CIV/APN/360/02

IN THE HIGH COURT OF LESOTHO

In the matter between:

ASSET RECOVERIES (PROPRIETARY) LIMITED APPLICANT

and

PHOLENG MAKARA RESPONDENT

JUDGMENT

Delivered by the Honourable Justice T. Nomngcongo on the 1st March 2005

The applicant approached this court urgently and ex parte seeking the

following orders:-

1. Dispensing with the forms and provisions of the Rules of Court and dealing with the matter as one of urgency as contemplated in terms of Rule 8(22) of the Rules of the High Court.

2. That a Rule Nisi do issue, returnable on the 24th August 2002, calling upon the respondent to show cause why an order in the following terms should not be issued:

3. 2.1 Declaring the Hire Purchase Agreement marked

"A" annexed to the applicant's founding affidavit, to be cancelled.

2.2 The sheriff of this Honourable Court or his deputy, be ordered to immediately attach and take into his possession a tractor described as Massey Ferguson 390 STD 2WD. at premises of the respondent or whenever it may be found and to retain the same in his custody pending the final determination of this application. To give effect to this order, the sheriff is authorized to enter upon the premises at Setleketseng, Matsieng, in the

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district of Maseru and reach for the said tractor, and if entry is resisted to engage the assistance of the Lesotho Mounted Police.

ALTERNATIVELY

2.3 That the sheriff or his deputy be authorized and directed to take into his possession the said vehicle wherever the same may be found and hand it over to applicant.

2.4 That the respondent pays the costs of this application on the scale between attorney and client.

2.5 Granting the applicant further and/or alternative relief.

It is also prayed that prayer 1, 2 and 1.2 operate with immediate effect as interim interdicts pending finalization or alternatively an action for damages.

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When the matter came before my Brother Peete J. he granted prayer 1 only being a dispensation with the ordinary periods of service and ordered that the papers be served on the respondent. I think this was an early indication that His Lordship doubted the alleged urgency of the matter and that definitely it could not be decided ex parte. With respect, I entirely agree with Peete J. It would be manifestly unjust to pounce on an unsuspecting possessor of a vehicle and deprive him of its use on a mere allegation before he has had any chance to put his side of the story. What if it turns out, as it often happens that he has cleared all the indebtedness that he had?

The standard reason advanced for repossession of vehicles bought under Hire Purchase is the deterioration of the vehicle by continued use. The certificate of urgency in casu parrots the same reason. But, surely a vehicle is meant to be used and it is a natural consequence of use that it should depreciate in the course. It starts depreciating from the moment of

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acquisition. I fail to see why this natural process should at some point suddenly assume urgency.

In the instant case the respondent had been in possession of the tractor for more than ten years. After all that time the applicant wants to urgently and ex parte, re-possess the vehicle because it would deteriorate by further use. This only has to be said to be seen for the sham it is.

Now besides settling out in detail circumstances that render an application urgent, an applicant also has to set out reasons why he claims that he cannot obtain substantial relief in an hearing in due course. (Rule 22 (b)). In the present case besides merely stating speculatively that the course of justice "might" be defeated if notice is given to respondent, does not make any attempt at all to show that he would not get substantial relief in the ordinary course. In fact, it seems to me that the applicant herein would have been for better off claiming for the balance on the price of Hire

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Purchase agreement rather than a tractor with more than ten years behind it.

This and the appeal Court have on innumerable occasions which I do not even care to mention pronounced on the misuse of Rule 22 regarding urgency. The clearly was never any urgency in this case and for that reason alone it ought to be dismissed. I will however proceed to deal with the matter of prescription which the respondent raised in lieu of an answer in terms of Rule 8 (10), (c).

The respondent says the applicant's cause of action which arose in 1989 has since prescribed in terms of the Prescription Act. No.6 of 1861. Section 3 of the Act provides:

"3. Except as hereinafter is excepted, no suit or action upon any bill of exchange, promissory note on, as other liquid document of debt of such a nature as to be capable of sustaining a claim for provisional

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sentence shall be capable of being brought at any time after the expiration of eight years from the time when the cause of action upon such liquid document first accrues: provided that nothing in this Act contained shall extend to or affect any mortgage bond, general or special or any judgment of any Court in Basutoland or elsewhere".

The applicant's answer is that he is not seeking an order for payment of money owing but the return of property that has always been its own as is the nature of all Hire Purchase goods - it is an application rei vindicatio. He contends therefore that the Prescription Act has no application in the circumstances.

In my view section 3 of the Prescription Act applies where a suit or action is

1. based upon the following documents:

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1. a bill of exchange

2. a promissory note

3. any liquid document of debt and;

2. any of those documents must be of such a nature as to be capable of a claim for provisional sentence.

A Hire Purchase Agreement is an acknowledgment or undertaking by a purchaser of indebtedness to a seller for a stated price and stated instalments and date of payment thereof. It is certain with regard to these matters as a requirement of law and one does not need any extrinsic evidence other than those contained in the document itself to prove indebtedness. (See section 6 of the Hire Purchase Act No.27 of 1974). It is clear in my mind therefore that it is a liquid document of debt, one that is capable of sustaining a claim for provisional sentence. It does not matter that the subject of the transaction was property; what matters is the nature

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of the document itself viz. whether if provisional sentence were sought on it such a claim was capable of being sustained.

It was put thus in RICH V LAGERWAY 1974 (4) SA 748 (AD) at 754 G - H (per Wessels J.A.)

"In my opinion, however, it is not the type of transaction, which determines whether the related document signed by the debtor is one upon which provisional sentence may properly be granted. If the document in question upon a proper construction thereof, is an unconditional acknowledgment of an indebtedness in an ascertained amount of money, the payment of which is due to the creditor, it is one upon which provisional sentence may properly be granted."

The argument that the claim is a vindicatory one looses sight of the fact that the determining factor is not the type of transaction but the nature of

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the document upon its proper construction and what it is capable of yielding viz, a claim for provisional sentence.

The application stands to fail, also because the claim, grounded as it is upon a liquid document of indebtedness has prescribed. It is dismissed with costs.

T. NOMNGCONGO

JUDGE

For Applicant : Mr Malebanye

For Respondent : Mr Letsika

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