CIV\APN\430\92
IN THE HIGH COURT OF LESOTHO
In the matter between:
DORBYL VEHICLE TRADING AND FINANCE Applicant
COMPANY (PROPRIETARY) LIMITED
and
VINCENT RHAKISO MASOABI lst Respondent
JOSEPH MASOABI 2nd Respondent
THE COMMISSIONER OF POLICE 3rd Respondent
JUDGEMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 18th day of October. 1993.
This is an application in which the applicant applies that the respondents show cause why they should not be committed to prison for contempt of Court in that they failed to comply with orders issued by Che Court in CIV\APN\430\92 and CIV\APN\429\92.
The order in CIV\APN\430\92 was in the following terms:
Dispensing with the forms and provisions of the Rules of Court and dealing with the matter as a matter of urgency as is contemplated in terms of Rule 8 (22) of the Rules of Court.
That a rule nisi do issue calling upon the respondent to show cause on a date to be determined by the above Honourable Court why an Order in the following terms should not be issued;
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2.1 Directing that the respondent delivers to the applicant (which is authorised to take possession of) all passenger buses belonging to respondent ("the vehicles").
2.2 Failing the return of the said vehicles to the applicant forthwith, the sheriff or his deputy be authorised and directed to
take possession of the vehicles wherever same may be found and to deliver same to the applicant.
2.3 Declaring the applicant to be entitled to exercise the rights afforded the applicant in Clause 15 of the Notarial General Covering
Bond No.23 252. annexure "C"
to the applicant's founding affidavit.
2.4 Directing that the respondent pay the costs of this application on the scale as between attorney and own client.
That pending the return date herein, the Order in terms of 2.1 and 2.2. operate as an interim Order with immediate effect,
Granting further or alternative relief.
The order in CIV\APN\429\92 was in the following terms:
Dispensing with the forms and provisions of the Rules of Court and dealing with the matter as a matter of urgency as is contemplated in terms of Rule 8 (22) of the Rules of Court;
2.1 Declaring the instalment Sale Agreement marked "C" to "G" annexed to the applicant's founding affidavit, to be cancelled.
2.2 Directing the Respondent to deliver to the applicant the following motor vehicles:
2.2.1 1990 AAD Leyland 17\280 Bus with engines number SC021775SA0224270 and chassis number 900039;
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2.2.2 1990 Leyland 17\280 Bus with engine number SA0221637 and chassis number 890066;
2.2.3 1990 MAN 1628 Bus with engine number SC050702997T and chassis number 32106270627;
2.2.4 1989 Leyland 17\28\ Bus with engine number SC02177SA097725 and chassis number K12-0216-890011;
2.2.5 1990 MAN 16201 Bus with engine number SC01069SA021395T and chassis number 32106460646; ("the vehicles");
2.3 Failing the return of the vehicles to the applicant forthwith, the sheriff or his deputy be authorised and directed to take
possession of the vehicles wherever same may be found and to deliver same to the applicant.
2.4 That the respondent pay the costs of this application on the scale as between attorney and client, alternatively directing that the costs of this application be costs in the action or application to be instituted for the determination of the relief set out in 2,1, 2.2 and 2.3 above;
2.5 Alternatively to 2.2. and 2.4 above and pending the outcome of this application, alternatively proceedings for the determination of the applicant's right to the return of the vehicles, the, sheriff or his deputy attach and remove the vehicles wherever same may be found and deliver the vehicles to the Applicant to hold in safe custody, alternatively, to hold the vehicles in his possession under attachment;
2.6 Granting the Applicant further or alternative relief.
That pending the return day herein, the Order in terms of 2.2 and 2.3 alternatively
2.5 operate as an interim Order with immediate effect;
On the 8th February, 1993 the first respondent was brought
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before this Court to show cause why he could not be committed to prison for contempt of court. The matter was argued before me and I came to the conclusion that the applicant had failed to prove that the respondent had been properly served with the orders. The rule was discharged with costs.
As the original files are missing I do not recall exactly what transpired. It is alleged in the present application that I held that the service was not proper because the chief of the village in which the first respondent lives was not present when the deputy sheriff attempted to effect service upon the first respondent. I think this is a complete distortion or a misunderstanding of what I said. How could I say the deputy sheriff of this Court cannot do his job in the absence of the chief of the area concerned?
I think that what I said or intended to say was that where the deputy sheriff is dealing with a difficult judgment debtor he should invite the chief of the area to assist him in the execution of the orders of court. This is only for purposes of evidence when the judgment debtor is charged with contempt of court. If the deputy sheriff had the impression that I meant that in all cases and at all times he must seek the assistance of a chief, that is wrong.
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In the written judgment in that case which is CIV\APN\37\93 Dorbyl Vehicle Trading & Finance (Pty) Ltd. v. Vincent Masoabi and another, delivered on the 10th February, 1993 there is no mention of a chief. The application was dismissed on the ground that the applicant wanted to commit the first respondent before he had been given a chance to be heard. I relied on 'Masechele Khaketla v. 'Mamohau Malahleha & others, C. of A. (CIV) No. 18\1991, 30\1991 and 31\1991 (unreported).
The second reason why the application was dismissed was that there was a dispute of fact which could not be resolved on papers. The deputy sheriff deposed that he served the respondent on a certain date. On the other hand the first respondent said that on that date he was not at his home but at a certain place in the mountains.
In the present applications the deputy sheriff avers in paragraph 9 of his supporting affidavit that on the 17th March, 1993 he approached the first respondent's house from a different direction and found the first respondent at home. He served him with the orders. The first respondent refused to comply with the orders of court on the ground that he would not sign the orders in the absence of the chief and that he could not comply with the orders as the buses which the deputy sheriff was looking for were not at his place but were in different routes delivering
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passengers. He further said that other vehicles could not be taken to court as they were mechanically defective.
The deputy sheriff avers that on some occasions he informed the first and second respondent that he would obtain the services of a breakdown and would tow the vehicles to the High Court. He was informed that should he do so, there would be big problems for him.
He alleges that on one occasion he followed the vehicles referred to in the Court order and when he confronted the drivers to hand over the vehicles in terms of the Order they became very violent and informed him that they would not comply, as they had instructions from the first respondent not to hand over the buses to anyone notwithstanding any Court Orders.
The applicant has attached at return of service at page 22 of the record of these proceedings which indicates that service of the order in CIV\APN\430\92 was effected upon the wife of the first respondent. The return of service is dated the 30th March, 1993.
The first respondent has not filed any answering affidavit. The averments made by the deputy sheriff remain unchallenged concerning the first respondent.
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The second respondent has denied that he ever refused to comply with the Court Orders in question. He alleges that whenever the deputy sheriff found him at the home of the respondent he only asked him about the whereabouts of the first respondent. He further alleges that the matter is res judicata because in CIV\APN\37\93 the question of contempt of court was finalised by this Court, The application for committal was refused with costs to the first respondent.
I take the view that the question of res judicata does not arise because the present applicant only relates to what took place after that application was dismissed. It is clear that after that the deputy sheriff made other attempts to serve the first respondent
particularly on the 17th March, 1993.
In Consolidated Fish Distributors (Pty)Ltd. v. Zive and others, 1968 (2) S.A. 517 at p.522 Baker, A.J. said:
"An applicant for committal needs to show -
that an order was granted against respondent; and
that respondent was either served with the order (Godefroy v. The State (1890) 3 S.A.R. 113; Eaton Robins & Co. v. Voges, 19 C.T.R. 140; Resident Magistrate; Humansdory v. Kosana and Another, 1945 E.D.L. 41); or was informed of the grant of
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the order against him and could have no reasonable ground for disbelieving the information (Burgers v. Fraser, 1907 T.S. 318; Scholtz Estate v. Carroll 23 S.C. 430; Botha v, Dreyer, I.E.D.C, 74; In re Cousins and Another 1911 C.P.D. 463 at pp 470-471; In re The Corinbatore, 18 N.L.R. 179; and
that respondent has either disobeyed it or has neglected to comply with it. Once it is shown that an order was granted and that respondent has disobeyed or neglected to comply with it, wilfulness will normally be inferred (R.v. Mcunu, 1928 N.P.D. 237: R.v. Rosenstein, 1943 T.P.D.. 65 at p. 70; Wickee v. Wickee, 1929 W.L.D. 145 at p. 148) and the onus will then be on respondent to rebut the inference of wilfulness on a balance of probabilities (Watereton v.Waterston, 1946 W.L.D. 334; R.v. Van der Merve, 1952 (1) S.A. 647 (0) AT P. 650; JACOBS V. JACOBS, 1911 T.P.D. 768 at pp. 770-771; Wickee v. Wickee, supra; Reed v. Reed 1911 E.D.L. 157; see also Traut v. Rex 1931 S.W.A. 29 at p. 32)."
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In the present application it has been shown that the Orders in both applications were granted against the first respondent only. No order was ever granted against the second respondent.
The first respondent was not only served with the orders but had earlier become aware of such orders on the 8th and the 10th February, 1993 when the first contempt proceedings in CIV\APN\37\93 were argued before court and judgment was announced. He filed opposing affidavits in both CIV\APN\429\92 and CIV\APN\430\92 as well as in CIV\APN\37\93. There can be no doubt that he has actual knowledge of the Orders of this Court but he is wilfully and deliberately refusing to comply with them.
The order means that the first respondent must deliver to the applicant certain passenger buses described in detail in CIV\APN\429\92. These buses were allegedly sold to the first respondent by the applicant. It is alleged by the applicant that the first respondent is not honouring the terms of the instalment sale agreement between himself and the applicant. The order means that the vehicles were to be repossessed.
The question of whether the respondent's conduct amounts to disobedience of the order or not, must be answered in the affirmative. He has flatly refused to release the vehicles and hand them over to the deputy sheriff. He has instructed his
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drives to refuse to release these buses to the deputy sheriff. He warned the deputy sheriff that if he brought a truck to tow some of the vehicles which are mechanically defective, something very unpleasant would happen to him. The first respondent's conduct is an outright defiance of the order of the Court.
The last question whether the first respondent's conduct is wilful or not, must be answered in the affirmative. He openly refuses to cooperate with the deputy sheriff to hand over these vehicles to him. He has instructed his employees not to cooperate with the deputy sheriff and to refuse to release the vehicles to him.
On the 27th September, 1993 when this matter was postponed to the 12th October, 1993 Mr. Phafane, counsel for the respondents, was in Court. But on the 12th October, 1993 when the matter was argued there was no appearance for the respondents. As I have already indicated above the first respondent has not filed any answering affidavit. The allegations made by the deputy sheriff stand unchallenged. In other words, the onus which was shifted upon the first respondent has not been discharged.
Mr. Buys, attorney for the applicant, submitted that the applicant's onus was to prove that an Order was granted ordering
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or directing the respondents to do something - ad factum Praestandum. This has been found to be "the most solemn and authoritative
form of order" which a Court can make and where it is vital that a person who has been ordered to do something obeys such order. See Verkouteren v. Savage 1918 T.P.D. 62 at pp. 67-68.
The applicant has discharged such onus.
It has been proved that the first respondent was served with the Order but he refused to sign it on the ground that his chief had to be present when the service was effected. On another occasion service was effected on his wife. To me that seems to be proper service. Furthermore the first respondent is aware of the existence of the Order because he has filed opposing affidavits in both main applications. He was in Court during the first contempt proceedings which were dismissed.
Despite all these things the first respondent is continuing to disobey or neglect to comply with the order.
I have come to the conclusion that the applicant has proved wilfulness on the part of the first respondent.
There is no case against the second respondent because the
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order was not granted against him. The application against him is dismissed with costs.
Regarding the first respondent I have formed the opinion that the applicant has proved that he (the first respondent) has committed contempt of court). ,
In the result the first respondent is committed to prison for four (4) months for contempt of court.
The third respondent is ordered to arrest the first respondent whenever he shall be found and commit him to prison in accordance with this Order.
The first respondent shall pay costs on attorney and client scale.
J.L. KHEOLA
JUDGE
18th October, 1993.
For Applicant - Mr. Buys
For Respondents - Mr Phafane.
