CIV/APN/161/90 IN THE HIGH COURT OF
In the Application of:
DORBYL FINANCE (Pty) Ltd Applicant
ABEL SELLO MOLATI Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on
the 12th day of October. 1995.
On 22nd June, 1990, the applicant herein obtained, exparte, an interim order framed in the following terms:
"1. That the forms and provisions of the Rules of
Court are dispensed with,
2. That a rule nisi do issue calling upon the
Respondent to show cause on the 23rd day of July 1990 at 9.30
a.m. (or so
soon thereafter as the matter may be heard) why an order
in the following terms should not issue:
2.1. That the Deputy Sheriff for the district of Maseru
alternatively any Deputy Sheriff of
the above Honourable Court in whose area of jurisdiction
the hereinafter described goods be found, is hereby directed,
and empowered to search for, seize and attach and retain
in his possession the goods hereinafter described pending the outcome
an action to be instituted by the Applicant against the Respondent
within a period of 45 days from the date of this order alternatively
within a period of 45 days from the date upon which the goods
hereinafter described are attached by the Deputy Sheriff, whichever
date is the later, to wit:
IX used 1987Mercedes Benz1113
IX New 1988Isuzu JC R500Engine
Number:MC01004SA033599NChassis Number :FTR49LT356383SMCG
2.1.3 IX used 1985 Isuzu JCR SOOT Engine Number
:SA018903L Chassis Number : 5296467
2.2 That the Respondent be ordered topay the costs
hereof on attorney
and own client scale.
2.3 Alternative relief.
3. That the order referred to in 2.1, supra.
operate with immediate effect pending the outcome of this
The Respondent intimated intention to oppose
confirmation of the interim order. The affidavits were duly filed by
Inasmuch as it is relevant it is common cause from the
affidavits that the parties concluded a written agreement styled
Sale Master Agreement" (annexure "B").
The agreement was signed by the applicant and the Respondent at
on 20th March, 1987 and at Bethlehem on 19th March,
In pursuance to the agreement (annexure "B")
applicant sold and delivered to the Respondent the three vehicles
to in paragraphs 2.1.1., 2.1.2 and 2.1.3 of the above cited
interim order. The transactions relating to each of the three
were attached to annexure "B" as first schedules
and marked annexures "C", "D" and "E".
terms of the provisions of clause 6 of annexure "B"
ownership in the vehicles was not to pass to the Respondent until
by the applicant of all amounts payable by the
4 former under the agreement (annexure B).
According to annexures "C", "D" and
"E" a total amount of M74,245-44 plus interest was payable
applicant by the Respondent in 24 monthly instalments of
M3,093-56 commencing from 5th October, 1989 in respect of the vehicle
to under paragraph 2.1.1. of the above cited interim order.
As regards the vehicle referred to in paragraph 2.1.2 of the above
interim order, a total amount of M110,333-16 plus interest was
payable in 36 monthly instalments of M3,064-81 with effect from 5th
April, 1988. Starting from 5th October, 1989 a total amount of
M88,638-00 plus interest was to be paid in 24 monthly instalments
M3,693-25 each in respect of the vehicle referred to in paragraph
2.1.3 of the above cited interim order.
In its affidavits, the applicant averred that after the
parties had signed the "Instalment Sale Master Agreement"
"B") and the first schedules thereto (annexures
"C", "D" and "E") the respondent
in his regular payments of monthly instalments and was,
therefore, in arrears. As proof thereof, the applicant attached
"F", "G" and "H" being the
details of payments and arrears in the account of Respondent, as of
May, 1990, in respect of the transactions marked annexures
5 "C","D" and "E",
The applicant further averred that it intended to
institute, against the Respondent, an action based on the "Instalment
Master Agreement "(Annexure "B") read with the
first schedules, claiming an order for payment of all the amounts
alternatively an order cancelling the agreement, the return of
the vehicles forming the subject matter of the agreement and damages.
In its contention, the applicant could only elect which cause to
pursue if it were placed in possession, and obtained a valuation,
the vehicles retained and used by the Respondent. However,
notwithstanding demand, Respondent refused/neglected to either settle
the arrears or restore the vehicles to the applicant. In the
circumstances, the applicant was unable to elect whether or not to
the agreement and sue for damages as it had no means of
ascertaining the conditions of the vehicles forming the subject
this dispute. Hence the institution of these proceedings
for an order as aforesaid.
In his answering affidavit, the Respondent averred that
the "Instalment Sale Master Agreement (annexure "B")
between him and the applicant in March, 1987 was cancelled
by an order of this court under CIV/APN/76/89 and, therefore, no
According to the Respondent, after the "Instalment
Sale Master Agreement" (annexure "B") of March 1987
cancelled he and the applicant concluded other agreements
whereby the applicant sold to him vehicles referred to in annexures
"D" and "E". However, in its
replying affidavit, the applicant denied the averment that the
Sale Master Agreement" (annexure "B")
concluded in March, 1987 was cancelled by the Order of the Court
and reiterated that the vehicles referred to in
the transactions marked annexures "C","D" and "E"
all sold and delivered to the Respondent pursuant to the
"Instalment Sale Master Agreement" (annexure "B")
it had signed in Johannesburg on 20th March, 1988.
I must say I have had the occasion to look at the
decision in CIV/APN/76/89 and I am satisfied that it did not cancel
Sale Master Agreement" (annexure "B")
concluded between the applicant and the Respondent in March 1987. The
averment that it did cannot, therefore, stand.
It is significant that the transactions marked "C","D"
and "E" are First schedules to "Instalment
Agreement". The Respondent avers that the "Instalment Sale
Master Agreement (annexure "B") of March,
cancelled. Thereafter, he and the
applicant concluded other agreements pursuant to which
he bought the vehicles referred to in the transactions marked
and "E". Assuming the
correctness of his averments that he and the applicant concluded
agreements, other than the one of
March, 1987, pursuant to which he
bought the vehicles referred to in the transactions marked annexures
and "E", the onus of
proof vests with the Respondent, on the well known principle of "he
who avers bears the onus of proof", to show the existence
of such other agreements. He has not. On the contrary annexures
and "E" clearly show that they
are all First Schedules of the same "Instalment Sale Master
Agreement" dated 20th
March, 1987. That being so, I am, not
satisfied that the Respondent has discharged the onus that vests on
him. Consequently, I accept
as the truth the story of the applicant
that pursuant to the "Instalment Sale Master Agreement"
the vehicles referred to in annexures
"C","D" and "E" were sold and delivered
to the Respondent and
reject as false the letter's version/denial
on this point.
The applicant's averment that the Respondent defaulted
in the regular payment of his monthly instalments and was, therefore,
was denied by the latter who averred that he was
up-to-date with his payments of the monthly instalments. As proof of
his averment that he was up-to-date with his payments,
the Respondent attached, to the answering affidavit, annexures "NM1"
to "NM17" being copies of cheques and deposit slips by
which he had allegedly made payments of his monthly instalments.
I have had the occasion to look through annexures "NM1"
to "NM17". It is worth mentioning that annexures "NM1"
to "NM9" are in fact not copies of cheques but copies of
counterfeits of cheques. Counterfeits cannot, in themselves, be
conclusive proof of payments. Indeed, a careful examination of
annexures "NM 1" to NM17" reveals that annexure "NM5"
is a counterfeit of the cheque marked annexure "NM12"
whilst annexure "NM15" is a duplicate of the deposit slip
marked annexure "NM16". To its replying affidavit the
applicant also attached annexure "A", a debit note showing
that the cheque of which annexure "NM6" is a counterfeit
was, in fact, dishonoured by the Respondent's bank. Annexures
to "NM17 which clearly include duplications of deposit slips and
dishonoured cheques cannot, in my view, be
proof of the Respondent's
averment that he was up-to-date with payments of his monthly
As it has been pointed out earlier; a certificate
(annexure I) that the Respondent was indebted to the applicant in the
arrears therein disclosed
was, on 18th June, 1990, issued in terms of the
"Instalment Sale Master Agreement" (annexure "B")
of which clause
"14.1 A certificate under the hand of any director
or manager, whose appointment it shall not be necessary to prove, for
time being of the Seller as to any indebtedness of the Buyer
hereuader, or to any other fact shall be prima facie evidence
of the Buyer's indebtedness to the Seller and/or of such other fact,
for the purpose of provisional sentence
or summary judgment
proceedings or for any other purpose." (My underlining)
I have underscored the word "shall" in the
above cited clause 14,1 of the "Instalment Sale Master
"B") to indicate my view that the
provision thereof that a certificate under the hand of any director
or manager of the
Seller as to indebtedness of the Buyer shall beprima facie evidence of such indebtedness is mandatory. The
Certificate (annexure I) . that the Respondent is indebted to the
applicant in the
amounts of arrears therein disclosed was issued
under the hand of the applicant's manager. It is, therefore, a primafacie evidence that the Respondent is so indebted to the
applicant. If the Respondent disputes the contents of
annexure 1 and avers, as he does, that he is up-to-date
with his payments, the onus is on him to prove that he has been
payments of his monthly instalments and is, therefore,
not in arrears. He has not, on a preponderance of probabilities,
this onus. That granted, I am satisfied that the
Respondent had defaulted in the regular payments of his monthly
instalments and was, as of
18th June, 1990, in arrears in the amounts
disclosed in Annexure I.
It is significant that in his answering affidavit the
Respondent denied applicant's averments that it intended instituting,
him, an action claiming, inter alia, an order
cancelling the "Instalment Sale Master Agreement" (annexure
"B") read with annexurea "C",
"E", the return of the vehicles (the subject matter of this
dispute) and damages. I find it difficult
to understand the basis of
the Respondent's denial where the applicant itself says it intends to
institute action against him. In
any event, it is worth noting that
on 7th September, 1990 the applicant did file, with the Registrar of
the High Court, summons commencing
an action against the Respondent.
In my finding, there was no substance in the Respondent's denial that
the applicant intended instituting
an action against him.
It was not really disputed that, at the time the
applicant instituted the present proceedings, the vehicles, which
are, in terms of
clause 6 of annexure "B", its property,
were in the possession, of and being used by, the Respondent. I have
affidavits, that one of the claims the applicant
contemplated, in its action against the Respondent, was a claim for
being so, it was of utmost importance that the vehicles
which were admittedly under the control and use of the Respondent
to the applicant to enable it to determine, for
purposes of assessing damages, the difference between the amounts
terms of the agreement, and the value of the vehicles
upon their return.
On the foregoing, it is obvious that the view I take is
that the application succeeds. The interim order is accordingly
with costs to the applicant, as prayed.
JUDGE 12th October,1995.
For Applicant : Mr. Koornhof For Respondent :
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