CIV/T/107/87

IN THE HIGH COURT OF LESOTHO
In the
matter between:-
JAKARANDA BUSDIENS (PTY) LTD Plaintiff

and

HERBERT MOKOROSI Defendant

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 18th day of September, 1989

In this action the plaintiff is claiming the delivery of
a certain 1985 Mercedes Benz L 613 minibus by the defendant to him.
Alternatively,
payment of the amount of M70,000-00 and costs of suit.

It seems that on the 24th December, 1985 plaintiff's
mini­bus described above was stolen from its depot in
Bloemfontein. It is
the plaintiff's case that the minibus now kept at
the premises of the National Motors is its missing minibus. It is
common cause
that this bus was found in the possession of the
defendant through his employees. He claims the vehicle and alleges
that he bought
it.

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C.J. Greyling described himself as the traffic manager
of the plaintiff. He testified that plaintiff's buses have three
colours, namely,golden
yellow, bahama (green blue) and burnt orange,
and lately cream. The dominant colour is cream with the other colours
sprayed in stripes.
(He drew a sketch of plaintiff's bus which shows
the colours on the buses). (Exhibit A). The bus had a tachometer.
Seven cards are
put into the tachometer to cover a week. A peculiar
key is used to open the tachometer. The windows of the missing bus
were made
of a very special glass called polycarbonate lexan margard
glass material. He stated that although the margard glass is readily
available
to the general public it is very expensive. The glass is
unbreakable.

During August, 1986 he came to Maseru C.I.D. offices
where he identified the plaintiff's missing bus. He was accom­panied
by Sergeant
Groenawald, Detective Sergeant Thulo of the South African
Police, plaintiff's workshop manager and some members of the Royal
Lesotho
Mounted Police. He opened the tachometer and found four
cards. On one of the cards was written date, fleet number and
kilometres.
The handwriting was that of one of the plaintiff's
tachometer clerks. He took out a knife and scraped off some paint
from the body
of the bus and the colours of the plaintiff's buses
came out. The defendant remained silent.

Greyling deposed that the registration number of the
missing bus was OB 60269, its chassis number was 634449, its engine
number was
396900026024746. He admitted that when the bus was
inspected

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by the Court it was found that both the engine number
and the chassis number were different from the original numbers the
bus had
when it went missing. He admitted that the official method of
identification of a motor vehicle is by its engine number and chassis
number. He was of the opinion that between 1986 and 1988 the bus was
re-sprayed and that was the reason why he could ho longer find
and
show the Court the spot on the bus where he had scraped off the paint
revealing plaintiff's colours. He also noticed that the
engine number
and the chassis number had been tampered with. He saw file marks or
grinding stone marks on the engine block and the
chassis.

The second witness called by the plaintiff was Christian
Marx. He is a district manager of the Mercedes Benz in charge of the
Free
State and the Northern Cape. He is in charge of the records of
his company. His evidence is to the effect that he received a
certified
copy of a computer print-out from Pretoria which showed the
particulars of the plaintiff's missing bus. (It was handed in Court
and
marked Exhibit B). He was given engine number 3949000005001976.
He fed the number into the computer and the computer print-out
revealed
that that engine number belongs to a bus which was sold to
one Thabo Ntabe of P.O. Box 91, Mafeteng. (The computer print-out in
respect
of this bus was marked Exhibit C). Under cross-examination
Marx admitted that he received Exhibit C from Pretoria on the
previous
day.

The evidence of this witness was admitted on condition
that the plaintiff would call someone from Pretoria to come and teli

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the Court that he fed the information in the computer.
This was hot done and it follows that his evidence must be expunged
from the
record.

P.J. De Meyer is the group engineer of the plaintiff.
His duties included the purchasing of buses. The bus in question was
one of
the five buses which he bought in 1985. He bought them from
John Williams which is an agent of Mercedes Benz in Bloemfon-tein.
The
engine number was 396 900 024 746 and the chassis number was
634449. The body was later built by Millers of Pretoria according to
the specifications prepared by him. The specifications consisted of
twenty points as follows:

1. 
   Tapered front dome incorporating a destination
   box.

   
   

2. 
   Pneumatic control aluminium jack-knife saloon
   door.

   
   

3. 
   Two roof four-way hatches.

   
   

Front unit off set to off side and rear unit to near
side.

4. 
   Round type interior saloon lamps - Hella OBEN
   made
   in Germany,

   
   

5. 
   Short roof carrier over rear wheels with
   detachable
   ladder.

   
   

6. 
   Square rear end incorporating a drop frame
   luggage
   boot, twin Trucklite model 40700 rear
   lamps and rear tow bar.

   
   

7. 
   Body painted

   
   

Basic background: Linen

Strips: Golden Yellow, Bahama Green

and
Light Orange

8. 
   Polycarbonate Lexan Margord window material in
   6 mm.
   with 1/3 opening sliders. Sena windows

   
   

9. 
   Plywood floors with tuff tread on two units

   
   

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10. 
    Interior padded parcel racks covered in
    brown vinyl.

    
    

11. 
    S.L.2 high back 3 x 2 seats in brown vinyl
    and
    corner hand grips.

    
    

12. 
    Blaupunkt Heidelberg radio/tape combination
    with six
    x 20 watt Pioneer speakers in ceiling.

    
    

13. 
    Driver's protection partition with polycarbonate
    window
    material.

    
    

14. 
    Driver's seat hinged to allow easy access to
    the
    batteries and secured with spring loaded catches.

    
    

15. 
    Fire extinguisher bracket to suit 2.5 kg.
    extin­
    guisher securing base +/-150 mm x 150 mm tube
    section
    +/-200 mm in height x 110 mm. tube
    opening.

    
    

16. 
    Ratchet type air cleaner informer attached to
    intake
    manifold.

    
    

17. 
    Eight-day tachograph type TCO 15-7/11.

    
    

18. 
    Anti-theft device in fuel tank neck.

    
    

19. 
    Tyre code branding of tyres "TNT".

    
    

20. 
    Rear inner wheel fitted with rubber valve
    extensions.

    
    

During the inspection in loco it was found that the
ladder in item 5 was missing, the paint item 7 was changed, items 12,
13, 15,
16, 18, 19 and 20 were missing.

Sergeant Jacob Groenawald is a member of the South
African Police attached to the branch dealing with theft of motor
vehicles. On
the 24th December, 1985 he received a report concerning
the theft of the plaintiff's Mercedes Benz bus. Subsequent to that
report
he came to Maseru accompanied by one Greyling. He found
Sergeant Thulo of the South African Police here in Maseru. The Royal
Lesotho
Mounted Police was represented by Major Setloboko and

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the defendant was also present. He was shown a bus and
made his investigations on it. He found that the engine number hod
been tampered
with; the surface on the engine block where the number
is imprinted was uneven and there Were marks of grinding. When the
vehicle
leaves the factor the surface is usually as smooth as glass.
The numbers are stamped upright but in the present bus he found that
the digits in the engine number leaned to the right or left.

He scratched some paint on the outside of the bus and
the colours of the plaintiff's buses came out. Mr. Greyling opened
the tachometer
and a card dated 24th December, 1985 was found. He
(Greyling) identified it as his employer's card. He regarded himself
as an expert
but did not use the etching test to find out if there
had been tampering with the engine number.

Sergeant Thulo confirms that the tachometer was opened
and one card was found in it. He did not carefully examine the card
but saw
that it had a number on it and something like a signature. He
also confirms that when Sergeant Groenawald scratched the outside of
the bus plaintiff's colours came out.

The evidence of Warrant Officer Mokeretla of the Royal
Lesotho Mounted Police was to the effect that he seized the bus in
question
at Maseru bus rank and drove it to the C.I.D. offices. He
was given a registration certificate by the defendant and compared it
with
the engine number and chassis number of the bus. He found out
that the numbers appearing in the defendant's registra­tion
certificate
tallied with those on the bus. The bus was released

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to the defendant because he obtained a court order to
that effect. He last saw the docket relating to the bus when it was
taken to
the magistrate's court by another policeman.

The defendant testified that he bought the bus from one
Ntabe who is now living in Botswana. He bought it in March, 1984 and
registered
it in March, 1986 because he did not have enough money to
pay for sales tax. He paid M65,000-00 for the bus. The payment was
made
in two equal instalments. He denies that any cards were found in
the tachometer. He admits that plaintiff's employees scraped off
some
paint from the body of the bus but no plaintiff's colours came out.

In cross-examination the defendant stated that he has no
receipts for the money he paid to Ntabe because he is his friend. (He
handed
in court a registration certificate marked Exhibit E). The bus
in question is a 1983 model and not a 1985 model as alleged by the
plaintiff.

It is common cause that the official identification
marks of a motor vehicle are its engine number and its chassis number
In the present
case these official identification marks tally with
the defendant's registration certificate. The procedure before
registration is
that the police examine the vehicle and issue a
clearance certificate by which the buyer of the vehicle is authorised
to register
the vehicle in his name. The registering authority cannot
register a motor vehicle unless the change of ownership documents are
accompanied
by a police clearance certificate showing, inter alia,

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that the vehicle is not stolen according to their
records of motor vehicle reported stolen. It was therefore incumbent
upon the plaintiff
in the present case to bring expert evidence to
show that although the numbers of the chassis and the engine tally
with those appearing
in the defendant's registration certificate,
they are not the original numbers. In other words, he had to prove
that the numbers
had been tampered with.

On the 28th November, 1988 Mr. Waner, counsel for
the plaintiff, applied that members of the South African Police be
allowed to conduct a test on the vehicle in question
to establish the
original numbers of the engine and the chassis. Although Mr.
Nthethe, attorney for the defendant, strongly opposed the
application I allowed it on two conditions that Mr. Nthethe
was free to attend the test and he was also free to call his client's
experts to conduct their own test if he so wished. Earlier
the
plaintiff's attorneys had filed a Notice to call expert witnesses and
in that Notice the experts were Warrant Officer Oehley
and Warrant
Officer De Waal. It was alleged they were experts on vehicle theft
and engine and chassis tampering.

Despite the Notice to call expert witnesses and the
formal

application which was made before this Court, no such
evidence was

led until the plaintiff closed its case. I am completely
at a loss

why the plaintiff's counsel decided not to lead such
vital piece of evidence to plaintiff's case. Sergeant Groenewald
attempted to
give evidence on tampering and told the Court that the
engine and chassis numbers of the vehicle in question had been
tampered with.
He is

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not an exprt on tampering and never conducted an
scientific test on the vehicle to form the opinion that there had
been tampering.

Sergeant Groenewald testified that the area where the
engine number is inprinted was uneven and there were obious marks of
grinding.
He said that the digits in the engine number were slanting
and not upright as they ought to be if there had not been any
tampering.
During the inspection in loco I had the chance to look at
the engine number and found that the digits were upright except "1"
which slightly slanted to the right. I found that the surface was
even except that the paint on the numbers had been removed. I am
of
the opinion that if the engine number I saw has been tampered with,
the work was done by experts and they did their work so well
that a
person who is not an expert cannot make any distinction. The
plaintiff ought to have led expert evidence.

The evidence of Christian Marx was admitted on condition

that the plaintiff would call a person who fed in the
relevant information

in the computer. In other words the computer print-outs
were admitted on condition that the person or the clerk who
computerised the
books of Mercedes Benz of South Africa would come
and testify that the information he put into the computer was
accurate and tell
the Court from where he obtained it.

In S. v. Volschenk, 1970 (3) S.A. 502 (T.P.D.) at
p. 504 Boshoff, J. said:

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"A banker's books are from their very nature at
best only secondary evidence of the original transactions from which
they are
compiled and which they purport to reflect. On the general
principles relating to the law of evidence, the contents of a
banker's
books cannot be used testimonially in a court of law unless
the contents thereof have been properly proved with the evidence of
the
person or persons who have direct knowledge of the transactions
reflected therein. Com­puterised books are in no better position
because they are compiled in the same way, the only difference being
that a machine is used to record the transactions."

Section 37 of the Evidence in Civil Proceedings
Procla­mation No.72 of 1830 reads as follows:

"Entries in ledgers, day-books, cash-books and
other books of any bank shall be admissible in all legal proceedings
as prima
facie evidence of the matters, transactions and accounts
therein recorded, on proof being given by the affidavit in writing of
one
of the directors, managers or officers of such bank, or by other
evidence, that such ledgers, day-books, cash-books, or other
account-books
are or have been the ordinary books of such bank, and
that the said entries have been made in the usual and ordinary course
of business,
and that such books are in or come immediately from the
custody or control of such bank."

Although the Volschenk's case and the
Proclamation refer specifically to banker's books I do not find any
reason why the principle should not apply to the books
of any company
which wants to prove the contents of a computer print-out coming from
its own computer.

I am of the opinion that one of the senior managers of
the M. Benz ought to have made an affidavit in terms of section 37 of
Proclamation
72/1830. The certificate on Exhibit B made by one

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W.T.J. Wenhold who is the Executive Assistant to the
Management Board of Mercedes Benz of South Africa, falls far short of
what is
required by section 37. Exhibit C has also not been certified
in accordance with the law. It is not accompanied by any affidavit.

For the reasons stated above I come to the conclusion
that the two computer print-outs (Exhibit B and C) handed in Court by
Christian
Marx are inadmissible. The entire evidence of Marx must be
rejected because he relied on the two computer print­outs which
are
inadmissible.

The evidence of Petrus Jacobs De Meyer was on the bus
body specification which was prepared by him. He commissioned Millers
of Pretoria
to build the body. He gave his evidence looking at a
document to which I shall refer as Exhibit X. The documents showed
twenty items
of specification. I : must say that Exhibit X looked so
new that it could have been prepared on the day preceding the day on
which
he gave his evidence. I am saying this because on the last day
of his giving evidence, Mr. De Meyer brought another elaborate
document
to which I shall refer as Exhibit Y. The two documents
contain the same number of items of specifications but Exhibit Y
gives more
details. These two docu­ments are not the original
copies of the specification which Mr. De Meyer allegedly commissioned
Millers
to build. They are both original copies which were prepared
by him but the Court has not bean told where he got that information.
If he got it from a copy in his files, assuming that the original
copy went to Millers, why

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has he not brought his copy from his file? The copy from
his file would have more evidential weight than these original copies
which
he prepared from undisclosed sources.

If the applicant seriously wanted to convince this Court
it would have called a witness from Millers who would probably bring
an original
copy of his commission by the plaintiff. Such a witness
would probably even tell the Court that as a bus body builder
plaintiff's
specification was peculiar. As the evidence stands now
there is nothing to show that all those features described in the
specification
are peculiar to the plaintiff.

There is overwhelming evidence that when plaintiff's
employees first came to Maseru to identify their missing bus, they
scraped off
some paint on the body of the bus and that plaintiff's
colours came out. There was also evidence that when the tachometer
was opened
four cards - some witnesses say one card - came out. It
had the bus fleet number of the plaintiff and the signature of
plaintiff's
clerk. It is alleged that the card or cards was or were
given to Major Setloboko of the Royal Lesotho Mounted Police who was
not
called as a witness. It is now alleged that the docket regarding
the vehicle in question is missing and cannot be found. This is
a sad
and unfortunate state of affairs because valuable evidence cannot now
be produced before this court to enable it to come to
a just
decision.

At the inspection in loco of the bus in question the
witnesses failed to show the Court the area where paint had been
scraped off.
They were of the opinion that the bus had been

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re-sprayed because it is common cause that after they
had identified the bus it was subsequently released to the defendant
by order
of Court which he had obtained against the police. It seems
to me that it is possible that the bus was re-sprayed, but it is also
possible that the bus now in question is not the bus which
plaintiff's employees identified when they first came to Maseru. I am
saying this because the features by which the plaintiff is now trying
to identify the bus are not peculiar to it. For instance, a
tachometer was shown to the Court but the witnesses conceded that it
could be found in all buses of that model and make. In other
words
the tachometer was not a specification made by Mr. De Meyer to
Millers.

It was submitted on behalf of the plaintiff that the bus
which the defendant bought had a four - cylinder-engine, but the bus
before
Court has a six - cylinder-engine. This is the plain­tiff's
missing bus and that the engine number and the chassis number were
tampered with and changed. Mr. De Meyer's evidence was that the "6"
in the engine number (396) refers to a six -cylinder-engine;
and that
the "4" in the engine number (394) refers to a
four-cylinder-engine. I must point out that Mr. De Meyer may have
a
good knowledge of Mercedes Benz bus engines however he is not an
expert in that field. One would have expected such evidence to
have
come from somebody from Mercedes Benz of South Africa. Mr. Marx is a
motor mechanic with five years experience with Mercedes
Benz engines.
I think he is the right person who would have enlightened the Court
on this aspect of the case.

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It is common cause that Thabo Ntabe bought a bus from
John Williams Motors, Bloemfontein in 1982. The defendant alleges
that he bought
the bus in question in March, 1984 and registered it
two years later in March, 1986 because he did not have enough money
to pay the
sales tax. Mr. Waner sub-mltted that the evidence
before Court is that the bus is a 1985 model and that it had not been
manufactured in 1983 when it was
allegedly sold to the defendant. On
the other hand the defendant alleges that according to its change of
ownership papers the bus
is a 1983 model.

It seems to me that the police and the registering
authority accepted that the bus was a 1983 model; the former issued a
clearance
certificate and the latter registered it and issued a
registration showing that it was a 1983 model. This issue would have
been easily
resolved if the plaintiff proved that the engine number
and chassis number appearing in the registration certificate and on
the bus
were false and did not belong to the bus which was sold to
Thabo Ntabe in 1982,

There was a dispute as to whether the numbers appearing
on the gear-box, front axle and rear axle are serial numbers or part
numbers.
The plaintiff alleges that they are serial numbers which
have been given to those particular parts. The defendant denies this
and
alleges that they are part numbers. In giving evidence on this
point the plaintiff's witness relied on the computer print-outs which
has been excluded from the record because

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they have not been accompanied by a proper affidavit. On
that ground alone the evidence regarding the gear-box number, the
front and
rear axle numbers must be rejected.

For the reasons given above I grant absolution from the
instance with costs to the defendant including costs of storage of
the vehicle
at National Motors Garage.

J.L. KHEOLA
JUDGE

18th September, 1989.

For Plaintiff - Mr. Waner
For Defendant - Mr.
Nthethe.