IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 1896/2017
In the matter between:
NHLANHLA MBINGO APPLICANT
SHAUN MOODLEY RESPONDENT
Neutral Citation: Nhlanhla Mbingo vs Shaun Moodley (1896/2017)  SHZC 104  (31st May2018)
CORAM: J.S MAGAGULA J
DATE HEARD: 18TH APRIL 2018
DATE DELIVERED: 31st May 2018
 This Matter came before me on a urgent basis and the Applicant herein was seeking an order rescinding an order of Justice T. Mlangeni issued on the 19th March 2018. The matter was initially heard on the 29th March, 2018. On the said date it was postponed to the 4th April 2018 on which date it was again postponed to the 18th April 2018. When the matter was postponed on the 4th April, 2018 counsel for both parties indicated that there were settlement negotiations going on.
 When the matter was called on the 18th April 2018 counsel informed the court that the settlement negotiations had failed to produce any positive results. They wanted the matter postponed so that further papers could be filed on the rescission application.
 Before I could order the postponement of the matter I sought clarity from both counsel regarding what the real bone of contention is as it seemed to me that this was a simple credit sale in which the purchaser (respondent) was failing to pay the purchase price.
 Both counsel explained to the court that whilst there was indeed an intention to enter into an agreement of sale of a motor vehicle, the sale was actually never finalized as the parties never agreed on the purchase price. The seller (applicant) wanted E60,000.00 for the motor vehicle whilst the purchaser, who it was alleged deals in second hand cars, maintained that the purchase price for the motor vehicle cannot exceed E40 000.00 and that this is the price the seller had fixed at first.
 Counsel further explained to the court that what complicated the matter was that the intending purchaser (respondent) was requested to attend to clearance of the motor vehicle with the Swaziland Revenue Authority, payment of Shipment fees and registration thereof. It had been agreed that once the respondent had cleared and registered the car, the amount paid for clearance and registration fees would be deducted from the purchase price.
 It is common cause that the clearance and registration fees amounted to E15,744.03. When the parties could not agree on the purchase price, the respondent, who was now in de facto possession of the motor vehicle demanded a refund of the sum of E15,744.03. In the affidavit opposing the application for rescission the respondent has incorporated a counter – claim for this amount.
 Both counsel were in agreement that the most expedient thing to do now was for the court to make a ruling on the counter claim so that this matter comes to finality and no further legal costs be incurred.
 Since the agreement of sale was verbal and seemingly none of the parties seeks enforcement of that agreement, it seems only fair and reasonable that there should be a restitution order. The respondent is clearly out of pocket as a result of the money he expended on the motor vehicle. He is therefore entitled to an order for refund of the said amount of E15 744.03.
 The court accordingly makes the following order:
9.1 That the Applicant pays to the respondent the sum of E15 744.03
9.2 Costs of suit.
For the Applicant Mr. S. Gumedze
For the Respondent Ms M.Hillary