IN THE HIGH COURT OF LESOTHO In the matter
DORBYL VEHICLE TRADING AND FINANCE Applicant
COMPANY (PROPRIETARY) LIMITED
VINCENT RHAKISO MASOABI 1st Respondent
MASOABI 2nd Respondent
COMMISSIONER OF POLICE 3rd Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 18th day of October. 1993.
This is an application in which the applicant applies
that the respondents show cause why they should not be committed to
contempt of Court in that they failed to comply with
orders issued by Che Court in CIV\APN\430\92 and CIV\APN\429\92.
The order in CIV\APN\430\92 was in the following terms:
Dispensing with the forms and provisions of the
Rulesof Court and dealing with the matter as a matter ofurgency
as is contemplated in terms of Rule 8 (22) ofthe Rules of Court.
That a rule nisi do issue calling upon the
respondentto show cause on a date to be determined by the
aboveHonourable Court why an Order in the following termsshould
not be issued;
Directing that the respondent delivers to
theapplicant (which is authorised to take possession of)all
passenger buses belonging to respondent ("thevehicles").
Failing the return of the said vehicles to
theapplicant forthwith, the sheriff or his deputy beauthorised
and directed to take possession of thevehicles wherever same may
be found and to deliversame to the applicant.
Declaring the applicant to be entitled to exercise
therights afforded the applicant in Clause 15 of theNotarial
General Covering Bond No.23 252. annexure "C"
to the applicant's founding affidavit.
2.4 Directing that the respondent pay the costs of
thisapplication on the scale as between attorney and ownclient.
3. That pending the return date herein, the Order
interms of 2.1 and 2.2. operate as an interim Order with
4. Granting further or alternative relief.
order in CIV\APN\429\92 was in the following terms:
Dispensing with the forms and provisions of the
Rulesof Court and dealing with the matter as a matter ofurgency
as is contemplated in terms of Rule 8 (22) ofthe Rules of Court;
Declaring the instalment Sale Agreement marked "C"
to"G" annexed to the applicant's founding affidavit,
Directing the Respondent to deliver to the
applicantthe following motor vehicles:
2.2.1 1990 AAD Leyland 17\280 Bus with engines number
SC021775SA0224270 and chassis number 900039;
2.2.2 1990 Leyland 17\280 Bus with engine
numberSA0221637 and chassis number 890066;
2.2.3 1990 MAN 1628 Bus with engine
numberSC050702997T and chassis number 32106270627;
2.2.4 1989 Leyland 17\28\ Bus with engine
numberSC02177SA097725 and chassis number K12-0216-890011;
2.2.5 1990 MAN 16201 Bus with engine
numberSC01069SA021395T and chassis number32106460646;
2.3 Failing the return of the vehicles to the
applicantforthwith, the sheriff or his deputy be authorised
anddirected to take possession of the vehicles whereversame
may be found and to deliver same to theapplicant.
2.4 That the respondent pay the costs of this
applicationon the scale as between attorney and
client,alternatively directing that the costs of
thisapplication be costs in the action or application tobe
instituted for the determination of the relief setout in 2,1, 2.2
and 2.3 above;
2.5 Alternatively to 2.2. and 2.4 above and pending
theoutcome of this application, alternatively proceedingsfor
the determination of the applicant's right to thereturn of the
vehicles, the, sheriff or his deputyattach and remove the
vehicles wherever same may befound and deliver the vehicles to
the Applicant tohold in safe custody, alternatively, to hold
thevehicles in his possession under attachment;
2.6 Granting the Applicant further or alternative
3. That pending the return day herein, the Order in
termsof 2.2 and 2.3 alternatively 2.5 operate as an interimOrder
with immediate effect;
the 8th February, 1993 the first respondent was brought
before this Court to show cause why he could not be
committed to prison for contempt of court. The matter was argued
before me and
I came to the conclusion that the applicant had failed
to prove that the respondent had been properly served with the
rule was discharged with costs.
As the original files are missing I do not recall
exactly what transpired. It is alleged in the present application
that I held that
the service was not proper because the chief of the
village in which the first respondent lives was not present when the
attempted to effect service upon the first respondent.
I think this is a complete distortion or a misunderstanding of what I
How could I say the deputy sheriff of this Court cannot do his
job in the absence of the chief of the area concerned?
I think that what I said or intended to say was that
where the deputy sheriff is dealing with a difficult judgment debtor
invite the chief of the area to assist him in the execution
of the orders of court. This is only for purposes of evidence when
judgment debtor is charged with contempt of court. If the deputy
sheriff had the impression that I meant that in all cases and at
times he must seek the assistance of a chief, that is wrong.
In the written judgment in that case which is
CIV\APN\37\93 Dorbyl Vehicle Trading & Finance (Pty) Ltd. v.
Vincent Masoabi and
another, delivered on the 10th February, 1993
there is no mention of a chief. The application was dismissed on the
ground that the
applicant wanted to commit the first respondent
before he had been given a chance to be heard. I relied on 'Masechele
'Mamohau Malahleha & others, C. of A. (CIV) No.
18\1991, 30\1991 and 31\1991 (unreported).
The second reason why the application was dismissed was
that there was a dispute of fact which could not be resolved on
deputy sheriff deposed that he served the respondent on a
certain date. On the other hand the first respondent said
that on that date he was not at his home but at a
certain place in the mountains.
In the present applications the deputy sheriff avers in
paragraph 9 of his supporting affidavit that on the 17th March, 1993
the first respondent's house from a different direction
and found the first respondent at home. He served him with the
first respondent refused to comply with the orders of
court on the ground that he would not sign the orders in the absence
chief and that he could not comply with the orders as the
buses which the deputy sheriff was looking for were not at his place
were in different routes delivering
passengers. He further said that other vehicles could
not be taken to court as they were mechanically defective.
The deputy sheriff avers that on some occasions he
informed the first and second respondent that he would obtain the
services of a
breakdown and would tow the vehicles to the High Court.
He was informed that should he do so, there would be big problems for
He alleges that on one occasion he followed the vehicles
referred to in the Court order and when he confronted the drivers to
over the vehicles in terms of the Order they became very violent
and informed him that they would not comply, as they had instructions
from the first respondent not to hand over the buses to anyone
notwithstanding any Court Orders.
The applicant has attached at return of service at page
of the record of these proceedings which indicates that
of the order in CIV\APN\430\92 was effected upon the
wife of the
first respondent. The return of service is dated the
30th March, 1993.
The first respondent has not filed any answering
affidavit. The averments made by the deputy sheriff remain
the first respondent.
The second respondent has denied that he ever refused to
comply with the Court Orders in question. He alleges that whenever
sheriff found him at the home of the respondent he only
asked him about the whereabouts of the first respondent. He further
that the matter is res judicata because in CIV\APN\37\93 the
question of contempt of court was finalised by this Court, The
for committal was refused with costs to the first
I take the view that the question of res judicata does
not arise because the present applicant only relates to what took
that application was dismissed. It is clear that after
that the deputy sheriff made other attempts to serve the first
particularly on the 17th March, 1993.
In Consolidated Fish Distributors (Pty)Ltd. v. Zive and
1968 (2) S.A. 517 at p.522 Baker, A.J. said:
"An applicant for committal needs to show -
that an order was granted against respondent; and
that respondent was either served with the
order(Godefroy v. The State (1890) 3 S.A.R. 113; EatonRobins
& Co. v. Voges, 19 C.T.R. 140; ResidentMagistrate;
Humansdory v. Kosana and Another,1945 E.D.L. 41); or was
informed of the grant of
the order against him and could have no reasonable
ground for disbelieving the information (Burgers v. Fraser, 1907 T.S.
Estate v. Carroll 23 S.C. 430; Botha v, Dreyer, I.E.D.C,
74; In re Cousins and Another 1911 C.P.D. 463 at pp 470-471; In re
18 N.L.R. 179; and
(c) that respondent has either disobeyed it or has
neglected to comply with it.
Once it is shown that an order was granted and that
respondent has disobeyed or neglected to comply with it, wilfulness
be inferred (R.v. Mcunu, 1928 N.P.D. 237: R.v.
Rosenstein, 1943 T.P.D.. 65 at p. 70; Wickee v. Wickee, 1929 W.L.D.
145 at p. 148)
and the onus will then be on respondent to rebut the
inference of wilfulness on a balance of probabilities (Watereton
1946 W.L.D. 334; R.v. Van der Merve, 1952 (1) S.A. 647
(0) AT P. 650; JACOBS V. JACOBS, 1911 T.P.D. 768 at pp. 770-771;
Wickee, supra; Reed v. Reed 1911 E.D.L. 157; see also Traut
v. Rex 1931 S.W.A. 29 at p. 32)."
In the present application it has been shown that the
Orders in both applications were granted against the first respondent
No order was ever granted against the second respondent.
The first respondent was not only served with the orders
but had earlier become aware of such orders on the 8th and the 10th
1993 when the first contempt proceedings in CIV\APN\37\93
were argued before court and judgment was announced. He filed
affidavits in both CIV\APN\429\92 and CIV\APN\430\92 as well
as in CIV\APN\37\93. There can be no doubt that he has actual
of the Orders of this Court but he is wilfully and
deliberately refusing to comply with them.
The order means that the first respondent must deliver
to the applicant certain passenger buses described in detail in
These buses were allegedly sold to the first
respondent by the applicant. It is alleged by the applicant that the
is not honouring the terms of the instalment sale
agreement between himself and the applicant. The order means that the
were to be repossessed.
The question of whether the respondent's conduct amounts
to disobedience of the order or not, must be answered in the
He has flatly refused to release the vehicles and hand
them over to the deputy sheriff. He has instructed his
drives to refuse to release these buses to the deputy
sheriff. He warned the deputy sheriff that if he brought a truck to
of the vehicles which are mechanically defective, something
very unpleasant would happen to him. The first respondent's conduct
an outright defiance of the order of the Court.
The last question whether the first respondent's conduct
is wilful or not, must be answered in the affirmative. He openly
to cooperate with the deputy sheriff to hand over these
vehicles to him. He has instructed his employees not to cooperate
deputy sheriff and to refuse to release the vehicles to him.
On the 27th September, 1993 when this matter was
postponed to the 12th October, 1993 Mr. Phafane, counsel for the
in Court. But on the 12th October, 1993 when the
matter was argued there was no appearance for the respondents. As I
indicated above the first respondent has not filed any
answering affidavit. The allegations made by the deputy sheriff stand
In other words, the onus which was shifted upon the
first respondent has not been discharged.
Mr. Buys, attorney for the applicant, submitted that the
applicant's onus was to prove that an Order was granted ordering
or directing the respondents to do something - ad factum
Praestandum. This has been found to be "the most solemn and
form of order" which a Court can make and where it
is vital that a person who has been ordered to do something obeys
See Verkouteren v. Savage 1918 T.P.D. 62 at pp. 67-68.
The applicant has discharged such onus.
It has been proved that the first respondent was served
with the Order but he refused to sign it on the ground that his chief
to be present when the service was effected. On another occasion
service was effected on his wife. To me that seems to be proper
service. Furthermore the first respondent is aware of the existence
of the Order because he has filed opposing affidavits in both
applications. He was in Court during the first contempt proceedings
which were dismissed.
Despite all these things the first respondent is
continuing to disobey or neglect to comply with the order.
I have come to the conclusion that the applicant has
on the part of the first respondent.
There is no case against the second respondent because
order was not granted against him. The application
against him is dismissed with costs.
Regarding the first respondent I have formed the opinion
that the applicant has proved that he (the first respondent) has
contempt of court).
In the result the first respondent is committed to
for four (4) months for contempt of court.
The third respondent is ordered to arrest the first
respondent whenever he shall be found and commit him to prison in
The first respondent shall pay costs on attorney and
JUDGE 18th October, 1993.
For Applicant - Mr. Buys For Respondents - Mr
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