HIGH COURT OF LESOTHO
BANK IN LIQUIDATION Applicant
EDWIN LETOOANE Respondent
by the Hon. Mrs Justice A. M. Hlajoane on 8th September, 2003.
Applicant in this matter seeks to cancel the Hire Purchase Agreement
entered between the Bank and the Respondent. This Application
opposed by the Respondent's wife.
Respondent's defaulting in his monthly instalment is, according to
the Applicant, the ground upon which the relief of cancellation
the Hire Purchase Agreement is relied upon. But this allegation is
vigorously denied by the Respondent's widow.
Application was filed before this Court on the 7th February, 2003 and
moved on the 12th February. 2003. The Interim Order that
authorized the dispensation with the forms and provisions of the
Rules of Court in terms of Rule 8 (22) of the High
Court Rules. It
also authorized the Deputy Sheriff to immediately attach and take
into his possession the motor vehicle belonging
to the Respondent
wherever it may be found and to retain same in his custody pending
finalisation of this case.
return of service by the Deputy Sheriff shows that the Respondent
could not personally be served as he is late, instead the
served on Respondent's wife who even signed on the original papers.
Mr Phoofolo as Respondent's Counsel filed a notice
of intention to
oppose. The answering affidavit was signed and deposed to by the
Respondent's wife as she and the Respondent, were
Community of Property.
pleadings were closed and on the hearing of this matter, the
Applicant raised as his point in limine that the Respondent
file his intention to oppose. He goes further and says that the
Respondent's wife did not object when papers were served
on her, but
only complains when the matter is set for hearing that the Respondent
is dead. According to the Applicant, Respondent's
wife could have
produced a document showing who the heir is and his letter of
Respondent's wife on the other hand raised the following points in
limine In her answering affidavit: - Locus standi - Non-joinder
Material dispute of fact Urgency.
points in limine raised from both sides will be dealt with all at the
same time as they are very much related.
Respondent's wife is saying the Respondent has no locus standi much
as he is deceased. He is said to have died on the 6th March,
borne out by the case number of this case, this Application was only
filed in February of this year, five years after
Semahla v Lephole 1999 - 2001 LLR 729 the Court held that the wife
had no locus standi to sue after the death of her husband
as the heir
(son) was still alive. In the same vein the dead can never be sued in
the absence of any substitution.
point also answers the next point on the issue of non-joinder.
Because the judgment will definitely affect whoever is the deceased's
heir or administrator of his estate, who ought to have been joined.
to Applicant's papers, the agreement between Applicant and
was entered into on the 28th July l995. Applicant says, as and at the
5th December, 2003 Respondent was in arrears in
the amount of
M39,734.02. I am sure he was trying to say 5th December, 2002 as we
are only in the month of September, 2003 not
yet December of 2003.
Annexure "C" referred to reflects 5/12/2002 as the date of
means the Applicant became aware as far back as December, 2002 that
the Respondent was no longer servicing his loan, and what
did he do,
he sat back until February of the following year. Phai Fothoane v
President-Christian Democratic Party C of A (CIV)
No.48 of 2000.
Applicant therefore ought not to have approached the Court on urgent
basis as there was no urgency. He only himself
created the urgency by
taking away the car belonging to the Respondent.
Dispute of Fact
Respondent's wife vigorously disputes that the Respondent had not
serviced his loan to its finality. The statement annexure
reflects the balance as 0.00 and this is where the Respondent's wife
bases her contention. There seems to be two
balances and as such a
lot of explaining ought to have been made to clarify the confusion.
It is for sure, not for the Court to
go into the explaining business.
The dispute cannot be resolved on papers.
trite law that the Court will dismiss an application if it considers
that Applicant should have realised when launching his
that a serious dispute of fact not capable of resolution on papers
was bound to develop. - Room Hire Co.
v Jeppe Street Mansions (Pty)-Ltd, 1949 (3) S.A 1153. On this point
alone the Court is obliged to dismiss the application.
the Applicant contents that by virtue of Respondent's marriage in
Community of Property with his wife, the wife remains the
the administrator of deceased's estate, which means Applicant knew
that the Respondent was deceased, it was decided
otherwise in the
case of Seshoeshoe v Seshoeshoe and Others 1991 -96 LLR 1964.
"Consequently no widow could be the deceased's heir where
deceased had a son or sons."
point also the application has to be dismissed.
there was a rule in this matter which was anticipated in order to
speed up the hearing of the mailer, the rule is discharged
Applicant: Ms Makhera
Respondent: Mr Nteso
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