CIV/A/8/84

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

PAULOSI
MOSALA SELEKE Appellant

v

MICHAEL
MTHEMBU Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Acting Mr. Justice J.L. Kheola on the 10th day of January,
1985.

After
hearing Mr. Mesoabi for the appellant and Mr. Ramodibedi for the
respondent, I dismissed the appeal with costs. These are
now my
reasons for that decision.

On the
17th day of March, 1983, the present appellant made an application
(Ex parte) before the Subordinate Court at Maseru for
an order that .

1. A Rule Nisi be issued returnable on a date to be determined by
this Honourable Court calling upon the Respondent to show cause
why:

(a) The Respondent shall not be ordered Omnia Ante to return to the
Applicant a Massey Ferguson 245 Tractor with Engine No. 152EA39586
DL
and Chassis No. 8T4X201177,

(b) The Respondent shall not be restrained from alienating and
selling or otherwise destroying the said tractor mentioned in (a)

above.

2. That
prayer 1(a) and (b) above should operate as

an
Interim Interdict having immediate effect pending the finalization of
this Application and action which Applicant has instituted
concerning
the aforesaid tractor.

The application was granted as prayed and made returnable on the 11th
April, 1983. In his founding affidavit, the appellant states
that in
August 1982 he and the Respondent entered into an oral agreement in
terms of which the appellant was to give nine (9) oxen
to the
respondent so

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that the
respondent could buy on behalf of the appellant the tractor described
above. In September the oxen were duly delivered
and were valued at
R5,925-00. Further payments were made in November and December, 1982.
The tractor had been delivered to the
appellant in September, 1982.
He used it until the 4th January, 1983 when the respondent despoiled
him.

In his
opposing affidavit, the respondent denies that the oxen were given to
him as the purchase price of the tractor. He bought
4 oxen from the
appellant at an auction he had organized at Thabana-li-'mele. He
personally bought the said tractor for himself
from Lesotho Tractors
and Machinery Company and it was fully paid for through Westbank who
acted as his financiers. He gave the
tractor to the appellant so that
he could plough for people in his area and it was agreed that he
would keep 5% of the takings.
The respondent avers that the appellant
failed to pay the proceeds to him and that was why he finally decided
to retrieve the tractor.
The appellant released the tractor and it
was driven to Maseru by his own son.

On the
return day, i.e. the 11th April, 1983, there was no appearance for
the respondent and the matter was postponed sine die.
On the 22nd
July, 1983, both parties appeared and by consent the matter was again
postponed sine die. The matter was finally set
down for hearing on
the 19th August, 1983. On that day the appellant and his attorney
failed to appear and the magistrate dismissed
the application with
costs. The appellant applied for a rescission of judgment. The
application was dismissed on the ground that
the default was wilful.
In his founding affidavit, the appellant avers that on the 19th
August, 1983 when the matter was to come
before the court he was
informed by the clerk of court that the matter had been set down
before Mr. Matete who was not at that
time present at the court as he
had gone somewhere on urgent official business. He and the respondent
together with Mr. Masoabi
agreed to phone each other later on when
Mr. Matete arrived. They also agreed that all the parties should meet
at 2.00 p.m. They
all left the magistrate's court knowing fully well
that the matter would be heard in

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the
afternoon. He was, therefore, surprised at 2.00 p.m. when he arrived
at the court to find that the respondent, and before a
different
magistrate for that matter, had obtained a default judgment.

The
respondent denies that there was any agreement by the parties to meet
at 2.00 p.m. He avers that he arrived at the court at
9.30 a.m. and
the appellant together with his attorney dodged him until 12.30 p.m.
when he moved the court to dismiss the application.

In his
judgment, the learned magistrate states that when the matter came
before him, he personally contacted Mr. Masoabi by telephone
and
warned him that the matter in which he was appearing was about to be
heard. Mr. Masoabi did not come and the application was
dismissed. It
is com­mon cause that the learned magistrate did telephone Mr.
Masoabi but the latter says the former merely
told him that he was
postponing the case sine die. I do not believe that the learned
magistrate would deceive the attorney of record
that he was
postponing the case sine die and immediately after saying that grant
a default judgment to the respondent. The story
appears to me to be
highly improbable. If it were true, why did the appellant and his
attorney come to court at 2.00 p.m. knowing
fully well that the case
had been postponed sine die.

Another
fatal defect in the application is that the appellant failed to
obtain an affidavit from the clerk of court who informed
the parties
that Mr. Matete was not available and before whom they apparently
agreed that they would come back at 2.00 p.m. Such
an affidavit would
have confirmed the story about the agreement to meet at 2.00 p.m.
However, even if there could be proof that
the parties agreed to meet
at 2.00 p.m. I am of the view that Mr. Masoabi was bound to come to
court as soon as the learned magistrate
te]ephoned him. His failure
to come to court amounts to wilful default. The appellant seems to be
under the wrong impression that
once the case has been set down
before one magistrate no other magistrate may hear the case.

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The fact
is that any other magistrate may hear the case if the magistrate
before whom the case was set is not available.

When the
appeal came before me, I asked both counsels whether the respondent
still had (the tractor in his posses­sion or not.
I took this
step because it is now over one year and seven months since these
proceedings started at the magistrate's court and
mandament van
spolie cannot work where the spoliator is no longer in possession of
the goods and it would be impossible for him
to carry out the order
of the court (Malau v. Dippenaar, 1969 (2) S.A. 59(0)). The onus is
on the spoliator to show that it will
be impossible for him to
restore possession to the applicant. The counsel were very honest to
tell me that the tractor had been
attached and removed by the
messenger of the subordinate court in the execution of a writ in
another matter. I do not think that
it would be possible for the
respondent to restore possession of the tractor to applicant because
it is now in the possession of
a bona fide third person. To
complicate matters further, the regist­ration certificate,
invoices of the company from which
the respondent bought the tractor
and the temporary permit are issued in the name of the respondent, so
that the messenger of court
bona fide believed that the respondent
was the owner of the tractor.

It seems
to me that the appellant realized some time ago that the dispute had
at some stage moved from the realm of possessory remdies
to that of a
vindicatory action and sued the respondent in CIV/T/416/83 on the
24th August, 1983 and claimed damages in the alternative
(See Jivan
v. National Housing Commission 1977 (3) S.A. 890 (W.L.D.)).

For the
reasons I have stated above, I agreed with the trial court that the
default was wilful and I accordingly dismissed the appeal
with costs.

J.L.
KHEOLA

ACTING
JUDGE.

10th
January, 1985.

For
Appellant : Mr. Masoabi,

For
Respondent : Mr. Ramodibeli.