ABSA Bank Ltd t\a Bankfin v Ramakatane (CIV\APN 358 of 98) [1998] LSCA 89 (3 August 1998)

1 CIV\APN\358\98 IN T HE H I GH C O U RT OF L E S O T HO In the Application of: A B SA B A NK L TD t\a B A N K F IN Applicant vs JESSIE R A M A K A T A NE Respondent JUDGMENT Delivered by the Hon. Mr Justice M . L. Lehohla on the 3rd day of August. 1998 W h en this matter originated it w as m o v ed ex parte a nd on urgent basis by the applicant represented by Mr Mphalane w ho a p p e a r ed in C h a m b e rs on 7th O c t o b er 1 9 9 6. Rule Nisi w as granted in terms of prayers 2(a) a nd (b). T he rule in prayer 2(a) w as ordered returnable on 2 8 - 1 0 - 9 6. T he applicant h ad asked for an order : 1. D i s p e n s i ng with the f o r ms a nd periods of service of this application on the g r o u n ds of its urgency. 2. T h at Rule Nisi be issued calling u p on the R e s p o n d e n ts (sic) to s h ow cause, if any, on a date a nd the (sic) time to be determined by this H o n o u r a b le C o u rt w hy an order in the following t e r ms should not be m a de absolute a nd final. (a) T he R e s p o n d e nt should not be ordered to h a nd o v er to the Applicant forthwith a M o t or Vehicle, n a m e ly 1 9 96 engine M e r c e d es N o . 1 0 4 9 9 5 0 2 0 2 7 9 55 Chassis N o. 2 1 0 0 5 5 Z A 0 8 7 8 1 1. E 3 2 0 AT B e nz w i th (b) T he R o y al M o u n t ed Police should not be authorised to assist the D e p u ty Sheriff to seize the aforementioned M o t or vehicle f r om the R e s p o n d e nt a nd h a nd it o v er to the Applicant, © T he R e s p o n d e nt should not be ordered to p ay the costs of this application. 3. That prayers I a nd 2(a) a nd (b) to (sic) operate with i m m e d i a te effect a nd as an Interim Order. On 10th October 1 9 96 this C o u rt h ad the following notes to write on the file cover - " Mr M p h a l a ne for applicant informs court that respondent refuses to c o m p ly with C o u rt O r d er issued on 0 7 - 1 0 - 96 a nd further that he h as b e en served with s e c o nd application for c o n t e m pt w h i ch he holds equally in contempt. Mr M p h a l a ne prays that respondent be c o m m i t t ed to prison for c o n t e m pt till he c o m p l i es with C o u rt O r d e r. O r d e r: Police authority ordered to assist the D e p u ty Sheriff to effect service a nd execution of C o u rt O r d er issued on 7-10-96. Further police (are ordered) to assist the D e p u ty Sheriff to c o m m it the r e s p o n d e nt to prison till such time that C o u rt w o u ld be able to determine the extent of the respondent's alleged c o n t e m p t: Accordingly C o u rt confirms the 2 8 - 1 0 - 96 as the return date on w h i ch if the respondent is ready to p r o c e ed is going to be h e a rd in respect of both the m a in application a nd the s u b s e q u e nt one\s of c o n t e m p t. Signed: M. L e h o h la 1 0 - 1 0 - 96 On 1 4 - 1 0 - 9 6; F or Applicant : Mr M p h a l a ne F or R e s p o n d e n ts : Mr P h a f a ne C o u rt intimates to Mr M p h a l a ne that Mr P h a f a ne sought to get clarification relating to orders of 1 0 - 1 0 - 96 a nd 0 7 - 1 0 - 96 w h e r e u p on C o u rt h ad a s k ed h im to look a r o u nd for Mr M p h a l a ne so that things w h i ch s e e m ed confusing or to h a ve b e en dealt with haphazardly could be straightened up in Mr M p h a l a n e 's presence; s u ch as that the C o n t e m pt Application w as not served on respondent a nd other that in the application for joinder w h i ch w as not in Court's possession at the t i me it s e e m ed it w as uncertain in w h o se n a m es the vehicle w as registered yet respondent w as placed in peril of his liberty nonetheless. As things n ow stand Mr M p h a l a ne assures Court that he has briefly b e en in contact with Mr Phafane a nd they h a ve h ad s o me discussion on the basis of w h i ch Court orders : (1) Suspension of the execution of the arrest order of 1st respondent (2) joinder of respondent's wife (3) confirmation of the return date as 28-10-96 (4) That if it should be found, the vehicle subject-matter of the m a in proceedings, should be kept in the custody of the D e p u ty Sheriff in a really safe place (5) If it is not in respondent's n a m es but his wife's she should disclose w h e re it is so that pending finalisation of m a in application it should be dealt with as in 4 a b o v e. Signed: M . L e h o h l a: 14-10-96" Needless to say the Court is at sea regarding w h at reaction the a b o ve orders have fetched. H o w e v er it heard arguments and paid attention to the submissions m a de by Mr M p h a l a ne for the applicant a nd Mr Fischer for the t wo respondents respectively. On papers relating to the main application the applicant relies on the founding affidavit of V i v i an B a r e nd Bester starting at p a ge 4 of the paginated record. The d e p o n e nt Vivian says he is an e m p l o y ee of the applicant; a nd as s u ch is authorised by the applicant to d e p o se to this affidavit a nd to represent the applicant in launching these p r o c e e d i n gs as per a resolution m a r k ed " V B B" attached to the papers. T he d e p o n e nt at the start of p a r a g r a ph 3 at p a ge 5, describes the r e s p o n d e nt as Mr B . K. R a m a k a t a ne an adult m a le w h o se full a nd further particulars are n ot k n o wn to the applicant save that he resides in M a s e r u, Lesotho. T he C o u rt o b s e r v es that the initials B . K. p r e c e d i ng the n a me R a m a k a t a ne are crossed out in b l ue p en a nd replaced by an initial J also written in blue p e n. M o st significantly w h i le on the s a me p a ge w h e re at the e nd of paragraph 1.3 the initials ( V B B) written in b l a ck p en are initialled or countersigned p r e s u m a b ly by the d e p o n e nt the alteration in p a r a g r a ph 3 is neither initialled n or countersigned. T he C o u rt o b s e r v es that the d e p o n e nt h as h o w e v er initialled or countersigned the b o t t om of e v e ry p a ge of his affidavit a nd that in respect of every alteration a p p e a r i ng in his affidavit V i v i an h as a p p e n d ed his signature s a ve the o ne m e n t i o n ed a b o v e. At p a ge 71 the C o u rt o b s e r v es that in her o p p o s i ng affidavit the d e p o n e nt Bertha R a m a k a t a ne deposes for clarity as she says, in paragraph 2, that the first respondent to w h om she w as subsequently joined as 2 nd respondent is her husband. T h us it w o u ld s e em that since her initial m u st of necessity be B the cancelled initials " B K" at p a ge 5 might not h a ve been entirely accidental w h en placed by Vivian in the first place only to be altered by s o m e o ne else subsequently. F or my final assessment of the case bearing in m i nd the usual haste and omissions that a c c o m p a ny preparation of applications of this nature, these observations w o u ld deserve d ue consideration. Vivian avers that on 28th M a r ch 1 9 96 a nd at R a n d b u rg the applicant represented by E u g e ne v an Blerk and Aletta Pretorius (the purchaser) personally entered into a written Instalment Sale A g r e e m e nt for the sale to the purchaser of the M e r c e d es B e nz car referred to in the notice of motion. T he Court has been favoured with c o py of the A g r e e m e nt m a r k ed A n n e x u re "A". It appears from the papers that the purchaser failed to m e et the terms of the A g r e e m e nt w h i ch required of her to p ay R 4 07 5 2 0 - 00 being the total recoverable a m o u nt o w i ng and payable in terms of the agreement in 60 equal monthly instalments of R6 7 9 2 - 00 each with the first such instalment p a y a b le on 1st M ay 1 9 96 a nd m o n t h ly thereafter. W h en it c a me to the notice of the applicant that the purchaser's account h ad fallen into arrears a nd she h ad failed to effect the necessary p a y m e n ts to the applicant the applicant's inquiries led it to believe that the purchaser h ad disposed of the m o t or vehicle in question to the 1st respondent. This w as in breach of the terms of the A g r e e m e nt between the applicant and the purchaser. In fact the selling price received by the purchaser's husband's business styled Exclusive B o ys T o ys C C; w as not utilised to settle the a m o u nt o w i ng to the applicant by the purchaser. Suffice it to say as at the time of d r a w i ng the papers the purchaser w as in arrears with her instalment in the s um of R 21 2 9 7 - 35 and the outstanding a m o u n ts w e re in the total of R 3 81 6 9 7 - 8 0. T h e r e u p on the applicant cancelled the a g r e e m e nt w h i ch h ad b e en entered on 28th M a r c h, 1996. T he deponent avers that having tried relentlessly to discover the w h e r e a b o u ts of the vehicle till recently establishing that it w as in the possession of the I st respondent w ho resides in Lesotho, he points out on behalf of the applicant that (1) the applicant is the o w n er of the m o t or vehicle; (2) a ny right to possession w h i ch the purchaser h a d, h as b e en validly terminated; (3) the respondent is in unlawful possession of the m o t or vehicle; (4) the applicant is entitled to possession a nd delivery of the m o t or vehicle; (5) at no time did the purchaser or Exclusive B o ys T o ys CC h a ve a ny authority f r om the applicant to dispose of the vehicle or h a nd it to a third party. In her o p p o s i ng affidavit the s e c o nd respondent B e r t ha R a m a k a t a ne states that on 17th April, 1 9 96 she a nd her h u s b a nd w e nt to Exclusive B o ys T o ys CC exclusively run by Aletta Pretorius the wife of O k k ie Pretorius. B e r t ha herself b o u g ht a nd paid for the purchase of the m o t or vehicle in question in the s um of R 3 90 0 0 0 - 00 cash price. A n n e x u re ( B R 1) at p a ge 82 is the c o py of the sale invoice dated 17th April, 1 9 9 6. Bertha says on being a w a re of the applicant's claim she contacted a Mr R o n n ie F l y nn w ho is e m p l o y ed as a s a l e s m an by C l o se Corporation a nd w as informed that the vehicle w as delivered to the s h o w r o om floor of C l o se Corporation e nd of M a r ch 1 9 96 by C a r go M o t o rs a well k n o wn M e r c e d es B e nz dealer in the G a u t e ng A r e a. It is the contention of 2 nd respondent that j u d g i ng f r om the o p en a nd u n c o n c e a l ed m a n n er in w h i ch the C l o se Corporation w as dealing with the vehicle a nd the full k n o w l e d ge a nd a w a r e n e ss of B en V an der W a lt of applicant's offices the applicant is e s t o p p ed f r om alleging that 2 nd respondent's acquisition of o w n e r s h ip of this vehicle is questionable. Further that since it is well k n o wn that Exclusive B o ys T o ys CC trades in luxury cars a nd the Applicant at all material times w as a w a re that C l o se Corporation w as dealing with this vehicle as stock in trade with a v i ew to selling it a nd w as h a p py to go along with the a r r a n g e m e nt as long as outstanding balances w e re settled the Applicant is p r e c l u d ed f r om d e n y i ng that Exclusive B o ys T o ys CC h ad the authority to sell this vehicle. S he avers that u n d er the circumstances s he is a b o na fide purchaser a nd c h a r g es that the applicant while h a v i ng c o n d o n ed the practice that they are otherwise estopped f r om regarding as irregular, w as only stung to the quick w h en Exclusive B o ys T o ys C C 's business struck a b ad patch a nd consequently Aletta a nd her h u s b a nd disappeared without race. S he finally states that on 2 nd July 1 9 96 the vehicle in question w as sold to M i ke S o l o m o ns of Seretse A v e n u e, G a b o r o ne in B o t s w a na for a p u r c h a se price of R 3 10 0 0 0 - 00 a nd prays that for this reason alone the application be dismissed with costs. S he says the applicant w as m a de a w a re of the fact that the vehicle h ad b e en sold prior to the filing of this opposing affidavit a nd w as no longer in her possession. T he 2 nd respondent is largely supported by the 1st r e s p o n d e nt in her contentions. T h is support h as a bearing m a i n ly as to the propriety of h a v i ng c h a r g ed the 1st respondent with c o n t e m pt of court. N e e d l e ss to say starting f r om p a ge 58 o n w a r ds J o h a n n es N i c o l a as N el disclaims the purported sale of the vehicle to a S o l o m o ns in B o t s w a n a. He avers that he secured the cooperation a nd efforts of the B o t s w a na police concerning the individual called S o l o m o ns or the alleged address he is said to h a ve b e en resident at. In fact N e) discovered that no such road or street existed in G a b o r o ne B o t s w a n a. He a n n e x ed " J N N 3" a recent central street plan of G a b o r o ne in support of his averments. Ordinarily w h en the C o u rt is in a situation w h e re it d o es not k n ow w h i ch type-writer to believe in m o t i on proceedings the approach advocated in l aw is that the application should be dismissed. B ut in this matter w h e re it could not be said the applicant m u st h a ve k n o wn w h en m o v i ng this application the sort of defences raised w o u ld arise it w o u ld be imprudent to adopt that approach especially w h en gleaning from the D e p u ty Sheriffs averment that there is a suggestion that the 2 nd respondent w as advised by her lawyer to suppress the truth regarding the whereabouts of the vehicle in question. A s s u m i ng the truthfulness of the respondents' averments as to acquisition of the vehicle it w o u ld m a ke 2 nd respondent a b o na fide o w n er though. I indicated at the beginning that the 1st respondent w as put in peril of suffering consequences of a C o n t e m pt of Court charges w h en it turned out that the applicant m ay well h a ve m e a nt his wife w h en applying the cancelled B . K. initials before R a m a k a t a ne at p a ge 5 paragraph 3 because the tenor of the applicant's case is for retrieval of its vehicle from w h o e v er w as keeping it. Available evidence suggests that the car m ay have been in the possession of the 2 nd respondent w ho is the person claiming she acquired it by purchase. T he Court is not satisfied that the defence is such that the applicant m u st h a ve k n o wn the intricate g o i n g s - on w h i ch turn out to h a ve s u r r o u n d ed this matter. C o n s e q u e n t ly the only option through w h i ch issues m ay be ventilated in a m a n n er that w o u ld enable the Court to reach a just decision w o u ld be by converting proceedings herein into a trial w h e re cross-examination w o u ld help achieve that end. 1 order mero motu therefore that (1) p r o c e e d i n gs be converted into trial a nd p a p e rs filed r e m a in as pleadings; (2) the applicant is granted leave to m o ve C o u rt for an alternative claim for d a m a g es in lieu of the value of its car; (3) the prayer for inclusion of an alternative claim a nd the application in pursuit of order 2 a b o ve respectively to be filed a nd m o v ed within 14 d a ys of this O r d e r; (4) all pleadings to be closed by not later than 31st A u g u s t, 1 9 9 8; (5) O r d er (1) of 1 4 - 1 0 - 96 s u s p e n d i ng execution of the arrest order of 1st respondent r e m a i ns of full force a nd effect; (6) there will be no order as to costs. J U D G E 3rd August, 1 9 98 For Applicant: Mr M p h a l a ne For Respondents : Mr Fischer and Mr Phafane