed that if there Was no urgency
the rule should be discharged without going
into the merits.
In his answering affidavit the respondent avers that the
applicant has not complied with the mandatory requirements of Rule 22
the High Court Rules 1980 in setting out explicitly
circumstances which it avers render the matter urgent, or the reasons
why it contends that it could not obtain adequate
-4-redress at a hearing in due course.
The respondent avers that the matter is not urgent. He
has been in possession of the combi since July, 1991, and on
it waited from the 8th July until the end of the
year before taking steps to recover it. He avers that that long delay
that the applicant itself did not regard the matter as
urgent or very serious or important. Applicant was quite prepared to
for many months, and then approach the Court Ex Parte on an
urgent basis, completely disregarding the arrangements between the
and misleading the Court by withholding the material
Rule 8 (22) reads as follows:
In urgent applications the court or ajudge may
dispense with the forms andservice provided for in these rules
andmay dispose of such matter at such timeand place and in
such manner and inaccordance with such procedure as thecourt
or judge may deem fit.
In any petition or affidavit filed insupport of an
urgent application, theapplicant shall set forth in detail
thecircumstances which he avers render theapplication urgent
and also the reasonswhy he claims that he could not beafforded
substantial relief in an hearingin due course if the periods
presented bythis Rule were followed.
Every urgent application must beaccompanied by
a certificate of anadvocate or attorney which sets out
thathe has considered the matter and that hebona fide
believes it to be a matter forurgent relief.
In C. of A. (CIV) No.l8\1991 Khaketla v. Malahleha and
others (unreported) at pages 5-6 Ackermann, J.A. said:
"Audi alteram partem is a fundamental principle of
procedural justice. I do not propose burdening this judgment with an
of the circumstances under which the rule may be departed
from in civil litigation. Apart from cases where:
Statute or the Rules of Courtsanction such a
The relief sought does notaffect any other party;
the rule should only be departed from in exceptional
cases. One such exceptional case, is where there is a reasonable
notice to the opposing party would enable him to
defeat or render nugatory the relief sought or precipitate the very
harm which the
applicant is seeking to avert. (See in general,
Herbstein and van Winsen, The Civil Practice in the Superior Courts
of South Africa,
3rd ed. p. 59-60). The principle of audi alteram
partem ought not to be subverted, even when granting a rule nisi, by
rule (or any part thereof) to operate as an interim
order if such interim order affects the rights of another party,
interim order can itself be justified by the exceptions
above referred to."
The question that one has to answer is, what made the
matter so urgent that the respondent could not be given notice of the
The combi was given to the respondent by the applicant
on the 3rd July, 1991. He was given free use of
the combi and according to the applicant it was
to be returned on the 8th July, 1991. The combi was not
returned on that day but the applicant took no immediate action to
its vehicle. Negotiations went on until the 13th December,
1991 when the applicant decided that the matter had become too urgent
and instituted an Ex Parte application. Mr. Mpnalane, attorney for
the applicant, submitted that the vehicle depreciates in value
continuous use and that the danger which faces the owner is
depreciation. If the application was brought on notice, such notice
would precipitate the very harm i.e. danger of depreciation which the
application is trying to forestall.
I do not see how a notice of only a few days could
increase depreciation of the vehicle which was used only in and about
the time. There is no suggestion that if notice was given
the respondent would have undertaken a very long journey to Botswana
Zimbabwe. I do not understand what had suddenly made the matter so
urgent .because the respondent had been in possession of the combi
for more than five months and the applicant, through its lawyer, was
busy negotiating the return of the combi under suitable conditions.
I do not agree with the submission that there were any
circumstances that were so exceptional that the audi alteram partem
to be subverted. This was a case in which the
operation of the rules of this Court had to be observed
because the matter was not urgent. The respondent was
entitled to a notice and to answer in the usual way.
The matter could not be urgent because on the 29th
November, 1991 a meeting was held which was attended by the
and his attorney, Mr. Koornhof, and Mr.
Mpobole, applicant's attorney. A certain agreement was reached and
Mr. Mpobole undertook
to take instructions on the counter-proposal
and to thereafter revert to Mr. Koornhof and advise him of
applicant's attitude, Mr.
Mpobole did not report back to the
respondent's attorney but his colleague decided to launch an urgent
application on Ex Parte basis.
Mr. Mpobole has vanished into thin
I am convinced that the matter was not urgent and that
the Rule Nisi ought not to have been granted if the applicant
had disclosed all the material facts.
In the result the rule is discharged with costs.
J.L. KHEOLA J U D G E .
27th March, 1992.
For the Applicant - Mr. Mphalane For the Respondent
- Mr. Edeling.
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