1

CIV/APN/84/95

IN THE
HIGH COURT OF LESOTHO In the matter between:

DORBLY
VEHICLE TRADING AND FINANCE Applicant

COMPANY
(PTY) LIMITED

and

MAOELA
KUNI SEKHOANE Respondent

JUDGMENT

Delivered
by the Honourable Chief Justice Mr Justice J.L. Kheola on the 24th
day of April, 1995.

In this
ex parte application the applicant sought an order in the following
terms:

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 Court.

2. 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:-

2.1
Declaring the Instalment Sale Agreement marked "B" to the
Applicant's Founding Affidavit, to be cancelled;

2.2
Directing, the Respondent to deliver to the Applicant, 1 X 1992 Model
AAD 17/290 Sheerline Bus bearing engine number V401015SA002088
and
chassis number 910011

("the
Bus");

2.3
Failing the return of the Bus to the Applicant forthwith, the sheriff
or his

2

Deputy be
authorises ana directed to take possession of the Bus wherever the
same may­be 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 of 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 to 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 Bus, the Sheriff or his Deputy
attach and remove the Bus wherever the same may be
found and to hold
the Bus in his possession under attachment;

2.6
Granting the Applicant further or alternative relief.

3. That
pending the return day herein, the Order in terms of 2.2 and 2.3,
alternatively 2.5, operates as an Interim Order with immediate

effect.

4.
Granting further or alternative relief.

On the
3rd March, 1995 the application was granted as prayed. The rule nisi
was made returnable on the 29th May, 1995. On the 14th
March, 1995
the respondent anticipated the return day to the 17th March, 1995. On
that day the return day was extended to the 23rd
March, 1995 when the
matter was argued before me.

In its
founding affidavit the applicant avers that on the 30th April, 1992
and at Johannesburg, the applicant and the respondent
entered into an
instalment sale agreement (Annexure "B" to the founding
affidavit) in terms of which the applicant sold
to the respondent a
bus for a purchase consideration of R627,657 -84. In terms of the
agreement the ownership of bus

3

would not
pass to the respondent until all the purchase price was paid in full;
the respondent was to pay all monthly premiums punctually;
in the
event of the respondent defaulting in the punctual payment of any
instalment/s or any other amount due in terms of the agreement,
or
fail to observe or perform any of the terms, conditions and/or
obligations of the agreement, the applicant would then be entitled

without prejudice to any other rights, to claim immediate payment of
all amounts payable in terms of the agreement, irrespective
of
whether or not such amounts are then due, or immediately terminate
the agreement, take possession of the bus, retain all payments

already made by the respondent and to claim as liquidated damages
payment of the difference between the balance outstanding and
the
value of the bus.

The
applicant avers that the respondent has failed in payment of the
instalments in terms of the agreement and that as at the 23rd

February, 1995, the respondent was in arrears in the amount of
R220,491-34 and is indebted to the applicant in respect of interest

on arrears in the amount of R77,257-67 (See Annexure "C"
which is the arrears record).

The
applicant submits that it is necessary that the applicant be afforded
the relief sought herein, failing which the applicant
will suffer
irreparable harm. The respondent operates a bus service and the bus
is being used on a daily basis, continually for
the transport of
passengers. Such continual and extensive use causes deterioration of
the bus with the result

4

that the
applicant' s proprietary interest in the bus is being eroded on a
daily basis. The applicant submits that on account of
what is set out
above, this application is one of urgency. With each passing day the
risk of loss and/or damage to the bus persists
and the applicant has
no alternative other than to take immediate steps to protect its
interests. The respondents's attitude is
simply one of refusal to
honour his obligation while continuing to use the bus.

The
respondent has raised points of law in limine. The first point is
that there is no urgency in this application. He avers that
when one
looks at Annexure "C" it is clear that the arrears have
accrued over a considerable length of time. However
the applicant has
waited for a long time without having the agreement cancelled but
suddenly he alleges that the matter has become
urgent. I do not think
that there is any substance in this submission. Clause 17 of the
agreement provides:

"No
relaxation or indulgence granted by the Buyer shall be deemed to be a
waiver of any of the Seller's rights in terms hereof,
and such
relaxation or indulgence shall not be deemed a novation of any of the
terms and conditions of this Agreement."

Under the
terms of clause 17 the applicant did not lose its right to bring this
application ex parte and on urgent basis. The application
was urgent
because the respondent was continually using the bus on daily basis
to transport fare paying passengers and yet he was
not paying the
monthly instalments in terms of the agreement. The bus was
deteriorating and its value was coming

5

down
every day. On the 2nd March, 1995 when this application was launched
the respondent's last payment had been on the 27th December,
1994. On
the 25th January, 1995 the respondent paid with a cheque which was
not paid by the bank but was referred to drawer. As
on the 1st
February, 1995 the arrears and interest amounted to R297,749-01 which
is a very large amount. It seems to me that the
matter had become
extremely urgent.

In
Republic Motors (Pty) Ltd. v. Lytton Road Service Station (Pty) Ltd.
1971 (2) S.A. 516 (R) at p. 518 Beck, J said:

"The
procedure of approaching the Court ex parte for relief that affects
the rights of other persons is one which, in my opinion
, is somewhat
too lightly employed. Although the relief that is sought when this
procedure is resorted to is only temporary in
nature, it necessarily
invades, for the time being, the freedom of action of a person or
persons who have not been heard and it
is, to that extent, a negation
of the fundamental precept of audi alteram partem. It is accordingly
a procedure that should be
sparingly employed and carefully
disciplined by the existence of factors of such urgency, or of
well-grounded apprehension of perverse
conduct on the part of a
respondent who is informed beforehand that resort will be had to the
assistance of the Court, that the
course of justice stands in danger
of frustration unless temporary curial intervention can be
unilaterally obtained."

The
present application was brought ex parte on the basis of urgency. I
have indicated above the reason why it was treated as a
matter of
urgency.

The
second point of law raised by the respondent is that the buyer
(respondent) has consented to the jurisdiction of the Magistrate's

Court. This allegation is based on the terms of clause 23 which reads
as follows:

6

■The
Buyer hereby consents to the jurisdiction of the Magistrate's Court
having jurisdiction over its person in respect of
all proceedings in
connection with this Agreement."

In Jones
and Buckle 'The Civil Practice of the Magistrates' Courts in South
Africa, 8th edition Vol. I at p. 173 the learned authors
say:

"Concurrent
jurisdiction: The consent envisaged under s 45 does not necessarily
oust the jurisdiction of the Supreme Court,
and in the absence of a
clear intention to make the magistrate's court the exclusive forum,
the Supreme Court retains concurrent
jurisdiction. A plaintiff may,
therefore, in the absence of a clear agreement debarring him from so
doing, bring action in the
Supreme Court and recover Supreme Court
costs. This will in particular be the case where the consent is
intended for the benefit
of the plaintiff: the defendant consents to
be bound by the plaintiff's election to sue in the magistrate's
court, but the jurisdiction
of the Supreme Court is not excluded."

See Union
Cities Agency & Trust Co. (Pty) Ltd v. Makubo, 1942 W.L.D. 261;
Standard Bank of S.A. Ltd v. Pretorius 1977 (4) S.A.
395).

It seems
to me that in the present case there is no clear agreement debarring
the applicant from bringing the application in the
High Court of
Lesotho. The consent was apparently intended for the benefit of the
applicant; the respondent consents to be bound
by the applicant's
election to sue in the magistrate's court, but the jurisdiction of
the High Court is not

7

excluded.
Section 6 of the High Court Act 1978 has no application in the
present case because there is no clear agreement debarring
the
applicant from bringing this case in the High Court. Clause 23.1
refers to the fact that the respondent consents to the jurisdiction

of the magistrate's court, it does not say that the parties agree
that the magistrate's court shall have jurisdiction. It clearly

imposes an obligation on the respondent to accept the applicant's
election of the forum.

The third
point of law raised by the respondent is that the procedure followed
by the applicant encroaches on the right of the respondent
to be
heard by a competent court. He submits that when one reads prayers
2.2 and 2.3 of the Notice of Motion they entitle applicant
to remove
the bus from the jurisdiction of the High Court of Lesotho without
furnishing security and without giving the respondent
a chance to
present his story. It seems to me that this point of law has been
dealt with under first point of law. The answer is
that in ex parte
application where urgency has been established a rule nisi is usually
granted and the respondent is heard on the
return day. It is a
procedure provided for by our Rules of Court. It is irrelevant that
the bus has been taken out of the jurisdiction
of this Court. If the
respondent succeeds in this application the rule will be discharged
and that will mean that the bus must
be restored to the respondent.
It is most unlikely that the respondent which has a substantial
business transactions in this country
can defy the order of this
Court.

8

On the
merits the respondent avers that on or about January, 1995 he met an
agent of the applicant and he appraised him of his difficulties
and
it was orally agreed that the arrears would be cleared in three
months' time i.e. end of April, 1995. It came as a surprise
to the
respondent when the applicant moved this way. Furthermore, this was
so agreed because the respondent was disputing the amount
of the
arrears and the agent promised to re-check and give an accurate
reflection of the arrears in the meantime. However, the
accurate
reflection has not come, instead this application was instituted.

The
agreement allegedly reached by the respondent and the alleged
applicant's agent was a breach of the terms of the agreement because

it was not in writing. Clause 18 provides that ' this agreement
constitutes the entire agreement between the parties hereto. No

agreement at variance with the terms and conditions of this agreement
shall be of any force or effect unless it is in writing and
signed by
the parties to this agreement.' The agreement which was allegedly
reached by the respondent and the alleged applicant's
agent was at
variance with the terms and conditions of the original agreement
under which the respondent was to pay monthly instalments.
Under that
agreement he was given a grace to pay the instalments at the end of
this month.

The
respondent says that he is disputing the amount of the arrears given
by the applicant, but he does not state the amount of the
arrears
according to his own records. He has not answered

9

paragraph
10 of the applicant's founding affidavit. The procedure requires that
the answering affidavit should deal with the founding
affidavit
paragraph by paragraph. The respondent has not done this and I am
rather at a loss as to which amount of arrears he is
talking about.
According to the affidavits before me the allegation made in the
founding affidavit that the arrears are in the
amount of R220,491-34
and that the interest on arrears amounts to R77,257-67, has not been
challenged.

The rule
is confirmed in terms of prayer 2.3. It is ordered that the costs of
this application shall be costs of the action to be
instituted for
the determination of the relief set out in prayer 2.1.

J.L.
KHEOLA CHIEF JUSTICE.

24th
April, 1995.

For
Applicant - Mr. Fischer For Respondent - Mr. Matooane.