IN THE HIGH COURT OF LESOTHO In the matter
& M OFFICE SUPPLIES (PTY) LTD APPLICANT
OF SALES TAX 1st RESPONDENT
GENERAL 2nd RESPONDENT
Delivered by the Honourable Acting Justice Mrs. J.K.
Guni On the 25th day of September, 1995
On i2the September, 1995 this application was brought on
an urgent basis and as an ex parte application. There were no reasons
the respondents should not be given notice of this application.
On that ground alone an order was made for the respondents to be
served. The matter came before me for argument on 14th September,
1995 after all the necessary papers had been filed of record.
In the founding affidavit, filed on behalf of the
applicant, by one KHAUHELO MAPHELEBA, it appears that she is the
director of two
separate and different companies: K & M Office
Supplies (Pty) Ltd. and DALLA BOUTIQUE (PTY) LTD. This sentiments
in paragraphs 5 and 6 of the founding affidavit.
There appear to be no dispute that the officers of first
respondent together with the members of R.L.M.P. executed the
distress on the authority of the Commissioner of
Sales Tax office. It is an established fact, that
a company known as DALLAS BOUTIQUE (PTY) LTD.
owed Sales Tax that was due and payable to the
First Respondent. It is also accepted by both parties
that the execution of a distress was duly authorised to be
carried out upon the moveable property of DALLAS BOUTIQUE (PTY)
The hotly disputed issue is the location where the
distress was executed. The applicant contested that the office where
executed has nothing to do with DALLAS BOUTIQUE (PTY)
LTD. which owes Sales Tax that was due to First Respondent..
According to the
averments at paragraph 8 of MALOKA MAPETLA's
opposing affidavit, the office in question has been indicated to the
officers of the
First Respondent, by the director of DALLAS BOUTIQUE,
one KHAUHELO MAPHELEBA, as the office of DALLAS BOUTIQUE (PTY) LTD.
Previously on other occasions when the officers of First
Respondent had dealings with DALLAS BOUTIQUE (PTY) LTD., in that
question, they were made to believe that it is the office
of DALLAS BOUTIQUE (PTY) LTD. (Paragraphs 4 of affidavits PULE CHERE
In the list of the goods seized MM3 attached to the
opposing affidavit and also in the list annexure 'D' attached to the
founding affidavit, there are documents which are
clearly marked by the applicant as belonging to DALLAS BOUTIQUE (PTY)
LTD. How the
property that belongs to DALLAS BOUTIQUE (PTY) LTD. come
to be found in this office, if the office did not belong to DALLAS
was not explained by the applicant. It is apparently not
quite correct that this office has absolutely nothing to do with
BOUTIQUE (PTY) LTD.
Further more in the replying affidavit by the applicant,
KHAUHELO MAPHELEBA describes the offices allegedly that of applicant
as "My headquarters" (Paragraph 8). KHAUHELO
MAPHELEBA who is a director of both companies namely K & M Office
(PTY) LTD. and DALLAS BOUTIQUE (PTY) LTD. and has always
told the officers of First Respondent that the office belong to
(PTY) LTD. is most probably running both companies
from the same office more especially that she described that office
as her headquarters.
It is claimed on behalf of the. applicant
company that the property seized belongs to it. There seems to be
alleged on behalf of
the applicant that, its claim that the property
seized belong to it must be proved by the respondents. The legal
position has always
been very clear and unequivecal on this point, he
who alleges must prove that allegation.
The First Respondent's officers have, at all times been
prepared and willing to release the property the applicant is
the applicant proved that the property belongs to it.
Before this Court no attempt was made by the applicant or on its
behalf by director of both companies to assist to
separate the property of the applicant company from Chat of DALLAS
It appears that the applicant is persisting in its
that all the property seized belong to K & M OFFICE
SUPPLIES (PTY) LTD., despite there being documents that are clearly
by the applicant in her papers for example in Annexure 'D' as
those of DALLAS BOUTIQUE.
The deponent of both the founding and replying
affidavits on behalf of the applicant, does not deny that she always
informed the officers
of the First Respondent that the office in
question is that of DALLAS BOUTIQUE (PTY) LTD. What is not denied
especially by the person
who is alleged to have given that specific
impression by words and actions, must be regarded as admitted.
I am satisfied that the officers of First Respondent
were legally authorised to carry out the distress upon the moveable
of DALLAS BOUTIQUE (PTY) LTD., as evidenced by Annexure MM1.
I am also satisfied that the moveable property seized in
the execution of that distress is the property of DALLAS BOUTIQUE
, as the claim made by the applicant, has not been
supported in anyway.
It is in this circumstances that this applicant is
For the Applicant : Mr. T. Hlaoli For the Repondents:
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law