IN THE HIGH COURT OF LESOTHO In the Application
JACOBUS DU PLOOY Applicant
S.C. BUYS N.O. AS TRUSTEE
INSOLVENT ESTATE L. TLADI Respondent
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
4th day of February, 1992
On 3rd May 1991 this Court granted condonation for late
filing of replying affidavits. The application for condonation had
by the respondent. This was the 1st leg.
Judgment on merits constituting the second leg of the
application was reserved.
It is regrettable that the Court has only at this late
hour been able to consider reasons for Judgment and put them together
form. I must commend Mr. Fick for the handy heads of
argument submitted and the able manner in which he argued his case.
It appears that on 18th February, 1988 the applicant
launched his main application (referred to above as the second leg of
against the respondent in his official capacity as
Trustee of the Insolvent Estate of one Lefu Gilbert Tladi for the
release of a certain Caterpillar D 7E Track-type
Tractor (hereinafter referred to as "the Bulldozer").
The applicant has filed his affidavit and that of his
attorney Mr. S.C. Harley in support of his application. He is
also relying on the affidavit of the insolvent Mr. Tladi.
The applicant claims that he is the owner of the
bulldozer. He substantiates his claim by annexing certain documents
page 16 of the record.
These are invoices showing that he bought the bulldozer.
The particulars reflected are the name of the buyer J.M, Du Plooy of
Street Ficksburg where the bulldozer was delivered on 12 March
1986. The purchase prize is reflected as R20,000-00. The document
Annexure "A" appears to have emanated from Barlow's
(O.F.S,) Ltd Bloemfontein for the account of Trust Bank of Africa
27 Voortrekker Street, Ficksburg.
Annexure "B" is an Instalment sale agreement
form reflecting a transaction that took place on 12th March 1986
Trust Bank of Africa Limited, 27 Voortrekker Street,
Ficksburg and one Jacobus Michiel Du Plooy 4 Hill Street Ficksburg.
involved a D7E Tractor-type Bulldozer with 75 Doser
and Ripper. The price is reflected as R20,000-00.
Page 19 reflects a schedule of payments the upshot of
which is zero balance save for the negligible amount of R19-84
the debit side of the balance sheet. It appears that the
applicant entered into a sale agreement with the Trust Bank and as of
October 1986 he had finished paying his debt to that Bank.
It was submitted by Mr. Pick for the applicant
that it is on the above basis that the applicant has approached this
Court saying he is the owner of the bulldozer.
The applicant in his
founding affidavit has traversed this field in great lengths and
Mr. Pick boggled at what he referred to as a
totally unexpected line of attack levelled at the applicant's case
contained in the respondent's
answering affidavit. His submission
crisply concretized the applicant's bewilderment and consternation,in
the sentence :
"First without any substance whatsoever a statement
is made that the applicant is in fact a mere front for the insolvent.
page 41 of the papers where a bold statement is made that this
was a device from an institution in S.A. i.e. the Trust Bank. The
applicant is faced with a dilemma. He has made a well documented
proof of the purchase but the respondent says to him 'you are just
Indeed at page 41 the respondent Mr. Buys in his
"During my investigation of the affairs of the
Insolvent, I realised and found that he did various deals in this
way and in this respect I respectfully refer to
the affidavit of Attorney Snyman annexed hereto, marked
Annexure "SCB.1". "
The phrase "this way" appearing loc
cit. refers to the preceding paragraph at page 41 saying :
"I say that the applicant entered into an agreement
with the insolvent in terms whereof the applicant would purchase the
in his name but that the Insolvent would be responsible for
payment of the instalments and that there was an understanding
the applicant and the Insolvent that the bulldozer, or an
item that is bought in this way, would stay the absolute property of
Mr. Buys went further to say :
"I respectfully refer the Honourable Court(sic)
that such agreements are fraudulent agreements as the true facts are
to the financing company and they are deliberately
brought under the impression that the item which is financed is in
by the South African citizen.
I respectfully wish to draw the Honourable Court's
attention to the fact that although the documents would show that the
is the owner of the bulldozer, this is in fact not
the honest and true situation, and it is merely a device used by the
and the applicant to obtain finance from an institution in
I wish to repeat what I have
in regard to the Instalment Sale Agreement and say again
that although it appears that the applicant was the purchaser, he was
acting as a front for the Insolvent. I respectfully say that
a document is not the ultimate proof of a real situation of fact.
further respectfully say that the applicant is trying, through
documentation in his possession, to claim an asset which does not
belong to him, and I respectfully say that it is a conspiracy between
the Insolvent and the applicant to prevent me from realising
assets in the Estate. This would be to the prejudice of creditors
and I respectfully say that I should take extreme care
the interests of creditors."
I endorse Mr. Matooane's view that Annexure "D"
a document written in Afrikaans bearing the letter heads of the Trust
Bank dated 24th March 1986
and addressed to J.M. du Plooy has not
been brought before Court in terms of the Rules of Court as it is not
translated into any
of the official languages recognised by this
Court. Regarding this letter Mr. Buys deposes that
"this document does not take the matter any further
and does not give any further proof that the applicant is in fact the
of the bulldozer"
See page 20 read against page 42 where reference is made
to Annexure "D",
The Court has had regard to correspondence extending
from Annexures "E" to"G" also.
Annexure "E" is a letter written by Messrs
Harley and Morris addressed to Messrs Du Preez Liebetrau and Co. and
for Mr. Buys' attention. It is dated 26th March 1987. It
re: J.M. Du Plooy\Insolvent Estate Tladi\D 7E Tractor
We act for Mr. J.M. Du Plooy who has instructed us that
he is the owner of the above-mentioned bulldozer, which apparently
the possession of Mr. Tladi whose estate has now been
sequestrated. We understand from our client that the Bulldozer will
by public auction in the very future.
We are further advised by our client that he has
discussed this matter with your Mr. Buys who evidently agreed to
withdraw this matter from the inventory of goods for
sale. This Bulldozer evidently, at the time of the sequestration of
in his possession on loan from our client and we now
respectfully request an immediate confirmation of the following from
That this vehicle will not be sold inexecution.
That this is released to our client whowill remove
it from its present whereaboutswhen we have confirmation of
its,releasefrom Mr. Buys.
We enclose, herewith, a photocopy of the Instalment
Sale Agreement together with a copy of a letter
to our client by Trust Bank dated 24th March 1986.
We await your responses as a matter of urgently(sic)
preferably today in order that our clients(sic) interests will not be
signed: Harley & Morris
copy received on 26-3-87 by signed: Buys "
Annexure "F" is a reminder to the addressee
Mr. Buys to respond to Annexure "E" following an alleged
conversation between Mr. Buys and the writers of this
In response and in terms of Annexure "G" dated
7-4-87 Messrs Du Preez Liebetrau & Co. wrote to say :
"We thank you for your letter dated 26-3-87 and
confirm that we noted contents thereof as well as the contents of the
We further confirm that we spoke to your Mr. Harley
subsequent to your letter referred to above and that we
assured you that we would not proceed with execution of the bulldozer
sale of (sic) execution which was held on the 3rd April 1987.
We can now confirm that the bulldozer was not sold and that it is
still being kept at the mine at Kao.
The Trustee is, however, not prepared to release this
bulldozer to your client pending the outcome of certain
investigations and enquiries
which are to be held on the 24th April
1987. The information we have from the Insolvent and various sources
clearly indicates that
your client is not the owner of the bulldozer
and until such time as this aspect has been clarified, the bulldozer
will be considered
as an asset in the estate of L.G. Tladi.
Would you kindly advise whether it is necessary for us
to issue subpoenas against your client to appear at the inquiry on
April 1987 and whether he would appear voluntarily.
signed: Du Preez Liebetrau & Co. "
The above depicts Mr. Buys' attitude as at the date 7th
April 1987. I am not aware that the addressees took up any of the
options set out in the last paragraph of Annexure "G".
Whatever the case may be it appears Mr. Buys' attitude
prevailed without abating up to the time when he deposed to his
on 18th March, 1988, and beyond.
The reasons advanced by the applicant why Annexure "D"
was not brought before Court in terms of the Rules are most
It is irrelevant that the respondent is Afrikaans
However, the respondent has been so relentless in his
attitude that he did not only call in aid the support of Mr. Snyman
of this Court who has sworn in affidavit that he had
occasion to act on behalf of a certain Mclachlan who had assisted
insolvent herein) to buy a Nissan Safari Station Wagon
from a bank in South Africa, the reason being that Tladi was not able
finance with South African banks, but has strained to show
that the bulldozer falling under similar circumstances to the Nissan
not belong to the applicant.
Mr. Snyman at page 50 of the record says :
"I communicated with the respondent on various
occasions to secure the release of the vehicle (i.e. the
Nissan) to me but was unsuccessful. The vehicle, to my knowledge, is
in the possession of the Insolvent, Mr. L.G. Tladi, as he has
not been cooperating with his Trustee and he has been hiding the
vehicle from the Trustee. My client had to pay the outstanding
amount on the hire-purchase agreement to the bank from his own funds
and in fact was fortunate to be reimbursed by the Insolvent".
It is significant that the applicant relies on Annexure
"B" attached to the founding papers but remains silent to
by the respondent that the copy of the sale agreement
given to the respondent in an attempt to release the bulldozer is
"SCB 2" which does not bear the stamp of
cancellation borne by Annexure "B".
The respondent attached importance to the fact that the
on Annexure "B" is dated 26 November 1986 and
went further as follows :-
" the Estate of L.G. Tladi was placed under
provisional sequestration on or about 4th July 1986. In
terms of the applicant's papers, he could only have become owner of
on 26th November 1986. At the stage when the Estate was
sequestrated the Trust Bank of Africa was still the owner of the
and was therefore entitled to claim the vehicle from any
party in whose possession it was found"
It is significant that in his replying affidavit the
applicant chose to gloss over this important charge and contented
giving it a mere lick and promise.
In his reply the applicant seems to have avoided the
charge that he has nowhere disclosed to the Court the "exact
the alleged agreement he struck with the insolvent"
See page 46.
In the result the question remains unanswered as to the
specific terms on which the agreement was based regard being had to
that the item of property said to have been hired out to the
Insolvent was very expensive and valuable.
No details or terms, despite the respondent's reasonable
concern that their absence has the effect of enervating the
To my mind if there was such agreement it would not be
too much to seek to know :-
the hourly or monthly rate in terms whereof
thebulldozer was rented out to the Insolvent;
for how long the vehicle was rented; and
the conditions surrounding the agreement: suchthings
as an operator, services, fuel,destruction and any such items as
are normalrelating to this machine when under hireagreements.
Mr. Buys avers that it should be common knowledge that
the plant hire business is a very complicated business and the terms
hire agreements are specialised. I agree and would go further
to say absence of such details would cast indeed a long shadow on the
allegation that in fact such an agreement was ever in existence.
Mr. Buys swore at page 47 that he refused to release the
bulldozer to the applicant. He says he informed the applicant that
according to the information received from the
insolvent himself belonged to the insolvent. Annexure "SCB 3"
being notes the deponent jotted down shortly after his
appointment as Trustee and during his discussion with the Insolvent.
Mr. Fick sought in argument to show that the Insolvent
could not have understood the technical and legal meaning of
But my reading of the notes give no basis for a
possibility that even though he is a layman the Insolvent didn't
understand that when
he said the bulldozer belonged to him he meant
he was not the owner; and that instead when he said so he thereby
meant the applicant
was the owner.
In my humble opinion Mr. Pick seems to have
underrated the common sense that the insolvent should ordinarily be
in possession of, even if he is denuded of every
At page 128 the applicant makes a sabre thrust at the
respondent's attitude which he describes as "peculiar,
irrational and intransigent".
At page 131 he questions the
applicant's bona fides. However this kind of attack
regarding the respondent rings a very familiar note as was the case
in CIV\APNs\211 and 212\86 Jack Yudelman Lesotho
Wholesalers(Pty)Ltd vs L.G. Tlali and Jack Yudelman Lesotho
Wholesalers(Pty)Ltd vs Leful Wholesalers (unreported) at page 5
where this Court said of Tlali whose evidence the applicant wishes me
to rely on :
"It casts a long shadow on respondent's intentions
that the incorporation of his two companies was effected just a day
default and provisional sentence judgments were obtained
against him i.e. 28th April 1986"
while on the other hand at page 22 what was said of the
respondent is :
"Indeed it would be out of character for Mr.Buys to
behave otherwise than honourably for it was through him that a
Rottanburg was brought to book and struck off from the
Johannesburg Roll of Advocates when he tried to persuade Mr. Buys to
with him in a dishonourable scheme to defraud their
respective clients I have not been able to
find any sinister motive readable from Mr. Buys'
discharge of duty in these proceedings'".
In respect of the instant application I feel Mr. Buys
would be jeopardising his integrity if he went along with the
applicant in the
face of the evidence in his possession showing that
the bulldozer does not belong to the applicant,
Mr. Pick sought to highlight the absurdity of any
suggestion that the Trust Bank was involved in an underhand scheme.
should not be lost of the fact that an invoice or a
receipt issued in the name of a purchaser does not necessarily make
the owner of the property bought. I say so because the
money used may be someone else's who authorised the purchaser to do
for him. Moreover any such conclusion as Mr.Fickwishes to be reached would not follow because Mr. Buys clearly
said these agreements are fraudulent
"as the true facts are not disposed to the
financing company and they are deliberately brought under the
impression that the
item which is financed is in fact bought by the
South African citizen"
Thus Mr. Buys has excluded financing institutions from
the category of dishonourable dealers.
In the papers before me there is no proof of instalment
payments to back up the applicant's allegations that he effected the
of this bulldozer by instalments.
The application is dismissed with costs.
J U D G E
For Applicant : Mr. Fick For Respondent: Mr.
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