Lesotho Bank in Liquidation v Letooane (CIV/APN/47/2003 )

Case No: 
CIV/APN/47/2003
Media Neutral Citation: 
[2003] LSHC 99
Judgment Date: 
8 September, 2003

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CIV/APN/47/2003

IN THE HIGH COURT OF LESOTHO


In the Matter Between:


LESOTHO BANK IN LIQUIDATION Applicant

And

PHOMOLO EDWIN LETOOANE Respondent


JUDGMENT


Delivered by the Hon. Mrs Justice A. M. Hlajoane on 8th September, 2003.


The Applicant in this matter seeks to cancel the Hire Purchase Agreement entered between the Bank and the Respondent. This Application is opposed by the Respondent's wife.


The Respondent's defaulting in his monthly instalment is, according to the Applicant, the ground upon which the relief of cancellation of the Hire Purchase Agreement is relied upon. But this allegation is vigorously denied by the Respondent's widow.


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The Application was filed before this Court on the 7th February, 2003 and moved on the 12th February. 2003. The Interim Order that was granted authorized the dispensation with the forms and provisions of the Rules of Court in terms of Rule 8 (22) of the High Court Rules. It also authorized the Deputy Sheriff to immediately attach and take into his possession the motor vehicle belonging to the Respondent wherever it may be found and to retain same in his custody pending finalisation of this case.


The return of service by the Deputy Sheriff shows that the Respondent could not personally be served as he is late, instead the papers were served on Respondent's wife who even signed on the original papers. Mr Phoofolo as Respondent's Counsel filed a notice of intention to oppose. The answering affidavit was signed and deposed to by the Respondent's wife as she and the Respondent, were married in Community of Property.


After the pleadings were closed and on the hearing of this matter, the Applicant raised as his point in limine that the Respondent failed to file his intention to oppose. He goes further and says that the Respondent's wife did not object when papers were served on her, but only complains when the matter is set for hearing that the Respondent is dead. According to the Applicant, Respondent's wife could have produced a document showing who the heir is and his letter of appointment.


The Respondent's wife on the other hand raised the following points in limine In her answering affidavit: - Locus standi - Non-joinder Material dispute of fact Urgency.


The points in limine raised from both sides will be dealt with all at the same time as they are very much related.


Locus Standi


The Respondent's wife is saying the Respondent has no locus standi much as he is deceased. He is said to have died on the 6th March, 1997. As borne out by the case number of this case, this Application was only filed in February of this year, five years after Respondent's demise.


In Semahla v Lephole 1999 - 2001 LLR 729 the Court held that the wife had no locus standi to sue after the death of her husband as the heir (son) was still alive. In the same vein the dead can never be sued in the absence of any substitution.


This point also answers the next point on the issue of non-joinder. Because the judgment will definitely affect whoever is the deceased's heir or administrator of his estate, who ought to have been joined.


Urgency


According to Applicant's papers, the agreement between Applicant and


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Respondent was entered into on the 28th July l995. Applicant says, as and at the 5th December, 2003 Respondent was in arrears in the amount of M39,734.02. I am sure he was trying to say 5th December, 2002 as we are only in the month of September, 2003 not yet December of 2003. Annexure "C" referred to reflects 5/12/2002 as the date of the statement.


Which means the Applicant became aware as far back as December, 2002 that the Respondent was no longer servicing his loan, and what did he do, he sat back until February of the following year. Phai Fothoane v President-Christian Democratic Party C of A (CIV) No.48 of 2000. Applicant therefore ought not to have approached the Court on urgent basis as there was no urgency. He only himself created the urgency by taking away the car belonging to the Respondent.


Material Dispute of Fact


The Respondent's wife vigorously disputes that the Respondent had not serviced his loan to its finality. The statement annexure "C" reflects the balance as 0.00 and this is where the Respondent's wife bases her contention. There seems to be two balances and as such a lot of explaining ought to have been made to clarify the confusion. It is for sure, not for the Court to go into the explaining business. The dispute cannot be resolved on papers.


It is trite law that the Court will dismiss an application if it considers that Applicant should have realised when launching his application that a serious dispute of fact not capable of resolution on papers was bound to develop. - Room Hire Co.


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(Pty) Ltd v Jeppe Street Mansions (Pty)-Ltd, 1949 (3) S.A 1153. On this point alone the Court is obliged to dismiss the application.


Though the Applicant contents that by virtue of Respondent's marriage in Community of Property with his wife, the wife remains the heiress as the administrator of deceased's estate, which means Applicant knew that the Respondent was deceased, it was decided otherwise in the case of Seshoeshoe v Seshoeshoe and Others 1991 -96 LLR 1964.


"Consequently no widow could be the deceased's heir where deceased had a son or sons."


On this point also the application has to be dismissed.


Because there was a rule in this matter which was anticipated in order to speed up the hearing of the mailer, the rule is discharged with costs.


A. M. HLAJOANE

JUDGE


For Applicant: Ms Makhera

For Respondent: Mr Nteso