Moipone Fleet Leasing Services (Pty) Ltd v Kolisang (CCA/0115/2022) [2023] LSHC 22 (4 May 2023)

# Moipone Fleet Leasing Services (Pty) Ltd v Kolisang (CCA/0115/2022) [2023] LSHC 22 (4 May 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/22/eng@2023-05-04) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/22/eng@2023-05-04) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/22/eng@2023-05-04) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/22/eng@2023-05-04) [ __](mailto:?subject=Take a look at this document from LesLII: Moipone Fleet Leasing Services \(Pty\) Ltd v …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/22/eng@2023-05-04) [ Download DOCX (22.1 KB) ](/akn/ls/judgment/lshc/2023/22/eng@2023-05-04/source) Toggle dropdown * [Download PDF](/akn/ls/judgment/lshc/2023/22/eng@2023-05-04/source.pdf) Report a problem __ * Share * [ Download DOCX (22.1 KB) ](/akn/ls/judgment/lshc/2023/22/eng@2023-05-04/source) * [Download PDF](/akn/ls/judgment/lshc/2023/22/eng@2023-05-04/source.pdf) * * * * * Report a problem __ ##### Moipone Fleet Leasing Services (Pty) Ltd v Kolisang (CCA/0115/2022) [2023] LSHC 22 (4 May 2023) Copy citation * __Document detail * __Related documents Citation Moipone Fleet Leasing Services (Pty) Ltd v Kolisang (CCA/0115/2022) [2023] LSHC 22 (4 May 2023) Copy Media Neutral Citation [2023] LSHC 22 Copy Court [High Court](/judgments/LSHC/) Court registry [Commercial Division](/judgments/LSHC/LSHC-commercial-division/) Case number CCA/0115/2022 Judges [Mokhesi J](/judgments/all/?judges=Mokhesi%20J) Judgment date 4 May 2023 Language English Other documents [Download PDF](/akn/ls/judgment/lshc/2023/22/eng@2023-05-04/attachment/moipone-fleet-leasing-services-pty-ltd-v-kolisang-2023-lshc-22-4-may-2023.pdf) (201.7 KB) * * * Skip to document content _**IN THE HIGH COURT OF LESOTHO**_ **(COMMERCIAL DIVISION)** **HELD AT MASERU CCA/0115/2022** **In the matter between** **MOIPONE FLEET LEASING SERVICES (PTY) LTD APPLICANT** **AND** **PULANE KOLISANG 1****ST****RESPONDENT** **OFFICER COMMANDING MASERU CENTRAL 2****ND****RESPONDENT** **COMMISSIONER OF POLICE 3****RD****RESPONDENT** **THE ATTORNEY GENERAL 4****TH****RESPONDENT** _**Neutral Citation:**_ Moipone Fleet Leasing Services (Pty) Ltd v Pulane Kolisang & 3 others [[2023] LSHC 53](/akn/ls/judgment/lshc/2023/53) Comm. (27TH APRIL 2023) **CORAM: MOKHESI J** **HEARD: 23****RD****FEBRUARY 2023** **DELIVERED: 04****TH****MAY 2023** _**SUMMARY**_ **CIVIL PRACTICE:**_The point of lack of jurisdiction of the court being raised for the first time in the heads of argument- propriety thereof- Held, lack of jurisdiction goes to the core of the court’s competency to hear the matter, and therefore it can be raised at any point, even for the first time on appeal._ **ANNOTATIONS** **Cases:** _Attorney General v Kao LAC (2000 – 2004) 656_ _Director of Public Prosecutions and Others v Pitso Ramoepane and Others C of A (CIV) 49/2020 (14 May 2021) (unreported)_ _Phomolong Investment (Pty) Ltd v KEL Property Company (Pty) Ltd C of A (CIV) 28/2022 (11 November 2022) (unreported)_ _**JUDGMENT**_ [1] The applicant had approached this court on _ex parte_ basis seeking attachment of vehicle in the interim and cancellation of the lease agreement between the parties in the main. The interim relief was granted as prayed on the 29 November 2022. The pleadings were closed, and the matter was finally heard on the 23 February 2023. The 1st respondent’s counsel, Adv. Lesholu raised the issue of this court’s lack of jurisdiction to hear the matter for the first time in his heads of argument. The applicant objected to this point being raised outside of the pleadings, however, despite the applicant’s vehement objection, this court acceded to the 1st respondent argument that it lacks jurisdiction to entertain the matter on account of the existence of arbitration clause in the agreement between the parties. I gave an _ex tempore_ judgment promising to deliver full written reasons in due course. The present are the reasons for upholding the jurisdictional point raised. [2] **Factual Background** The applicant and the 1st respondent on 25 June 2019 entered into a vehicle leasing agreement in terms of which the applicant leased motor vehicles to the 1st respondent at a rental fee of M15380.28 per month. The lease was for the period of forty-eight (48) months. The effect of the lease is that during its currency the applicant retains ownership. In terms of the agreement the 1st respondent was authorized to use the vehicle by hiring it out to the third party being the Government of Lesotho. [3] Aggrieved by what it considered to be breach of the agreement by the 1st respondent in not paying monthly instalments in terms of the vehicle leasing agreement, the applicant instituted the current application _ex parte_. It should be stated that the agreement between the parties contains an arbitration clause in terms of which all disputes arising out of the agreement should be referred to arbitration. [4] When the 1st respondent was served with the _ex parte_ order and the applicant’s founding papers it immediately opposed it and raised a number of the so-called points in _limine,_ namely, material non-disclosure, abuse of _ex parte_ and urgency procedure, non-compliance with financial regulations. However, a point in _limine_ regarding this court’s lack of jurisdiction in view of the existence of arbitration clause, engendered vigorous debates because it was raised by the 1st respondent from the bar. I turn to deal with these points. [5] **Lack of Jurisdiction** As already stated, the leasing agreement which is the subject of these proceedings contains an arbitration clause in terms of which all disputes arising out it are to be referred to arbitration. The applicant contends that the 1st respondent should have raised the point of lack of jurisdiction only in its answering affidavit. I find this contention to be without substance. Jurisdiction is a threshold issue because it speaks to the court’s competency to hear and determine the matter. Jurisdiction is so critical that it can be raised at any stage of the proceedings because where the court lacks jurisdiction it cannot be conferred on it my parties or the court’s inadvertence to raise it. The defence of jurisdiction can even be raised on appeal (**Attorney General v Kao LAC (2000 – 2004) 656 at paras. 13 – 18; Director of Public Prosecutions and Others v Pitso Ramoepane and Others C of A (CIV) 49/2020 (14 May 2021) (unreported).** [6] On the strength of the case of **Phomolong Investment (Pty) Ltd v KEL Property Company (Pty) Ltd C of A (CIV) 28/2022 (11 November 2022) (unreported)** and the authorities cited therein, the existence of an arbitration clause in the agreement between the parties disqualifies the court of law from hearing and determining the parties’ dispute. This conclusion renders it unnecessary to deal with other points in _limine_ raised. [7] The application is dismissed with costs. ___________________________ **MOKHESI J** **For the Applicant: Adv. T. Fiee instructed by Mei & Mei Attorneys** **For the 1****st****Respondent: Adv. R. Lesholu instructed by K. D Mabulu & Co. Attorneys** **For the 2****nd****to 4****th****Respondents: No Appearance** #### __Related documents ▲ To the top >