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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