Molapo v Deputy Sheriff and Another (CIV/APN 108 of 93) [1994] LSCA 34 (23 February 1994)

1 C I V / A P N / 1 0 8 / 93 IN THE HIGH COURT OF LESOTHO In the matter between JONATHAN LEPOQO MOLAPO A p p l i c a nt and DEPUTY SHERIFF DORBYL V E H I C LE TRADING AND F I N A N CE COMPANY (PTY) LIMITED 1st Respondent 2nd Respondent JUDGMENT Delivered by the H o n o u r a b le Mr Justice T M o n a o a t hi A c t me Judge on the 23rd day of February 1994 The hearing of today follows upon an a p p l i c a t i on for r e- instatement of a rule nisi which had lapsed in August 1993 On the 2nd M a r c h, 1994 the rule was r e - i n s t a t e d. I did not then award costs if my r e c o l l e c t i on is good on this aspect I made an additional order that the main a p p l i c a t i on for Stay of E x e c u t i on 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 m a t t e r, by the Chief Justice on the 10th March 1993 The A p p l i c a nt had sought in his N o t i ce of M o t i on the f o l l o w i ng O r d e rs "1 That a R u le Nisi be issued and r e t u r n a b le at the time to be d e t e r m i n ed by this H o n o u r a b le C o u r t, c a l l i ng upon the R e s p o n d e nt to show c a u s e, if a n y, why (a) S t r i ct c o m p l i a n ce w i th the r u l es of Court shall not be d i s p e n s ed w i t h, (b) Writ of e x e c u t i on in C I V / T / 5 2 1 / 92 in the a m o u nt of M 1 7 6 . 7 18 43 shall not be stayed p e n d i ng the d e t e r m i n a t i on of the p r e s e nt v a l ue of the v e h i c l e, 1 9 90 ERF E6 p a s s e n g er b u s, e n g i ne n u m b er M K 0 1 0 4 1 S A 0 5 9 2 8 7 4, c h a s s is n u m b er 66926 a l r e a dy r e p o s s e s s ed by the R e s p o n d e nt h e r e i n, (c) S e c o nd R e s p o n d e nt shall not be d i r e c t ed to s u b m it m o n t h ly s t a t e m e n ts of d e b i ts and c r e d i ts to A p p l i c a n t 's A t t o r n e ys h e r e in in order that R e c o n c i l i a t i on of S t a t e m e nt could be m a d e, (d) Cost of this a p p l i c a t i on in the event of o p p o s i ng the s a m e, (e) Further and/or a l t e r n a t i ve relief 2 That prayer l(a) and (b) o p e r a te with i m m e d i a te effect as interim orders pending the o u t c o me of this a p p l i c a t i on 1 h a ve found that there are three fundamental problems with the A p p l i c a t i on F i r s t l y, the A p p l i c a nt h e r e in and the Defendant in C I V / T / 5 2 1 / 92 was not able to s u b s t a n t i a t e, with f a c t s, 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 N o v e m b er 1992 It will be observed from its own file ( C I V / T / 5 2 1 / 9 2) that the amount awarded was in the sum of M 1 7 6 , 7 18 42 with interest at the rate of 18 2 5% The amount in payment and p a y m e n ts made by A p p l i c a nt would have a bearing in the m a t t e r, and to p e r s u a de this C o u r t, that there are good reasons for r e c o n c i l i a t i on of s t a t e m e n ts as applied for in prayer l(c) of the Notice of M o t i on by the A p p l i c a nt As said before A p p l i c a nt was not able to show in his p a p e rs what he had paid in order to even debate the prayer for r e c o n c i l i a t i on f r u i t f u l l y, The second problem w h i ch this Court found was that, much as A p p l i c a nt himself c o n c e d e d, that the 2nd Respondent was entitled to value the vehicle in terms of the agreement signed by the p a r t i e s, that in itself cut the ground from u n d er the feet of the A p p l i c a nt T h is n e c e s s a r i ly m e a ns that there w as no b a s is u p on w h i ch the A p p l i c a nt would ask for a second v a l u a t i on as alter the v e h i c le w as r e p o s s e s s ed W h en this is read with the first ground u p on w h i ch the A p p l i c a nt was found w a n t i n g, the s i t u a t i on b e c o m es e v en m o re s e r i o us in c o n d u c i ng a g a i n st the c o n f i r m a t i on of the a p p l i c a t i on The third p r o b l em w h i ch I c o n s i d e r ed to be the most c r u c i al is related to the f o l l o w i ng s t a t e m e nt in the s u p p o r t i ng A f f i d a v it n a m e ly p a r a g r a ph 8 4 "I wish to m a ke it very clear that I do not deny that I am i n d e b t ed to Second R e s p o n d e nt but my point is that my p r o p er b a l a n ce can only be d e t e r m i n ed w h en r e c o n c i l i a t i on of s t a t e m e n ts have b e en m a d e, hence the r e a s on I am a p p l y i ng for stay of e x e c u t i on and not for r e s c i s s i on of j u d g m e nt in C I V \ T \ 5 2 1 \ 92 " I q u e s t i o n ed m y s e lf and the p a r t i e s' C o u n s e l s, as to what p r i n c i p le there is upon w h i ch the m a t t er would h a ve to be opened up after one year and three m o n t h s. By o p e n i ng up I m e an to i n v e s t i g a te the c o r r e c t n e ss of the j u d g m e nt sum a w a r d ed in the s u m m a ry j u d g m e nt I hold that it would be a d i f f e r e nt story if the m a t t er came up for r e s c i s s i on of j u d g m e n t, or r e v i ew (in a p p r o p r i a te c a s e s) or on appeal I s u p p o se that I w o u ld have found that the d i s p u te about the sum c l a i m e d, if it a r o se in an a p p l i c a t i on for r e s c i s s i on of j u d g m e n t, would n o r m a l ly be a good f o u n d a t i on for an a l l e g a t i on that the A p p l i c a nt D e f e n d a nt had a b o na f i de d e f e n ce and an e n t i t l e m e nt to d e f e nd t he m a t t er It is c l e ar t h e r e f o re t h at t he v i ew I t o ok w as t h at t he a p p l i c a t i on for s t ay of e x e c u t i on o u g ht n ot to s u c c e ed I d i s m i s s ed t he a p p l i c a t i on and I d i s c h a r g ed t he r u le w i th c o s ts to t he 2 nd R e s p o n d e nt I a l so a w a r d ed c o s ts of t he a p p l i c a t i on f or r e i n s t a t e m e nt of t he r u le to t he 2nd R e s p o n d e nt T MONAPATHI A c t i ng f u d ge For t he A p p l i c a nt Mr T H l a o li (T H l a o li & Co ) F or t he R e s p o n d e nt Mr S B u vs (Du P r e e z, L i e b e t r au k Co )