CIV/APN/110/86 CIV/APN/117/86

IN THE HIGH COURT OF LESOTHO
In the
Applications of:.

HANK STELZER Applicant

VISUAL PROBLEM CENTRE Applicant

v

ROSE MPHO RAMABITSA Respondent

HENRY
STELZER Respondent

JUDGMENT

Delivered by the Hon Mr. Justice J.L. Kheola on the 6th
day of June. 1986

Although the two applications were consolidated and
argued at the same time. I shall set out what orders were sought in
each of them.

In CIV/APN/110/86 Hank Stelzer was the applicant and the
respondent was Rose Mpho Ramabitsa. The application was brought as an
urgent
ex-parte application for an order in the following terms:

"(a) (i) That Respondent be and is hereby ordered
to return to Applicant forthwith he keys. Personal files and Society
files
referred to in paragraph 6 of the Applicant s Affidavit.

(ii) And also to account to Applicant the monies
realised for sale of the 2 Passap Knitting Machines sold by
Respondent and referred
to in paragraph 7 of Applicant's Affidavit.

(b) That the Sheriff or his lawful Deputy takes the said
keys and money for the 2 Passap Knitting Machines sold by Respondent
and
delivers them to Applicant;

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3. 
   That Respondent be and is hereby ordered to
   refrain
   from obstructing Applicant in the
   performance of his duties;

   
   

4. 
   That Respondent be and is hereby called upon
   to show
   cause within 21 days why this Interim

   
   

Order or Rule shall not be made final; and that she
shall give notice of her intention to oppose confirmation of the
Order and may
anticipate the return date within 48 hours."

The Rule Nisi was issued on the 4th April, 1986 and made
returnable on the 28th April, 1986. After several extentions of the
rule
the matter was finally argued before me on the 19th May, 1986.

In CIV/APN/117/86 Visual Problem Centre represented by
Rose Mpho Ramabitsa was the applicant and Henry Stelzer was the
respondent.
The application was brought as an urgent ex-parte
application for an order in the following terms:-

"1.
That a Rule Nisi issue, returnable on the date and time to be

determined by this Honourable court, calling upon the
Respondent to show cause (if any) why:-

1. 
   The Respondent shall not be restrained from
   removing,
   taking with him, alienating and or
   unilaterally
   affecting change of ownership of a Toyata Hilux
   Van,
   registration A 8478, the lawful property of and
   registered
   in the name of the Applicant;

   
   

2. 
   The Respondent shall not be ordered to place the
   said
   vehicle in the hands of the Registrar and or
   Deputy Sheriff,
   pending the outcome of this
   Application;
   

   
   

3. 
   The Respondent shall not be ordered to hand over
   the
   bank books and books of accounts to the Applicant;

   
   

4. 
   The Respondent shall not be ordered to account for
   the
   finances which have at all material times been in
   his
   custody;

   
   

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(e) The Respondent shall not be arrested by the
local
Police and or ordered to pay reasonable security
to the
Registrar to found jurisdiction pending the
outcome of this
application;

(f) The Respondent shall not be ordered to restore to
the
Applicant, Applicant's equipment utilised by the
blind
people under the care and supervision of the
Applicant;

(g) The Respondent shall not be ordered to pay costs
of
this application;

(h) The Applicant shall not be given such further and
or alternative relief.

2. That prayers 2 (a), (b), (c), (d) and (f) operate as
an interim order with immediate effect."

The application was heard on the 4th April, 1986. The
rule nisi was granted as prayed and returnable on the 14th April,
1986. After
several extentions the matter was finally argued before
me on the 19th May, 1986.

The applicant in CIV/APN/110/86 is the treasurer of the
applicant in civ/APN/117/86. Rose Mpho Ramabitsa is the director of
the Visual
Problem Centre (hereinafter to be referred as the Centre).
The Centre was registered as a society under the Societies Act of
1966
on the 15th July, 1983. According to Article 5 of the Centre's
constitution the Executive Committee shall consist of the Director,
the Secretary, the Treasurer and three (3) Regional Representatives
Article 5 seems to. be in direct conflict with Article 16 which
provides that the committee of the Centre shall consist of the
following members:

Director

Mrs Rose Mpho Ramabitsa P.O. Box 2395, MASERU

Secretary

Mrs Mapeete Mokhosi, P.O. Box 111, MASERU

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Treasurer

Mr. Henry D. Stelzer, P.O. 2395, MASERU

Rose Mpho Ramabitsa has attached to her founding
affidavit in CIV/APN/117/86 an extract of minutes of a meeting of the
Visual Problem
Centre Committee held at Maseru on the 4th April,
1986. At that meeting she was given authority to make the application
for an interdict
against Henry Stelzer. This resolution is being
challenged by Stelzer on the ground that there was no quorum. Article
6 (d) provides
that one half of the members of the Executive
Committee shall constitute a quorum. The contention of Stelzer is
that three members
form a quorum while Ramabitsa contends that two
members form the required quorum. At the meeting referred to above it
seems that
there were only two members, i.e. the Director and the
Secretary who signed the minutes. The minutes are rather ambiguous
because
under the heading showing who were present the word "Quorum"
has been inserted.

Article 5.1 provides that the Executive Committee shall
consist of no more than six members and not less than three members.
The Director
is given the right to appoint any person (s) who he/she
deems fit and proper to fill the other portfolios in the Executive
Committee.
It is quite clear from the constitution that only three
members of the Executive Committee whose names appear in Article 16
have
been appointed. The Director (Ramabitsa) shall hold office for
an indefinite period. Hank Stelzer has given the names of Bernard
Mahase and Lelimo as members of the Executive Committee of the
Centre. Rose Ramabitsa has denied this and has averred that the names
of the members of the Executive Committee appears in the
constitution. It is surprising that Stelzer has not found it
necessary to
obtain a supporting affidavit from either Mr. Lelimo or
Mr. Mahase.

I come to the conclusion that the meeting at which a
resolution was passed giving authority to the Director of the Centre
to make
the

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application for an interdict against Stelzer was
properly convened and that there was a quorum of two members of the
Executive Committee.

In founding affidavit in CIV/APN/110/86 the applicant
deposes that on the 23rd March, 1986 the respondent took the keys to
the filing
cabinet which contained all the Centre's files and his
personal files and has refused to let him have access to the said
files and
still continues to do so up to the date the application was
lodged. This conduct of the respondent is to the detriment of the
business
of the Centre and has brought the business of the Centre to
a standstill. He further alleges that the respondent has sold or
disposed
of certain Passap Machines valued at approximately
R4,000-00. The applicant is one of the founders of the Centre and has
contributed
the sum or equipment worth a quarter of a million maloti
to the Centre.

In her opposing affidavit the respondent has admitted
that she

took the keys to the filing cabinet after discovering
that a number of files had gone missing and the applicant could not
account
for same when she confronted him with the information, which
she verily believed, that applicant had removed the said files as
well
as some other property of the Centre and was keeping same at
Hotel Victoria where applicant stays without intending to return them
to the Centre. She denies that she removed the applicant's personal
files.

She avers further that the two Passap Machines have been
sold for R3,190-00 to people who do business with the Centre and that
the
machines were sold to them so as to strengthen business
relationship with them. Part of the money from the sale of the
machines was
deposited in the Standard Bank account and the rest is
being used at the Centre' to settle accounts and to buy other
recessities
like wool and food and for the everyday running of the
Centre as applicant refuses to sign bank forms to enable respondent
to withdraw
money from the bank, and respondent has to rely on cash
in hand for the Centre's daily needs.

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The respondent further deposes that the most substantial
assistance to the Centre so far has come from the Canadian Embassy,
the Irish
Consulate and the Unitarian Services of Canada which
con­tributed a total sum of M40,000-00 which was used to
construct the building
which houses the centre. The alleged sum of a
quarter of a million maloti is even far in excess of the value of the
assets of the
Centre.

She further avers that the applicants fear that the
equipment of the centre may be lost is unfounded. It is the
applicant's actions
which are likely to result in the loss of the
property of the centre. On the 25th March, 1986 the applicant wrote a
letter (Annexure
"A" to the opposing affidavit) addressed
to various business firms with which the Centre had dealing,
informing them that
as from the 5th April, 1986 he was resigning as
Treasurer of the Centre. He informed the business firms that the
Director of the
Centre, Mrs Rose Ramabitsa would be responsible for
all future business transaction. He warned the business firms that he
would not
be res­ponsible for any debts, obligations and/or
commitments made by any individual other than himself. On the 4th
April, 1986
just a day before the date he intended resigning from the
centre, the applicant changed the ownership of a motor vehicle Reg.
No.
A 8478 which lawfully belonged to the centre and registered it in
his name.

The respondent further avers that on the 4th April, 1986
the applicant withdrew R2,800-00 from the two accounts of the Centre
and
failed to account to her or to the Board of the Centre as to how
the money was expended. Even after his resignation and after he
had
been served with a court order (Annexure "B" to the
opposing affidavit) the applicant bought a cheque book and withdrew
huge amounts of money totalling R10,554-70 from the Centre's funds in
the Standard Bank between the 7th and 11th April. 1986 (Annexure
"D"
to the opposing affidavit).

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As far as I can see the applicant has not filed any
replying affidavit. 'Rule 8 (11) of the High Court Rules 1980
provides that within
seven days of the service upon him of the
answering affidavit the applicant may deliver a replying affidavit.
The purpose of the
replying affidavit is to adduce any piece of
testimony which is relevant to the issue and which serves to refute
the case put up
by the respondent in his onswering/opposing affidavit
(the Civil Practice of the Superior Courts in South Africa, 3rd
edition, p.72).
It follows that the case put up by the respondent in
her answering affidavit has not been refuted. That case is that she
discovered
that a number of the Centre's files had gone missing and
that she has information, which she verily believed, that the
applicant
had removed them and was keeping them at Hotel Victoria
where he lived. She admits that she took the keys to the filing
cabinet and
told the applicant that she would not allow him to have
access to the filing cabinet until he had accounted fully to her on
what
he had done with the files and other property belonging to the
centre.

It is further alleged that the applicant withdrew large
sums of money for which he has account to nobody. All these serious
allegations
have not been denied. In fact as a result of a Court
Order in CIV/APN/ 117/86 some property belonging to the Centre was
recovered
from the applicant at Hotel Victoria.

It seems to me that the respondent, as the Director of
the Centre, was entitled to take the keys of the filing cabinet in
order to
protect the records of the Centre which were being removed
and taken to the wrong place by a person who was intending to resign
from
being the Treasurer of the Centre. On the 23rd March, 1986 when
the respondent took the keys the applicant was intending to resign
on
the 5th April, 1986. He had no right to remove the property of the
Centre and keep it in his hotel room. The fact that some property
was
retrieved by order of the Court shows that respondent's fears were
not unfounded. The most

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serious allegation against the applicant is that after
the cheque books of the Centre were taken from him by Court Order he
subsequently
bought another cheque book and withdrew large sums of
money. This serious charge against the integrity of the applicant has
not been
denied and the Court is bound to accept it as the truth. The
res­pondent has attached a bank statement (Annexure "D"
to her answering affidavit) which tends to confirm her allegations. I
use the word "tends" because the dates on the bank
statement do not refer to the dates on which the cheques were drawn
but to the dates on which the account was debited with the amounts,
the cheques could have been drawn long before the dates appearing on
the bank statement. On the other hand they could have been drawn
on
the dates shown on the statement and cashed on the same dates.

It was the duty of the applicant to file a replying
affidavit and refute these allegations if they are not true. The
respondent has
denied that she took any personal files of the
applicant. It is most improbable that the applicant could leave his
personal files
at the Centre when he had made up his mind to resign
from the Centre and had even removed some property that did not
belong to him.

The applicant claims to be the administrator of the
Centre and that he has contributed about a quarter of a million
maloti in cash
and equipment. The constitution makes it very clear
that the admini­stration and control of the centre shall be in
the hands
of the Executive Committee (Article 5 (1) ). The applicant
seems to be under the wrong impression that because he claims to have
contributed more money than any other donor of Centre, he is the
Centre's administrator and has better rights than the Director of
the
Centre. There is no reason why the Treasurer should have more
administrative powers than the Director.

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The vehicle claimed by the Centre in CIV/APN/117/86 was
bought by the Centre on the 24th July, 1985 for R12,295-00 cash. It
was bought
from Orange Toyota in Zastron and subsequently registered
in Lesotho under the name of the Centre Reg. No. A 8478 (see invoice
No.
02953 dated the 24th July, 1985 annexed to respondent's answering
affidavit). In her supporting affidavit Rose Ramabitsa deposes
that
the vehicle is the property of the Centre and further deposes that on
the 4th April, 1986 the respondent transferred the ownership
of this
vehicle and had it registered in his own name (See Annexure "M"
to her replying affidavit)

The respondent admits that the vehicle was registered in
the name of the Centre and that on the 4th April, 1986 he transferred
ownership
and registered it in his name. The reason for doing this
being that it has been registered in the name of the Centre for
convenience
and by agreement with the Director. He avers that between
the 23rd July, 1985 and the 15th August, 1985 he withdrew an amount
of
R46,000-00 from his personal Call Account from the Bank for the
purchase of an automobile for the Director and for the Toyato Hilux
Bakkie for himself. It was by mutual agreement that the automobile
would be for the personal use of the Director and the bakkie would
be
for his use; both vehicles were bought with his personal funds and
not the Centre's funds at all. He has annexed three current
account
deposit slips (Annexure "E") as proof that the money used
for the purchase of these two vehicles came from his
call account.
The first slip shows that on the 23rd July, 1985 an amount of
R12,300-00 was deposited into the Centre's Current Account,
Ex Call
Deposit a/c (Henry D. Stelzer). The second one shows that on the 12th
August, 1985 an amount of R14,000-00 was paid into
the Centre's
Current Account Ex Call Deposit a/c (Henry D. Stelzer) and the last
one shows that on the 15th August, 1985 an amount
of R10,000-00 was
paid into the Centre's Current Account Ex Call Deposit a/c (Henry D.
Stelzer).

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If the respondent intended to buy the Toyota Hilux van
for himself and had an amount of R12,300-00 on the 23rd July, 1985
just a day
before he bought the van, why did he first pay the money
into the Centre's account only to withdraw it on the following day to
buy
the van? The truth of the matter is that the respondent intended
to buy the van for the Centre. There was no reason why he paid the
money into the Centre's account before withdrawing it immediately to
buy the van and register it in the name of the Centre. He claims
to
have been the main donor to the Centre and cannot be heard to say
that all the monies he donated to the Centre are still his property.
He donated all these monies with the good intentions of helping the
Centre which has done a commendable work for the blind people
in this
country. His personal vendetta with the Director of the Centre should
not be allowed to destroy the Centre in any way. This
Court cannot
allow him to take back what he donated to the Centre simply because
he has a personal clash with the Director.

According to Annexure "F" to respondent's
answering affidavit the Cressida car was bought on the 9th August,
1985. This
clearly shows that the amounts deposited into the
applicant's current account on the 12th August, 1985 and on the 15th
August, 1985
hod nothing to do with the purchase of the two vehicles
as the deposits were made after the vehicles had been bought and paid
for
in cash. This creates a suspicion even on the deposit made on the
23rd July, 1985 whether it had anything to do with the purchase
of
the Hilux van. The respondent has not even attached a bank statement
to show that between the 23rd July, 1985 and the 15th August,
1985
the applicant did not have enough funds to buy the two vehicles. A
treasurer of any organisation does not pay his funds into
the
organisation's bank account so that he can later claim things he
bought after he has made such deposits as his own. The Director
deposes that the Centre makes about R1,000-00 per day through the
sale of wool. This means that the '

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applicant still had its own money with which it bought
the two vehicles.

On the 4th April, 1986 the respondent changed the
registration of the Hilux van into his own name. He did not consult
the Director
or any member of the Executive Committee to get their
approval for the change. The change of ownership form (Annexure "M"
to Ramabitsa's replying affidavit) provides for the signature of the
previous owner and that of the new owner. The respondent signed
as
the new owner but there is no signature in the space for the
signature of the

previous owner. If it was by mutual agreement that the
van was

registered in the name of the Centre, why did the
respondent not approach

the Director of the Centre and ask her to sign as the
previous owner? The change of ownership as it stands now is
incomplete and irregular.
The Traffic Commissioner acted wrongly by
agreeing to change the regi­stration of the van without the
signature of the previous
owner. The new registration is null and
void.

The respondent has now resigned as Treasurer of the
applicant but

he left the Centre before he had accounted for the
Centre's monies to

the Director which had at all material times been in his
custody. This

he must not be allowed to do. He must do a proper
handing over of the books of account and files to the Director .

That the respondent is misusing the Centre's funds is
confirmed by Mr. K.L.M. Jonathan, the Director of Immigration, who
avers that
after the Ministry of Interior had received complaints
from donor agencies that funded the Centre, a commission of inquiry
was appointed.
It consisted of the Director of Immigration and Mrs
Mokhobo of Social Welfare. The report of their findings was that:-

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"(a) The teachers at the Centre complained
bitterly that . Mr. STELZER was a difficult person to work with. In
fact one Danish
teacher made it clear that she was leaving the Centre
as she found it intolerable to work with MR. STELZER;

(b) Parents of female students and some female students
at
the Centre complained about MR. STELZER's sexual
advances
towards female students;

(c) No proper books of accounts were kept. And in fact
there
were hardly any records of receipts.

(d) No records were available to show how the funds
raised by the Centre itself and those donated had been utilized;

5. 
   Before he left for America on holiday, MR. STELZER
   withdrew
   huge sums of money from the Centre's accounts. In fact
   one
   of the Centre's accounts at a Ladybrand Bank was closed,
   but
   MR. STELZER could not account for how he had used all
   that money.
   All he said was that that was his money he had
   brought with him
   from America although that could not be
   verified;

   
   

6. 
   MR. STELZER did not keep a separate Bank Account from
   the
   Centre's. This made it impossible to say which funds were
   his
   personal funds and which were the Centre's."

   
   

For the reasons I have attempted to summarise above the
order in CIV/APN/110/36 is discharged with costs to the respondent.
The interim
order in CIV/APN/117/86 is confirmed with costs to the
applicant.

J.L. KHEOLA JUDGE.

16th June, 1986.

For Applicant - Mr Mofolo
For Respondent - Mr Mohau