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CIV/APN/108/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between

JONATHAN
LEPOQO MOLAPO Applicant

and

DEPUTY
SHERIFF 1st Respondent

DORBYL
VEHICLE TRADING AND FINANCE

COMPANY
(PTY) LIMITED 2nd Respondent

JUDGMENT

Delivered
by the Honourable Mr Justice T Monaoathi Actme Judge on the 23rd day
of February 1994

The
hearing of today follows upon an application for re­instatement
of a rule nisi which had lapsed in August 1993 On the 2nd
March, 1994
the rule was re-instated. I did not then award costs if my
recollection is good on this aspect I made an additional
order that
the main application for Stay of Execution be heard within 30 days On
the 2nd March 1994 the Order was extended to the
3rd March 1994 and
then to today

This rule
nisi was granted, in this matter, by the Chief Justice on the 10th
March 1993 The Applicant had sought in his

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Notice of
Motion the following Orders

"1 That a Rule Nisi be issued and returnable at the time to be
determined by this Honourable Court, calling upon the Respondent
to
show cause, if any, why

1. Strict
   compliance with the rules of Court shall not be dispensed with,

   
   

2. Writ
   of execution in CIV/T/521/92 in the amount of M176.718 43 shall not
   be stayed pending the determination of the present value
   of the
   vehicle, 1990 ERF E6 passenger bus, engine number MK01041SA0592874,
   chassis number 66926 already repossessed by the Respondent
   herein,

   
   

3. Second
   Respondent shall not be directed to submit monthly statements of
   debits and credits to Applicant's Attorneys herein in
   order that
   Reconciliation of Statement could be made,

   
   

4. Cost
   of this application in the event of opposing the same,

   
   

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5. Further
   and/or alternative relief

   
   

2. That
   prayer l(a) and (b) operate with immediate effect as interim orders
   pending the outcome of this application

   
   

I have
found that there are three fundamental problems with the Application
Firstly, the Applicant herein and the Defendant in CIV/T/521/92
was
not able to substantiate, with facts, as to how much he stood owing
as at before the Order for Summary Judgment and how much
he stood
owing as after the Order for Summary Judgment made on the 16th
November 1992 It will be observed from its own file (CIV/T/521/92)

that the amount awarded was in the sum of M176,718 42 with interest
at the rate of 18 25% The amount in payment and payments made
by
Applicant would have a bearing in the matter, and to persuade this
Court, that there are good reasons for reconciliation of
statements
as applied for in prayer l(c) of the Notice of Motion by the
Applicant As said before Applicant was not able to show
in his papers
what he had paid in order to even debate the prayer for
reconciliation fruitfully,

The
second problem which this Court found was that, much as Applicant
himself conceded, that the 2nd Respondent was entitled to
value the
vehicle in terms of the agreement signed by the

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parties,
that in itself cut the ground from under the feet of the Applicant
This necessarily means that there was no basis upon
which the
Applicant would ask for a second valuation as alter the vehicle was
repossessed When this is read with the first ground
upon which the
Applicant was found wanting, the situation becomes even more serious
in conducing against the confirmation of the
application

The third
problem which I considered to be the most crucial is related to the
following statement in the supporting Affidavit namely
paragraph 8 4
"I wish to make it very clear that I do not deny that I am
indebted to Second Respondent but my point is that
my proper balance
can only be determined when reconciliation of statements have been
made, hence the reason I am applying for stay
of execution and not
for rescission of judgment in CIV\T\521\92 " I questioned myself
and the parties' Counsels, as to what
principle there is upon which
the matter would have to be opened up after one year and three
months. By opening up I mean to investigate
the correctness of the
judgment sum awarded in the summary judgment I hold that it would be
a different story if the matter came
up for rescission of judgment,
or review (in appropriate cases) or on appeal I suppose that I would
have found that the dispute
about the sum claimed, if it arose in an
application for rescission of judgment, would normally be a good
foundation for an allegation
that the Applicant Defendant had a

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bona
fide defence and an entitlement to defend the matter

It is
clear therefore that the view I took was that the application for
stay of execution ought not to succeed I dismissed the application

and I discharged the rule with costs to the 2nd Respondent I also
awarded costs of the application for reinstatement of the rule
to the
2nd Respondent

T
MONAPATHI

ACTING
JUDGE

For the
Applicant Mr T Hlaoli (T Hlaoli & Co )

For the
Respondent Mr S Buvs (Du Preez, Liebetrau k Co )