IN THE HIGH COURT OF LESOTHO In the matter of
NATIONAL TRADING BLOEMFONTEIN(Pty)Ltd Plaintiff
MICHAEL STEEL ENGINEERING(Pty)Ltd 1st
DefendantT.T. GENERAL WORKS 2nd Defendant
MUTAVOZIC MILOSAV 3rd Defendant
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
5th day of February, 1992
When the above action was first conceived the plaintiff
proceeded against the 1st defendant trading, according to the Summons
styled, as T.T.General Works. But following an application
for joinder it was ordered that the 2nd and 3rd defendants be joined
and styled as they now appear above.
In the instant application the plaintiff prays for an
Summary Judgment in the amount of M67,515-10
Interest thereon at the rate of 11% a tempore morae
Costs of suit, and;
-2-(d) Further and\or alternative relief.
The claim for M67,515-10 is said to be in respect of
goods sold and delivered to the 1st defendant, See paragraph 4 of
In two applications i.e. CIV\APN\103\90 and
CIV\APN\248\89 two orders were granted by consent, namely the
application to rescind
a judgment obtained earlier by default and an
application to interdict the deputy Sheriff from attaching certain
goods and locking
the premises. It was further agreed between the
parties that costs in those applications were to stand over pending
of the instant matter.
It was argued for the plaintiff that it claims in terms
of Rule 28 (summary judgment) a sum of M67,515-10 being in respect of
sold and delivered to the 1st defendant. See pages 29 and 36
of the paginated record of proceedings. The amount is further
on page 15 which is a statement of account showing this sum
to be an outstanding balance owed by the 2nd defendant T.T. General
It was argued that part payment in the amount of
M15,000-00 was effected by the 3rd defendant on behalf of the first.
this regard was made to pages 21 to 23 reflecting
unpaid cheques drawn in favour of the plaintiff.
Attention was drawn to the fact that above the signature attached to
and "NM5" on pages 21 and 22 appears the
name Michael Steel Engineering,
The Court was told that in an attempt to settle the
account the 3rd defendant on behalf of the 2nd defendant paid
Ml5,000. See page
19 a deed of cession and authority marked "NM2"
where the body referring to itself as T.T. General Maseru cedes to
Bloemfontein the plaintiff the title in respect of M15,000-00.
Page 20 reflects another deed of cession made by the 3rd defendant
Misolav Mike Mutavdzic on behalf of the 1st defendant. Both these
documents were drawn in 1988. See pages 21 to 23. Counsel for
applicant accordingly submitted that the 3rd defendant used these
companies i.e. defendants 1 and 2 for purposes of defrauding
confusing the plaintiff who would be in a quandary as to who to sue.
The learned counsel consequently gave this as the reason
instituting the action against all three defendants. He submitted
that it was important for the plaintiff to show that the entry
appearance to defend is solely for purposes of delay. In this way
the plaintiff would have at once gone over the hurdle requiring
it should establish that the defendants have no bona fide
defence. He thus submitted the defendants have no defence to the
claim by plaintiff. It is trite that for the defendants to succeed
must show that they did not enter appearance for delay.
In fact it is not necessary to allege that the defence is bona
fide. Thus it becomes imperative that the defence be outlined
for the Court to see on its own that the defence is bona fide.
The plaintiff's counsel accordingly and in reference to
page 24 the answering affidavit; pointed out that nothing that can be
from the facts shows any bona fide defence.
On the contrary, so the argument went, all these transactions were
backed up by the 3rd defendant. Further that nothing
denial of liability which is strange in view of the fact that such
liability is based on the allegation of non-payment
of the amount
shown by the plaintiff to be due and owing. Indeed Chambers vs
Jonker 1952 (4) 635 states that the
"defendant should set out his defence in some
detail in order to prove it is bona fide",
637 the authority states
"It seems clear that it is not enough for a
defendant simply to allege that he has a bona fide
defence to the plaintiff's action. He must allege the facts upon
which he relies to establish his defence. When this has been done
is for the Court to decide whether such facts, if proved, would in
law constitute a defence to the plaintiff's claim, and also
they satisfy the Court that the defendant in alleging such facts is
acting bona fide".
In reacting to the onslaught Mr. Hlaoli submitted
that this is not the type of case where summary judgment should have
insisted on especially after a concession was made to
the necessity to apply for joinder.
He contended that the plaintiff operating from a
position of advantage afforded it by having seen the answering
affidavit of the 1st
defendant in its opposition to the summary
judgment applied for joinder which joinder required the plaintiff to
its summons. In effect the plaintiff once having
seen the 1st defendant's answers trimmed its sails in accordance with
winds. Thus showing, so it was contended, the
plaintiff realised that it would not succeed under the conditions in
which the papers
The Court was invited to take into account that parties
joined subsequently to the application for joinder could not reply
came in after the answering affidavit by the 1st defendant
had been furnished. It was further argued that these two new
are not able to file their affidavits because they were
only joined after the papers against the 1st defendant had been
Mr. Hlaoli argued that it would not be proper if
summary judgment could be insisted on in the face of the fact that
even though the plaintiff
mentioned the new defendants directly or
indirectly, these new defendants were in fact not parties to the
action preceding joinder. He submitted therefore that
these two would need to be given an opportunity to defend the action;
the summary judgment were to be granted against them
regardless, it would mean that they would not have had an opportunity
the case against them in the application or action.
The Court was accordingly invited to consider Rule 28
and see if it covers this particular case. Learned Counsel thought
it is doubtful
whether it does, and accordingly submitted that it
would be improper to proceed by way of summary judgment as envisaged
in Rule 28;
for this case qualifies neither under (a) requiring that
it must be instituted on a liquid document, nor under (b) requiring
it be for liquidated amount sounding in money.
Mr. Hlaoli pointed out that with regard to the
1st defendant it is clear reading from annexures attached to the
supporting affidavit that these
invoices were referred to the 2nd
defendant an independent company which had credit facilities granted
by the plaintiff. These annexures
being invoices, so the argument
went, kept by the plaintiff show that the 1st defendant is the one
owing the moneys and not the 2nd
defendant as alleged by the
plaintiff. Thus it was asked why the plaintiff should want to say
the 1st defendant who never ordered
goods, though summons
says it did and further had goods delivered to it, is a
party for goods delivered to a different person.
Dealing with the submission that the deeds of cession
were drawn and cheques signed on behalf of the 2nd defendant Mr.
Hlaoli argued that all these cannot suffice as proof that the 1st
and 3rd defendants were parties to a contract between the 2nd
and the plaintiff. He pointed out that the Certificates of
Incorporation show that the first two defendants were registered in
and 1987 respectively; each owning different licences and
operating in different premises. See pages 27 and 28.
Pointing out that the crucial point is that these 2
defendants were in operation in 1988 Mr. Hlaoli in reply to a
question posed by the Court stated that if it is felt that the
defendants took advantage of their numbers to confuse
and cheat the
plaintiff as suggested by the plaintiff's counsel, that would be a
question for evidence at trial.
He pointed out that according to these documents the
was subscribed to by the 2nd defendant which is a person owing
inasmuch as it drew it in favour of the plaintiff. He pointed
that the only common thing is that the 3rd defendant was the manager
also of that company which drew the cession or on
whose behalf he drew the cession for an amount of
Learned Counsel pointed out that the 2nd cession was
made by the 1st defendant for M20,000 and singed by the 3rd
defendant. He proceeded
to show that this would make a total of
M35,000-00 suggesting that the 3rd defendant is somehow involved to
the tune of M35,000 yet
the amount said to be owing by him also along
with the two other defendants is in excess of M67,000 as reflected in
The question posed was how would this Court make a
judgment against the 3rd defendant in the amount of M67,000 and more;
what basis would he be obligated thus?
It was argued that in relation to these two deeds of
cession ex facie the papers nothing connects these
undertakings to a debt owed to the plaintiff as borne out in the
invoices or statements of account.
Thus, it was argued, there exists
a danger that the Court would have to assume that the invoices
related to the debts owed to the
plaintiff even though that is not
so. It should be borne in mind that the order that established the
debt was made by the 2nd defendant
and not the 1st or 3rd defendant.
There is no indication, so it was submitted, that these documents
related to that.
With regard to the cheques Mr. Hlaoli reminded
the Court that it had been suggested on the plaintiff's behalf that
they related to a debt owed by the 2nd defendant per
calling upon the Court to make assumptions in that regard. Mr.
Hlaoli urged on the Court to resist the temptation to deprive
itself of the opportunity to hear evidence.
It was pointed out that it would appear that the amount
reflected in the cheque drawn in favour of the plaintiff by the 1st
is M15,000. Yet three cheques were drawn, and only one
related to the transaction between the plaintiff and the 1st
Their sum total foots up to M15,000 + M5,500 + M5,000
Thus Mr. Hlaoli pointed out that if the summary
judgment were to be granted against the 1st defendant on the basis
that it ostensibly owed M35,000
why should the 1st defendant be made
to bear the brunt of paying M67,000 in the light of the fact that its
commitment extends only
to no more than M35,000? The learned Counsel
stressed the absurdity of making it seem proper to say because the
1st defendant attempted
to pay the M35,000 it should be liable to pay
Learned Counsel accordingly urged that the parties
should be given an opportunity to file their pleas and their evidence
heard. He demurred at the plaintiff's resort to this
short cut method which betrays fear on the plaintiff's part to stand
or even to establish its case. He pointed out
that the amount involved is huge and the application haphazard.
He drew attention to matters which would require
ventilation by oral evidence. For instance that the plaintiff
thought the 1st defendant
was trading as the 2nd defendant. Why? It
must, the learned Counsel submitted, show where it derived this from
in the light of
the fact that the 1st defendant had not come into the
picture by way of cheques. Instead at that time there was no
question of one
body trading as the other. Thus the plaintiff should
not be given the opportunity of amending papers without being
In reply Mr. Mphalane conceded that it may be the
case that no opportunity was given to the new defendants but the fact
remains that they were served with
the application and notice in
terms of Rule 10 and Court order on 22-8-89 but they never filed any
answering affidavits. Thus ample
chance was given to them, he said,
but they decided to do nothing.
He pointed out further that it is not true that this
matter cannot fall under Rule 28 on grounds that the sum claimed is
not clear for it is liquidated.
He pointed out that the 1st and 3rd defendants became
co-debtors with the 2nd defendant inasmuch as they undertook to pay a
by the 2nd defendant. He went on to show that the 1st and
2nd defendants are juristic persons on whose behalf the 3rd defendant
acted to the extent that he confused the trading public.
In my view consideration of the proper procedures should
be made before resolving this matter.
In Abdurahman's Estate vs Abdurahman 1956 (3) SA
295 at 297 it is said
" there is good reason why the plaintiff
should not be allowed to split up his action. The
objective of the order.... is to avoid delay, and if it is once
admitted that there
must be a trial, even if only on some of the
claims there is no saving of time. Moreover, the option of such a
course may result
in costs being increased".
It is fruitful to refer to our Rule 28(7)(b)(ii) saying
"If on the hearing of the application for summary
judgment it appears that a defendant is entitled to defend as to part
claim but not to the whole of such claim the Court may give
leave to defend to defendant as to part of the claim and enter
against him as to the balance of the claim, unless he shall
have paid such balance
At page 295 in Abdurahman above van Winsen J says
"A plaintiff cannot avail himself of the procedure
under Rule 22(1) of the Rules of the Cape Supreme Court to obtain
judgment on a part of his claim, viz, in respect of something
less than his whole cause of action and less than the full amount
which part he alleges to be liquidated".
In Hugo Franco(Pty)Ltd vs Gordon 1956 (4) SA 482
at 483 Murray CJ referring to the rule in question says :
"(It) is designed to enable plaintiff whose claim
falls within certain defined classes of claims to obtain judgment
necessity of going to trial in spite of the fact that
defendant has intimated by entering appearance that he intends
raising a defence.
By means of this procedure a defence of no
substance can be disposed of without putting plaintiff to the expense
Murray CJ in Hugo at 484 quoted Abdurahman
above where the Latter shows at 295 that the summary Judgment Rule :-
"embodies an extraordinary remedy and a litigant
who wishes to avail himself of the procedure therein prescribed
himself squarely within the ambit of the Rule.
Going further Murray CJ says at 484 -
". The plaintiff was refused summary judgment
as to the liquidated portion of the whole of his claim,
despite his willingness to restrict his application to that portion".
In CIV\T\158\87 Kloppers Handel ( Pty)Ltd vs Lesotho
Photo Labs and Lighting (unreported) at 9 this Court said
"I have already referred to our Rule 28(7)(b)(ii)
on the point in issue. It is on all fours with Rule 32(6) (b) (ii)
Uniform Rules of Court applying to South African
In none of the authorities cited in my Judgment has
there been specific reference to this particular Rule. Regard being
had to the
fact that the edition of the Uniform Rules I have
consulted is of comparatively more recent origin i.e. 1965 as opposed
to the authorities
which cover cases which occurred in the 1950's I
would take it then that some of the matters covered in the
authorities cited no
longer hold or as stated in Art Printing
Works Ltd vs Citizen (Private) Ltd 1957 (2) SA 95 at 97 :
'The question whether this requirement has been
fulfilled must be answered in reference to the circumstances of each
South African authorities indicate
that summary judgment should be refused once only a
portion of the claim is admitted for otherwise the result becomes
from the point of view of costs in that they become
increased and of time in that delay is not avoided, I however
consider that our
Rule 28(7)(b)(ii) is based on sound principles viz.
as in all pleadings matters which are admitted bring pleadings to
forthwith while those on which there are disputes are
the ones regarding which there need be adduced further evidence to
the court to make a final decision thereon".
Since there has been a concession in any event that the
1st defendant has no bona fide defence to part of the claim
reflected in "NM4" to "NM6" amounting to a
composite sum of M35,500, it is ordered
that summary judgment in that
amount only be entered against it with costs.
The 2nd and 3rd defendants are granted leave to enter
appearance to defend within 14 days and their defences
within 14 days of their entry of appearance to defend. Costs in
this leg of the matter to be decided during the
determination of the case at a subsequent hearing if that be the case
J U D G E 5th February, 1992
For Plaintiff: Mr. Mphalane For Defendants : Mr. Hlaoli
IN THE HIGH COURT OF LESOTHO In the Application
JACOBDS DU PLOOY Applicant
S.C. BOYS 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. Pick 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. Fick 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. Fick 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
applicant 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
Insolvent and the applicant to obtain finance from an institution in
I wish to repeat what I have stated above
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
1. That this vehicle will not be sold in execution.
2. That this is released to our client who
will remove it from its present whereabouts when we have
confirmation of its release from 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
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 :-
(a) 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
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. Fick 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. Fick sought to highlight the absurdity of any
suggestion that the Trust Bank was involved in an underhand scheme.
However sight 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 purchaser 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.Fick
wishes to be reached would not follow because Mr. Buys clearly
said these agreements are fraudulent
"as the true facts are not dislosed 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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