IN
THE APPEAL COURT OF SWAZILAND
HELD
AT MBABANE
CIV.
APPEAL CASE NO.
In
the matter between:
THOMAS
MSONGELWA MABELESA Appellant
and
DORBYL
VEHICLE TRADING AND FINANCE
COMPANY
(PTY) LTD Respondent
CORAM:
Kotze'
P.
Steyn
J.A.
Tebbutt
J.A.
Judgment
(14/96)
TEBBUTT
J.A.
On
16 April 1993 appellant and respondent entered into a written
instalment sale agreement in respect of a 1993 model Mercedes Benz 07
1317 passenger bus. Terms of the agreement was that ownership would
not pass to appellant until the full purchase price had been paid and
that if appellant defaulted in the punctual payment of any instalment
respondent would be entitled to cancel the agreement, take possession
of the bus, retain all payments already made by appellant and claim
payment of all amounts still due to be paid. I shall refer to this as
the Instalment Sale Agreement.
2
On
27 December 1993 appellant and respondent entered into a rental
agreement in which respondent rented to appellant a 1993 model
Mercedes Benz OF 1624 passenger bus. Terms of that agreement were
also that the bus remained the property of respondent and that in the
event of appellant's defaulting in the punctual payment of any
rental, respondent would be entitled to cancel the agreement, retake
possession of the bus, retain all amounts paid and claim any arrear
amounts payable at the date of cancellation. I shall refer to this as
the Rental Agreement.
It
is undisputed that appellant fell considerably in arrears with his
instalment and rental payments in both agreements and respondent
thereupon cancelled the agreements.
On
21 July 1995 respondent applied for and was granted a rule nisi
calling on appellant to show cause why the agreements should not be
declared to be cancelled, and directing the appellant to deliver
forthwith to respondent the two buses or alternatively that pending
the return day of the rule nisi, the Deputy Sheriff attach and hold
the two buses in safe custody. Respondent also claimed payment of the
arrear amounts due on cancellation of the agreements.
Pursuant
to the interim attachment orders, the vehicles were placed in
respondent's possession by the Deputy Sheriff. The vehicles were,
however, taken out of Swaziland and driven across the border into
South Africa.
On
the return day of the rule nisi this fact was put before the court
which ordered that the vehicles be returned to Swaziland. The rule
nisi was extended.
On
the extended return day the appellant moved that the rule nisi be
discharged and applied that the respondent be ordered, by reason of
the removal of the vehicles from Swaziland, that it should pay
appellant's costs on an attorney and client scale. In moving for the
discharge of the rule nisi the appellant took a number of points in
limine, the most important of which was that the agreements provided
that the South African Credit Agreements Act No. 75 of 1980 applied
to
3
the
two contracts. It also contended that as the vehicles had been taken
out of Swaziland, the High Court of Swaziland no longer had
jurisdiction to confirm their attachment or to make the other orders
sought by the respondent.
The
learned Judge hearing the natter dismissed the point in limine but
made an order as to one of the vehicles. I shall refer to that order
in due course. It is against those findings that the appellant now
comes on appeal to this Court.
Although
lengthy heads of argument were prepared - not by Mr. Kades, who
appeared for the appellant - on the point in limine as to the
applicability of the Credit Agreements Act, Mr. Kades quite correctly
in my opinion, did not pursue the point in this Court. I need
therefore say no more about why the Court dismissed it.
The
appeal was therefore directed solely to the order made by the court a
quo.
In
ordering the return of the vehicles to Swaziland, the learned Judge
made it clear to the respondent that if the buses were not in the
Swaziland jurisdiction on the extended return day, the rule nisi
would be discharged. On the extended return day one of the two buses
broke down on its way to Swaziland and was not before the court. The
court a quo ruled that it therefore had no jurisdiction over that
vehicle. The respondent, it held, had voluntarily removed it and in
respect thereof the rule was discharged.
The
factual position in regard to the second vehicle, which was the
Mercedes Benz OF 1624 passenger bus, was that on the extended return
day there was a bus parked outside the court, said to be that bus. It
had, however, been repainted and refurbished and appellant said it
was not the same bus.
There
was no evidence as to engine number of the bus but the chassis number
was the same as that of the bus which was the subject of the Rental
Agreement. The learned Judge's judgment in the court a quo as to that
vehicle reads as follows:
4
"In
respect of the vehicle referred to in 2.2.2. in view of the
uncertainty as to whether the vehicle is before the court or not, I
cannot confirm the attachment which has taken place, but as far as
the merits of the matter is concerned, for the reasons I have given,
it is clear on the merits the points raised in limine must fail the
vehicle is clearly one according to the affidavits which is designed
to carry more than 15 passengers. The provisions of the Credit
Agreements Act do not apply to this vehicle and the other relief
claimed by the applicant is competent. The respondent is therefore
ordered to make payment to the applicant of the amount of E23 441.72
and to return the vehicle described in Paragraph 2.2.2. of the Notice
of Motion to the Applicant.
As
far as costs as concerned, in view of the way in which the Applicant
has dealt with the vehicles which were entrusted to it under the
interim order I am not prepared to make any costs as a sign of my
disapproval and I order that the costs of opposition be paid by the
Applicant to the Respondent."
Mr.
Kades argued that the learned Judge erred in making the order he did
and should have discharged the rule nisi as he did in regard to the
other bus, the subject of the Instalment Sale Agreement. The Court
had ordered the return of a vehicle over which doubt existed as to
whether it was in the jurisdiction of the court or not.
I
do not think that contention is sound. Although the attachment of the
vehicles could not stand or be confirmed because the one was no
longer in Swaziland, and therefore not amenable to further
attachment, and doubt existed as to whether the bus is Swaziland was
the subject of the Rental Agreement, the Court clearly had
jurisdiction, and was entitled to make orders, in respect of the
other relief claimed.
The
appellant is an incola of Swaziland and therefore obviously subject
to the jurisdiction of the Court.
It
did not dispute its default in its payments under the Rental
Agreement. The orders sought against it, including the return of the
bus, the subject of that agreement, could therefore competently be
made. If the bus outside the Court was that bus then it would go back
to respondent. If not,
5
it
was in any event a bus belonging to respondent. No prejudice could
therefore result to appellant by the order for the return of the bus.
As
to the counter claim which, Mr. Kades submitted, the learned Judge
had overlooked, the learned Judge said he could not find positively
that by removing the buses from Swaziland the respondent had acted in
contempt of court. This Court cannot hold, therefore, that the Court
a quo was wrong in making the costs order it did.
The
appeal is dismissed with costs.
(Signed)
TEBBUTT
J.A.
(Signed)
KOTZE'
P.: I agree
(Signed)
STEYN
J.A. I agree
