CIV/APN/367/88

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

DORBYL
FINANCE (PTY) LTD Appplicant

V

J.M.
LETHOBA Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 12th day of
February,1990.

On 8th
December 1908 the applicant obtained an interim Court Order before
Molai J. On the following day the applicant sought to
be issued from
the office of the Registrar the Court Order appearing on pages 31 and
32 of the record.

The 3rd
August 1909 was the extended return date of the Rule Nisi which had
been granted a long time previously.

I heard
the matter on the return date.

The case
for the applicant is that he sold a bus to the respondent. The
respondent is in arrears. The applicant's counsel as indeed
the
applicant's papers set out that the respondent says that he had to
pay for repairs on the vehicle hence his failure to pay
the price
fixed for the bus. The respondent is of the view that because of the
expenses he incurred in repairing the

2

vehicle
he was not obliged to effect payments agreed upon between him and the
applicant.

In an
answering affidavit one Molati who is not the respondent avers that
he is entitled to answer the applicant's papers because
he Molati is
the one using the vehicle.

The
applicant's counsel indicated that he was not taking the point that
Molati has no locus standi but rather is impugning the respondent's

attitude.

Annexure
B attached to the applicant's papers shows in clause 6 relied on by
the applicant at page 7 of its affidavit that

"Ownership in the goods shall not pass to the Buyer until
receipt by the Seller of all amounts payable by the Buyer under
this
agreement in respect of such goods."

See
paragraph 4 of the applicant's affidavit.

The
applicant also relies on the breach clause reference to which is made
at page 8 setting out that

"Should the Buyer default in the punctual payment of any amount
falling due in terms hereof .... then in any of the aforesaid
events
the Seller shall have the right to claim immediate payment of all
amounts then outstanding under this agreement whether
or not such
amounts are due at that stage, all of which amounts shall immediately
become due and payable; provided however that
if the Buyer fails to
make payment thereof the rights of the Seller under this Clause 15
shall not be exhuasted and the Seller
shall, notwith­standing the
election to claim immediate payment in terms of this sub-clause, be
entitled to claim and recover
the relief set out in 15.2.2; or in
terms of 15.2.2 cancel this agreement whereupon the Buyer shall be
obliged at its own risk
and expense forth­with to deliver
possession of the goods to the Seller and the Seller shall be
entitled to recover the difference
between ..."

the
amounts set out in paragraphs 15.2.2.1 and 15.2.2.2.

3

It is to
be observed that in terms of paragraph 6 of the opposing affidavit
with which the respondent fully associates himself the
above
averments appearing in the applicant's paragraph 4 of the founding
affidavit are admitted. So are the ones appearing in paragraphs
5 and
6 stating that

"The respondent furthermore in terms of Clause 2.1.2. undertook
to pay all legal costs including costs as between attorney
and his
own client, charges and disbursements incurred by the Seller in
enforcing any of the provisions of this agreement."

and

"The respondent in terms of Clause 24 of the agreement chose
domicilium citandi et executandi for all notices and processes
in
terms of the agreement and in pursuance thereof at the address given
on page 1 of annexure "B" hereto being the address
set out
in paragraph 3 hereof. "

It is
admitted on behalf of the respondent that in pursuance of annexure
"B" i.e. the Instalment Sale Master Agreement,
the
applicant sold and delivered the vehicle to the respondent, and the
parties signed annexure "C" which is the first
schedule of
the Instalment Sale Agreement. The cash price is reflected as
R85,000.00. The agreement constituting annexure C was
entered into on
7th September 1988. The instalments were to be paid at the rate of
R2079.89 per month starting on 5th October 1988.
The total number of
the instalments is reflected as thirty six. The final instalment is
shown as due and payable on 5th September
1991.

In
paragraph 8 it is denied on respondent's behalf that he has committed
any breach of the contract. The reason advanced is that

"the applicant has caused the respondent to incur financial
losses in so far as the vehicle in question is concerned in that

right from the onset (sic) the vehicle in question had numerous
mechanical problems, which problems the applicant: was made well

aware of the same (sec) per the letter dated the 30th December 1988
...."

4

I do not
think that the above assertion detracts from the averment that the
respondent failed to make payment of the instalments
due as
prescribed for in the schedule. See Annexure "D".

In Clause
17.1 of annexure "B" it is specifically stipulated that

"the Buyer shall not cede any of its rights or assign any of its
obligations or lease any of the Goods hereunder without the
prior
written consent of the seller."

It thus
would appear that Sello Abel Molati has neither lot nor part in these
proceedings. The question to be determined is whether
the respondent
is in arrears. I find that he is. If so then in terms of the
agreement the applicant is entitled to judgment.

The rule
nisi is confirmed in terms of sub-paragraphs 2.1 and 2.2 of the Order
of Court that was issued on 8th December 1988.

JUDGE.

12th
February, 1990.

For
Applicant : Mr Steyn

For
Respondent : Mr Mphalane.