WESTBANK, A Division of First Rand Limited V Thabiso Khetheng (CIV/APN/261/2021) [2022] LSHC 293 (9 November 2022)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CIV/APN/261/2021 In the matter between WESTBANK LTD, a division of First Rand Limited APPLICANT AND THABISO KHETHENG 1st RESPONDENT OFFICER COMMANDING: O/C VTD & CRCU LESOTHO 2ND RESPONDENT THE COMMISSIONER OF POLICE 3RD RESPONDENT ATTORNEY GENERAL 4TH RESPONDENT Neutral Citation: Wesbank LTD, a division of First Rand Limited v Thabiso Khetheng and 3 others [2022] LSHC 293 Civ (09 NOVEMBER 2022) CORAM HEARD DELIVERED : : : HLAELE J. 07 NOVEMBER 2022 09 NOVEMBER 2022 SUMMARY: Release of motor vehicle held by Commissioner of Police to title holder. Seller relying on instalment sale to prove ownership of motor vehicle. ANNOTATIONS: CITED CASES: 1. Standard Lesotho Bank Limited v Kopano Holdings CCT/0039/2017) [2021] LSHC 120 COM (8th November 2021) 2. Lesotho Bank (In Liquidation) V Teboho A. Mphahama T/A Joala Boholo Restaurant CIV/T/543/2003 3. Levy v Levy (494/89) [1991] ZASCA 81; 1991 (3) SA 614 (AD); [1991] 2 All SA 407 (A) (30 May 1991 4. National Executive committee of the Lesotho Congress for Democracy (L. C. D.) and others v Makharilele (CIV/APN/296/05, CIV/APN/82/01) STATUTES 1. High Court Rules BOOKS 1. Herbstein and Van Winsen. The Practice of the High Courts of South Africa. 5th Edition Vol1. 2009. Juta JUDGMENT HLAELE J [1] INTRODUCTION 1.1 This is an application wherein the applicant is seeking this court to grant it an order which will enable it to take possession of a certain motor vehicle described in the papers before court as a Mercedes Benz C200K, Chassis Number WDD204041R000256, Engine Number 27195030916506, South African Registration Number XWB070GP. 1.2 To this end, the Applicant has framed his Notice of Motion in the following language; 1. Dispensing with the forms and service as provided for in the rules of this Honourable Court and disposing with this matter by way of urgency in accordance with Rule 8 (22)(a). 2. A rule nisi is issued calling on the Respondent to show cause on a date to be determined by this Honourable Court, why the following order should not be made final: 2.1 That the vehicle 2007 MERCEDES BENZ C200K CLASSIC Chassis Number WDD2040412R000256, Engine NUMBER 27195030916506, Registration Number XWB070GP, be kept under the custody of the 2nd Respondent until finalization of this matter; 2.2 Declaring that the Applicant is entitled to receive the said motor vehicle into its possessions as the title holder and owner. 2.3 An order directing the 2nd Respondent to hand over the Vehicle 2007 Number MERCEDES Chassis WDD2040412R000256, 27195030916506, Registration Number XWB070GP together with the relevant keys into the possession of the Applicant or its authorized representative(s); 3. Pending the return date, the orders in paragraphs 1 and 2.1 shall serve as interim relief with immediate effect. CLASSIC Number 200K Engine BENZ C 4. Directing the Respondents to pay the cost of this application. 5. Granting such further and/or alternative relief as may be necessary in the circumstances. 1.3 The matter came before Mokhesi J on the 27th July 2021. He made a determination that the matter is not urgent and should be treated in terms of the ordinary rules of Court. 1.4 During the proceedings in open court on the 7th November 2022, an application for the amendment of prayer 2.3 was made from the bar. It was subsequently abandoned. He also ordered that the vehicle in question should be held in the custody of the 2nd Respondent pending finalization of the main application. [2] WITHDRAWAL. 2.1 At the commencement of the hearing, Advocate Molapo moved from the bar, an application for withdrawal of the Respondents defense/opposition to the granting of the orders sought by the Applicants. This is supposedly under Rule 43 (i) of the High Court Rules. The rule allows the withdrawal of a matter before it has been set down, otherwise thereafter, the withdrawal can only be by consent of both parties or by leave of Court.1 The rule is framed thus: “A person instituting any proceedings may at any time before the matter has been set down and thereafter by consent of the parties or by leave of Court, withdraw such proceedings.”2 The court retains the discretion whether or not to grant the withdrawal.3 2.2 Advocate Molapo submits that there are two reasons he applies for a withdrawal of Respondents opposition of the matter. The first is that the car which is the subject matter of this litigation, is no 1 Lesotho Bank (In Liquidation) V Teboho A. Mphahama T/A Joala Boholo Restaurant CIV/T/543/2003 2 Rule 43(1) of the High Court Rules 1980 3 Herbstein and Van Winsen. The Practice of the High Courts of South Africa. 5th Edition Vol1. 2009. Juta longer in the custody of the 2nd and 3rd Respondents. This is despite the order of Mokhesi J dated 27th July 2022. The relevant portion of the order reads as follows: The vehicle 2007 Mercedes Benz C200K, Chassis Number WDD204041R000256, Engine Number 27195030916506, South African Registration Number XWB070GP be kept under the custody of the 2nd Respondent until finalization of the matter. 2.2.1 The second reason advanced by Advocate Molapo for the withdrawal of the defense is that the 1st Respondent has since sought and obtained an order in the Commercial Division of this Court, against the one Vatiswa Qatyana for the payment of monies incurred for the repairs of the motor vehicle which is the subject matter of this case. As such having obtained this order, he will subsequently issue a writ to attach the car. This, he argued, rendered his defense academic. 2.3. The withdrawal was not opposed by the Applicants. Advocate Cronje confirmed that they do not oppose the withdrawal. Be that as it may, this court is still enjoined to pronounce itself on the withdrawal. As has been shown above the court exercises a discretion whether to grant it or not. The court is however, not in the business of forcing litigants who would otherwise not want to pursue their case to do so. Sound reasons should be given by the withdrawing party so as to avoid costs. 2.4 As has been said, Adv Molapo has given two reasons that have shown the Respondents sudden disinterest in the matter. These reasons go to the root of his defense. I also note that the Applicants would suffer no prejudice in the event that this application for withdrawal is granted. I accordingly grant the application for withdrawal. I should be quick to add that the Notice was made from the bar. The Respondent having not filed a notice to that effect. 2.5 The net effect of the withdrawal of the respondent’s case is that the matter stands unopposed, there being no opposing pleadings which the court can rely on. [3] ISSUES FOR DETERMINATION Post the granting of the withdrawal, two issues remained outstanding. These are: 1. Has the applicant made out a case for the granting of the order sought? This is against the backdrop that the seeking and grating of a withdrawal sought by an opponent does not translate to the automatic granting of the order. 2. The issues of costs. [4] IS THE APPLICANT THE TITTLE HOLDER OR OWNER OF THE CAR? 4.1 The Applicant has sought an order in the notice of motion the effect of which would render him as the owner of the car entitled him to be handed over the car that is by order of court in the custody of the 2nd and 3rd Respondent. This Court has advised itself not to enter the terrain of inquiring whether the car is still indeed in the custody of the 2nd and 3rd Respondent, this not been the issues this Court in terms of the Notice of Motion. 4.2 the burden of proving that the Applicant is entitled to the release of the car to its possession rests on the Applicant. In discharging this, Advocate Cronje made the following below mentioned submissions. [5] APPLICANT’S SUBMISSIONS. 5.1 In establishing ownership of the vehicle in issue, Advocate Cronje for the Applicant argued as follows; a. That during or about 14th August 2016, the Applicant and one Vatiswa Qatyana (Ms Qatyana) entered into a written installment Sale Agreement in terms of which Ms Qatyana purchased the vehicle in question from the Applicant for an amount of R129,890.78 as per Annexure WB24. The agreement was in the format of contract, an electronic form 4 As per para. 9 of the Founding Affidavit. of contract, hence the signatures and the contracting parties does not appear on the printed document. b. That in terms of the said Installment Agreement, the Applicant remained the titleholder and owner of the vehicle5 until such time that M/s. Qatyana complied with all her contractual obligations, namely, paying for the vehicle in issue in full. c. As per the Installment Agreement, M/s Qatyana was contractually prohibited from; a) Removing the vehicle from the boarders of the Republic of South Africa6; b) Allowing any other person to make use of the motor vehicle; and c) Selling, letting, loan, pledging or alienating the motor vehicle to any person. d. That M/s Qatyana has failed to pay her installments in full, this in turn translates to the ownership not being transferable to M/s Qatyana, and; e. That the Applicant has, as a result of her failure to honour her contractual obligations, obtained an order in the South African courts against Ms. Qatyana granting it and conferring upon it, and confirming the ownership and possession of the vehicle in issue as being vested to the Applicant. He was quick to add that this court is not invited to enforce the court order of a foreign court. He was merely exhibiting the order 5 As per an attached Registration Certificate marked as WB3 which shows the name of the title holder as the Applicant. 6 Page 32 of the paginated record item 7.4 of the Terms and Conditions for an installment agreement as proof that the Applicants had taken steps against her breach. 5.2 Having considered the above submissions by the Applicant, I am inclined to conclude that the Applicant has discharged the onus placed on it to prove its entitlement to the ownership and possession of the vehicle in issue. [5] COSTS 5.1 The purpose for awarding costs is well known. It is to indemnify the successful party for the expenses to which he had been put through by having been unjustly compelled to litigate or defend litigation. In the case of Standard Lesotho Bank Limited v Kopano Holdings7 Mathaba J had this to say on the issue of costs: The basic principles governing the awarding of costs are that: (a) unless expressly otherwise stated, it is in the discretion of the presiding judicial officer to award costs, (b) costs follow the results, meaning that costs are generally awarded to a successful party. In exceptional cases, the Court may depart from the application of the rule that costs follow the results and deprive a successful party his or her costs. Again, the learned authors of Herbstein and Van Winsen, the Civil Practice of the High Court of South Africa have, based on judicial decisions, summarized circumstances under which a Court would deviate from the latter principle. It is not necessary to discuss these circumstances for present purposes. 5.2 In the case where one of the parties withdraws from pursuing of the case either as the dominis litis or as the defense(respondent), it is not ordinarily the function of the court to force a person to institute or proceed with an action against his or her will or to 7 Standard Lesotho Bank Limited v Kopano Holdings CCT/0039/2017) [2021] LSHC 120 COM (8th November 2021) investigate the reasons for abandoning or wishing to abandon one.8 5.3 Rule 43 of the High Court rules deals with 2 scenarios in relation to the award of costs where there has been a withdrawal. The first is where there is a consent by the parties regarding the issue of costs. This is in terms of Rule 43(1) (c). The second scenario is where there is no consent for the payment of costs occasioned by a withdrawal, Rule 43(1) (d) is instructive in this regard. Interpreting this section, Herbstein and Van Winsen9 provide that a party who withdraws from litigation is akin to an unsuccessful party. The Court of appeal put it as thus in the case of National Executive committee of the Lesotho Congress for Democracy (L. C. D.) and others v Makharilele10 It is trite that where a litigant withdraws the matter after another party has opposed it and filed its affidavits accordingly, very sound reason must exist why the other party should not be entitled to costs. The second reason advanced by Advocate Molapo for obtaining a withdrawal smacks of abuse of court process. He raised his initial defence well aware that he will use the same as a cause of action in a different court and obtain a somewhat similar outcome. The Applicant was caused to incur the cost of filing and arguing this matter to finality as if there had been opposition to it whereas the Respondent had no interest to seeing his opposition through. This is demonstrated by the filing of a case the outcome of which is to thwart the applicant’s access to the car. It is for this reason that I 8 Levy v Levy (494/89) [1991] ZASCA 81; 1991 (3) SA 614 (AD); [1991] 2 All SA 407 (A) (30 May 1991) 9 Herbstein and Van Winsen. The Practice of the High Courts of South Africa. 5th Edition Vol1. 2009. Juta 10 National Executive committee of the Lesotho Congress for Democracy (L. C. D.) and others v Makharilele10 (CIV/APN/296/05, CIV/APN/82/01) find that the Respondent should pay costs occasioned by his filing of opposition to this application. [6] CONCLUSION I find that the Applicant has made out a case and proved that he is the owner of the car which is the subject matter of this application. He has done this through the instalment sale agreement entered into between them and Vatiswa Qatyana annexed to the proceedings, the delivery receipts that proves that the said Vatiswa received the car, and the certificate of registration that shows that the applicant is the title holder. I also find that the withdrawal was an abuse of court process and as such attracts costs. [7] ORDER I therefore make the following order; 1. The application is granted as prayed with costs. ------------------------------ M. G. HLAELE JUDGE Applicant: Adv P. R Cronje with Mr. S. E Pule Respondents: Adv L. D Molapo 10