Katemo v Live Motors (Pty) Ltd and Others (3228 of 2008) [2009] SZHC 33 (19 March 2009)

IN THE HIGH COURT OF SWAZILAND

HELD AT MBABANE Civil Case No. 3228/2008

JACQUELINE KATEMO Applicant

And

LIVE MOTORS (PTY) LTD AND TWO OTHERS Respondent

Coram S.B. MAPHALALA - J

For the Applicant MR. B. J. SIMELANE

For the Respondent MR. N. PILISO

________________________________________________________________________

JUDGMENT

19^th March 2009

_____________________________________________________________

[1] The application before court is for the return of money that the Applicant paid to Respondent’s in the purchase of a motor vehicle SD 425 SN, being a Nissan Sunny. It is common cause between the parties that 1^st Respondent is a company involved in the sale of motor vehicles. It is further common cause that 2^nd and 3^rd Respondents are directors and shareholders of 1^st Respondent.

[2] 1^st Respondent sold to Applicant the motor vehicle on 1^st September 2005 for the purchase price of E36, 000-00 but Applicant was only able to pay E24, 625, 00 in total. Applicant was able to pay further instalments on the motor vehicle and 1^st Respondent applied to court for the attachment and seizure of the motor vehicle.

[3] After the court granted the application 1^st Respondent kept the motor vehicle. 2^nd Respondent informed Applicant that he has sold the motor vehicle which indeed is no longer at 1^st Respondent’s premises.

[4] The Applicant contends that in the premises Respondents are placed in a position where they have the benefit of Applicant’s money in the sum of E24, 625-00 and the motor vehicle or its purchase price of E24, 000-00. It is Applicant’s contention that the Respondents have both the items.

[5] It appears to me after assessing the affidavits of the parties and the arguments of Counsel that the Respondents are correct that Applicant’s claim is an illiquid claim for damages rendering motion proceedings not permissible.

[6] Applicant’s claim is obviously for an illiquid claim for damages in that it arises out of a contract of sale. I also find the dictum in the case of Room Hire Co. (Pty) Ltd vs Jeppe Street Mansions (Pty) Ltd apposite.

[7] In the result, for the afore-going reasons the application is dismissed with costs.

S.B. MAPHALALA

PRINCIPAL JUDGE