CIV/APN/38/85
CIV/APN/40/85
IN THE HIGH COURT OF LESOTHO
In the application of :
SOLOMON PITSO MAKHETHA Applicant
v
JOHN RETIEF BOTHMA Respondent
JUDGMENT
Delivered by the Hon. Chief Justice Mr. Justice T.S. Cotran on the 15th day of October 1985
On the 8th February 1985 the applicant was granted ex-parte Rule Nisi calling upon the respondent to show cause why:-
"1. (a) He should not be ordered to release Isuzu
Truck with Registration letter and No F 1246 to Applicant.
(b) He should not be ordered to account for all the moneys paid thereto by Applicant.
(c) He should not be ordered to pay the cost of this Application.
(d) He should not be restrained from demanding from Applicant comprehensive insurance for the said Isuzu Truck Registration No F 1246.
(e) He should not be ordered to referred (sic) Applicant an amount of R2 378,55 being the payment for the comprehensive insurance.
(f) The above court should not grant such other and or alternative relief deems fit.
Prayer 1(a) Operates with immediate effect as an interim interdict".
If prayer 1(a) meant that the respondent was to deliver the Isuzu truck immediately to the applicant that did not in fact materialize.
Contempt proceedings were taken against the respondent in CIV/APN/40/85 which, however, ended in his favour, with costs,
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in a Judgment delivered by my brother Kheola J on the 25th March 1965.
So we are now back to square one save that I have before me an application by the respondent to be allowed, in exercise of the Court's discretion, to file a further affidavit (with annexures) in terms of Rule 8(12) of the High Court Rules to show that:
a cheque dated 28th February 1985 from the applicant to respondent was referred to drawer, and
negotiations for settlement of the dispute between the parties stretching from 15th April 1985 to the 22nd July 1985 had taken place.
This latter application by respondent was resisted by the applicant whose attorney asked that it be struck off in toto in terms of Rule 29(5). Mr. Edeling for the respondent said he is prepared to concede that paragraphs 5 6 and 7 of the affidavit attached to the notice (relating to the negotiations between the parties) be struck off but submitted that the averment that the applicant's cheque dated the 28th February 1985 in payment of the instalment due had been dishonoured was in order because when the opposing affidavits were filed on the 18th February 1985 there was no dishonour. Mr. Gwentshe contends that if, as the applicant alleges, he had not breached the terms of his agreement with the respondent, the latter cannot justify the applicant's alleged breach by reference to an incident that occurred in the course of judicial proceedings.
I said I will hear arguments on both matters at the same time. Neither the main application, nor the application to file another set of affidavits by the respondent about a dishonoured cheque, present any difficulty to me. As I see from the papers, the dispute between the parties came about in the following
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manner:
The applicant was a businessman engaged in the transport of goods and vegetables between the R S A and Lesotho.
Annexures A and B of the founding affidavit read in conjunction with annexures R2, R3, R4, R5 and R6 of the opposing affidavit indicate that a deal was struck on the 23rd of August 1984 between the applicant and Dukes Garage in Aliwal North and another deal struck on the 30th of August 1985 between the respondent and Dukes Garage in Aliwal North. There is no affidavit from Dukes Garage.
The applicant avers that he bought a new 1984 Isuzu Truck SBR 422 BA "through the agency of the respondent" whilst the
respondent avers that he acquired the truck from Dukes Garage in his own name on hire-purchase terms Wesbank providing the finance which truck was registered in Lesotho in his own name but which he handed over to the applicant to enable him to carry on with his transport business as aforesaid. There is no affidavit from Wesbank.
There was no joint commercial venture between the applicant and the respondent
in the vegetables transport business but there was, it is common cause, an oral
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agreement between them, which the respondent says was motivated by friendship rather than business considerations, about payment by instalments of the balance of the purchase price and the insurance premiums. There is no evidence, however, or at best there is a dispute as to whether the terms of the hire-purchase agreement were incorporated into the oral agreement or that the applicant was aware of its terms or the respondent's breach of some of those terms: indeed there is a ring of truth in what the applicant says, viz, that he traded in a truck valued at R11 000 with Dukes Garage which was reflected as "cash" in the hire-purchase agreement.
In December 1984 the applicant was in trouble with his creditors, but not, as yet, with the respondent. Since the truck was registered in the name of the respondent, the applicant delivered the truck to him to avoid its falling into the hands of his creditors. The applicant, however, appears to have paid off his creditors speedily and demanded from the respondent the return of his truck. The respondent first demurred then initiated an investigation into the applicant's honesty (which he found wanting) then finally refused to hand over the truck. This indicates prima facie that at the time of handing over of the truck to respondent there may not have been any breach or if there was a technical
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breach, the respondent had condoned the same. The application followed, the extended return date of the Rule Nisi stretching from the 25th February 1985 to the 6th September 1985.
Since the truck was handed voluntarily to the respondent there was no question of dispossession and mandamant von spolie could not lie. The application therefore cannot be described otherwise than being one for a mandatory permanent interdict by way of an order of delivery which has the effect of granting applicant specific performance of an oral contract, some of the terms of which are in dispute, and, more importantly, the legal consequences of which cannot be determined before the facts are first resolved by viva voce evidence. Indeed Mr. Edeling says from the bar that the truck is no longer in respondent's possession. In the circumstances no Court will exercise its discretion to grant specific performance by way of motion proceedings and I doubt whether the Court's discretion would have been available if the applicant sought relief by way of action.
The only remedy that the applicant may have is one for damages for breach of contract and he should, I think, have been so advised in the first place or at any rate soon after the opposing affidavit was filed and the issues became clearer.
The rule must accordingly be discharged. There is no necessity to pronounce on the application to adduce a further affidavit because the questions it raises can be canvassed if an action for breach of contract is embarked upon.
Counsel for respondent asked for costs on attorney and client scale for reasons advanced in his written heads of argument. The respondent has made allegations of dishonesty
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against the applicant which were unconnected, or only remotely connected, with their oral agreement about the truck,but says nothing about his own premeditated and admitted dishonesty vis-a-vis the rights of the "owner" under clauses 4 and 8 of the instalment sale agreement. Costs ordinarily follow the event on the usual scale but here I think the Court should show its displeasure by ordering that each party bears its own costs.
CHIEF JUSTICE
15th October 1985
For Applicant : Mr. Gwentshe
For Respondent : Mr. Edeling
