HIGH COURT OF LESOTHO
OF POLICE 1st RESPONDENT
MOKHOTLONG POLICE STATION 2nd RESPONDENT
GENERAL 3rd RESPONDENT
by the Honourable Mr Justice T. Nomngcongo on the 28th October 2003
application was brought on a certificate of urgency for orders in the
the normal rules pertaining to modes of service and notice be
dispensed with on account of urgency.
a Rule Nisi be issued and returnable on a date and time to be
determined by this Honourable Court to show cause if any why:
and or their subordinates shall not be directed to release
forthwith, applicant's certain motor vehicle ISUZU truck,
number TLD 5405183678 AHND, Engine Number 594194 and Registration
Number AU 171.
and or their subordinates shall not be directed to release
applicant's original documents in the form of annexure
respondents to pay costs hereof.
and or alternative relief.
prayers 1 and 2 operate with immediate effect as interim Court
for the applicant duly appeared before my brother Peete J. the
following day and obtained an order in terms of prayer 1
"Rule Nisi returnable on 17th April 2003". My understanding
of this order is that prayer 1 regarding dispensation
with the normal
rules pertaining to service and notice had been granted and as for
the rest of the prayers the respondents were
required to show cause
on the 17th April why they should not be granted. Yet the Interim
Court Order presented to and signed by
the Registrar includes all the
prayers and specifically and I quote:
"It is hereby ordered that:
prayers 1, 2 operate with immediate".
this is not what Peete J. ordered or intended. Drafted and signed as
it is, would mean that all the prayers under 2 had
been ordered to
operate with immediate effect ex parte. That would include not only
the immediate release of the vehicle in question
but also an order of
costs against the respondents. Of course that is unthinkable. This
should sound a warning first to practitioners.
They should not come
to court with prepared orders taking for granted that they will be
granted in the form that they bring them
and automatically present
them for signature by the Registrar. This is what I hope has
happened. Secondly Registrars have to be
careful that what they sign
for is that which was in fact ordered by a Judge.
now to the certificate of urgency accompanying the Notice of
It is in the following terms:
considered the above matter and bona fide believe it to warrant
urgent relief for the following reasons.
detention of applicant's vehicle is unreasonable and unlawful and is
causing him financial prejudice and harm.
detention will cause humongous debt to the government coffers which
are derived from the tax payers monies".
amplication, of the alleged grounds of urgency the applicant says at
par. 8 of his founding affidavit that he hires out his truck
Chinese Merchants at R2,800 a day to buy stock in South Africa and
significantly that he would suing for loss of such business
course. He further alleges that detention of his vehicle by 2nd
is malicious and its continuation will be a waste of tax payers money
inasmuch as the claim for the loss of business
will be tremendous.
(Par.9) Further that the balance of convenience favours him to "avoid
an unnecessary debt to be a burden
upon tax payers funds". (Par.
12 of the founding affidavit). I may at once point out that while all
this altruism towards
tax payers may be commendable it does not
advance the applicant's case for urgency and it certainly cannot form
a ground for it.
Tax payers will get their dues in due course and
they are certainly in no hurry for that. In any case they have the
to do the job for them and not the applicant.
again, it seems to me that a perfunctory incantation of the
unlawfulness and prejudicial nature of the respondent's conduct
also not sufficient ground to establish urgency. Something more is
needed. After all Rule 8 (22) (b) provides:-
"In any petition or affidavit filed in support of an urgent
application, the applicant shall set forth in detail the
circumstances which he avers render the application urgent...."
that conduct is unlawful and prejudicial or causes so much loss is
not to provide any detail. I am aware that later in
affidavit applicant says that the lost income constitutes his sole
means of livelihood. Even if that is true that
cannot avail him: he
stands or falls by his founding papers. He said nothing of the sort
conclude therefore that the applicant has failed to establish any
urgency in the matter.
application was opposed on the grounds that the police had in the
course of their investigation found a registration certificate
similar details to the registration certificate with the applicant's
vehicle. These are loosely referred to as "Blue Cards".
Also they have reason to believe that the vehicle is stolen property
as it was identified by one Jan Lodewyk Janeke. Again, some
on applicant's vehicle do not tally with its description on the
registration certificate. In particular the tare weight
vehicle did not match the one on the vehicle itself.
the registration certificate found by the police II 1485, according
to official records is in the name of an entity called
Stores and has not been re-allocated.
interesting to observe that the applicant says in par.7 of his
"I have heard rumours that my vehicle has been detained because
someone has a "blue card" that has the (sic) similar
and chassis number as those on my vehicle and I aver that this has
nothing to do with me and or my vehicle, therefore its
unlawful and malicious to say the least".
to this the respondents set out the full facts as to why they
detained the vehicle and end up by saying that the applicant
informed of the reason why that action was taken. (Par. 13.2 of the
Answering Affidavit). The applicant does not deny that
he was so
informed (see Par. 7 of applicant's replying affidavit) This leads to
the conclusion that he was in fact so informed.
Paints LTD v Van Riebeck Paints (PTY LTD) 1984 (3) SA 623 A). Yet the
applicant evasively chooses to dub what
he was informed by the police
as mere rumour. He then in reply goes on to say how he had acquired
the vehicle of which he had been
a driver. The said
had been registered, he says, E 1485. It had belonged to his
employers. It had then been badly damaged as he drove. If it
disappeared because one Alphonse Sello had bought it "voestoets".
Sello had rebuilt it and it had been rendered as good
as new. He had
then re-sold it to his employers. His employers had then "ceded"
it to him in gratitude for long and good
conduct in their service.
This is in startling contra-distinction with his simple and
non-committal assertion that :-
"It has been legitimately bought and registered as is clear from
applicant not as forthcoming in his founding affidavit as he is
elaborate in his reply. I can only construe this as lack
fides and it is trite that an applicant who moves court ex parte as
he did, must display the utmost good faith.
transactions that are now disclosed in reply would require the
sanction, of law. It is provided, for instance by the Road
Act 1981 section;
the registering authority has reasonable belief that a motor vehicle
or trailer in respect of which registration is sought
is or may be
of a type not previously registered but constructed according to
different specifications, he may refuse to register
vehicle or trailer until plans or specifications thereof have been
submitted to and approved by the registering authority.
the event of any change of circumstances which affects the accuracy
of the registered particulars of a motor vehicle
or trailer, the
owner therefor shall forthwith inform the licencing officer of such
change, shall forward to him the registration
book in order that it
amended or cancelled and shall supply the licencing officer with any
further information that may be required." (My emphasis)
applicant does not seem to have complied with either section 8 read
with section 7. The vehicle according to him has been reconstructed
to look as good as new and the tare weight reflected on the vehicle
has been painted over to reflect a different numbers altogether.
those circumstances he was duty bound "to forward to the
licencing authority the registration book in order to have it
or cancelled. It has not. The law has been breached in this regard.
11 of the Act also lays down the procedure upon changing of ownership
of a motor vehicle. The applicant has not followed
such a procedure
merely contending that the vehicle E 1485 does exist
as if the vehicle he claims to be his own was not originally the
something clearly illegal in the acquisition of this vehicle and the
police were entitled to seize it. I have no hesitation
dismissing this application and discharging whatever rule nisi
application is dismissed with costs.
Applicant : Mr Molapo
Respondents : Ms Jaase
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