HIGH COURT OF LESOTHO
AID SOUTH AFRICA APPLICANT
AID INTERNATIONAL LESOTHO RESPONDENT
by the Honourable Mrs Justice A.M. Hlajoane on 8th January, 2004.
present Application is for the repossession of a fleet of twelve
vehicles which were and still are in the possession of the
Respondent. The Court granted an interim Order which authorized the
Deputy Sheriff to repossess the vehicles .
Application is opposed as both parties each claim ownership of the
same vehicles. On the one hand, the Applicant claims ownership
thereof by virtue of some re-issued South African registration
Certificates of all the vehicles in its name, whilst
other hand, the Respondent claims ownership coupled with possession
of the same vehicles by virtue of having purchased them
case has been that as an affiliate of a foreign organisation- Dorcas
Aid International, Netherlands, it has been working
that foreign organisation. Applicant claims to have bought the
vehicles in issue with the funds of that foreign organisation,
Aid International, Netherlands.
case has further been that a certain Reverend Frank Tsotetsi Makoro
was appointed by Dorcas Aid International (DAI),
as the Southern
Africa Regional Director with instructions to register a branch or
subsidiary of the International Organisation,
DAI, in Lesotho. But
that contrary to such instructions of establishing a field Office in
Lesotho, Makoro established and registered
an independent corporate
story is denied by the Respondent who is saying that in fact, the
decision that was taken was that each of the following
Lesotho, South Africa and Mozambique should formally register its own
distinct and separate entity. As a result Makoro
Respondent herein as a fully fledged distinct legal entity. He is
also saying that the vehicles in question were
purchased with funds
generated from Lesotho by the Respondent.
matter came before me for argument, Counsel for the Respondent raised
some points in limine from the bar. This kind of
strongly objected to by the Applicant showing that for a point of law
to be raised there has to be a
The objection has not been buttressed in the Applicant's heads of
Respondent on the other hand argued that a point of law may be raised
for the first time at any time in the Court of first instance
appeal, and that there is no need to lay any foundation for it in the
affidavit or give notice to the other side. It was
decided in the
case of Attorney-General & 2 others v Kao C of A (CIV) No. 26 of
2002 and numerous other decisions cited therein,
that a point of law
may be raised for the first time at any time in the Court of first
instance and even on appeal. To demonstrate
this point further, the
Court of Appeal in Albert Molefi Tlali v Attorney-General cited in
Kao's case above, was not hesitant in
raising a point of law mero
motu where the dictates of justice so warranted. The main
consideration would be whether or not such
a move occasioned any
prejudice or unfairness to the other party. Applicant in this case
never alleged any prejudice suffered.
making a determination on the question of whether or not it was
acceptable for the Respondent to have raised questions of
having laid a foundation, I will now hasten to deal with the points
of law raised by the Respondent.
the Rules of Court.
Respondent is saying that the Applicant is in flagrant disregard of
the Rules of this Court by non compliance with Rules 8(4),
and 48(1). Rule 8(4) requires that every Application brought Ex Parte
- to be filed with the Registrar before noon on
two Court days
preceding the day on which it is to be set down for
The present Application was filed with the Registrar on the 14th
November, 2003 and also moved on the same day. This clearly
violation of this important Rule of this Court, see Mahlakeng &
others v Southern Sky (Pty) Ltd and others C of A CIV)
No. 16 of 2003
and Vice Chancellor NUL v Putsoa C of A (CIV) No. 28 of 2002, where
the Court of Appeal expressed its displeasure
where Rules have been
granted yet there had been inadequate notices given.
sounding its displeasure further, it was said in the case of Mthembu
v LBFC 1985 - 89 LAC 153, that the Application should not
whatever the prospects may be if there has been a flagrant breach of
the Rules of Court in more than one respect.
48(1) is for the request for the filing of security. In terms of that
Rule, Applicant who is a peregrinus was asked to file
security by the
Respondent. He never responded to this request hence the exclusion of
this important step in the index to the proceedings
of this case.
This was a very grave irregularity on the part of the Applicant
calling for a dismissal of his claim. None observance
of the Rules of
this Court should not just be taken lightly as the Rules are there to
be strictly adhered to.
is saying that the Court had no power to grant or make an order not
prayed for in the_Notice of Motion. The prayers that
were asked for
were framed as follows:-
the Honourable Court dispense with the rules relating to notice and
service and that this matter be heard as one of urgency in terms of
the rules of the above Honourable Court;
vehicles having descriptions and registration numbers listed on
annexure 'A' hereto are to be returned and delivered to the
Applicant at care of 528 Phakoe Street, Maseru.
Sheriff or his lawful deputy of the above Honourable Court is duly
authorized to take possession of the vehicles listed on
hereto wherever they might be found and hand them over to the
of suit; and
and/or alternative relief.
NOTICE FURTHER that if you intend opposing this Application you are
the Applicant's Attorneys telephonically and/or in writing on or
before 12h00 on 14 November, 2003 and to
your answering affidavit if any on or before 14h00 on 14
TAKE NOTICE that the application will be made on 14 November, 2003 at
at the prayers as framed, there was no prayer for an interim order or
a rule nisi, there was also no prayer for an order
Deputy Sheriff to take possession of the vehicles pending
finalisation of the Application. The Respondent was never
show cause on the return day why a final order of returning the
vehicles permanently to the Applicant shall not be made
the order that was granted had a final effect, and the order that was
signed by the Registrar was not that which was granted
by the Court.
The Order reads thus:-
rule nisi be and is hereby issued in the following terms:
the Deputy Sheriff be and is hereby authorized to take into his
possession immediately the following vehicles, (given out
a list of
the Deputy Sheriff keeps possession of the aforesaid vehicles in (a)
above as an interim order pending finalisation of this
this rule nisi be and is hereby made returnable on Monday 24th
Respondent show cause why a final order returning the vehicles in
(a) permanently to Applicant shall not be made final.
Respondent show cause why it may not be ordered to pay costs of suit
further and/or alternative relief may be granted to Applicant.
authority of the National Executive Committee of the Lesotho National
Olympic Committee & others v Morolong C of A (CIV)
No. 26 of
2001, the Court had no power to grant an order that was never prayed
for in the notice of motion. In the absence of any
for amendment of the notice of motion, Applicant could not just have
drafted an amended order, Attorney-General
and another v Motaung C of
A (CIV) No. 18 of 2001.
cause of action in a Replying affidavit or argument.
Applicant is never to be allowed to make out his case in the Replying
affidavit or argument; he stands or falls by his founding
Frasers Lesotho Ltd v Hata Butle (pty) Ltd 1999 2000 LLR & LB 65.
case on the founding papers was for repossession of the vehicles, but
the replying papers sought proof of ownership.
For this reason also
Applicant's case falls to be dismissed.
Respondent avers that the Application is riddled with serious dispute
of facts which obviously were foreseeable, and as such
ought not to have approached Court by way of motion proceedings.
claims ownership by virtue of a re-issued South African registration
Certificate of the vehicles in its name, whereas
on the other side,
Respondent claims possession and ownership of the vehicles by virtue
of having purchased them from McCarthy
Toyota, Gauteng out of funds
it generated from Lesotho.
a determination on this point on whether or not a real dispute
existed, I was guided by the criteria as decided in Room
v Jeppe Street Mansions 1949 (4) S.A. 1155, that; the dispute must be
foreseeable, must be real and the Respondent
must allege an
alternative version, it must be a dispute of the main facts necessary
to decide the action, not Just a peripheral
issue, also whether or
not the dispute of fact can be resolved on paper and not by viva voce
dispute on ownership was foreseeable as there has always been
resistance in handing over the vehicles to the Applicant and instead
an attempt by the Respondent has finally been to obtain Clearance
Certificates for the vehicles in the Republic of South Africa
orderto facilitate the re-registration in Lesotho, (para 3o of
dispute could surely not be resolved on papers without calling for
viva voce evidence. It is a dispute of the facts necessary
been said on the founding papers about one Frank Makoro (Regional
Director - South Africa), World Food Programme and Dorcas
International, Netherlands who are not parties to the proceedings.
All three seem to have a real and substantial interest in
Application, yet they have not been joined. Non-joinder of an
interested party is fatal to Applicant's case, Morolong's case
founding papers, it was during May, 2002 when a memorandum of
understanding was signed by Dorcas Aid International (DAI)
World Food Programme, an agency of the United Nations and DAI
appointed as the agency handling food distribution on behalf
World Food Programme in Lesotho.
vehicles subject mater of dispute in this case were purchased in
order to equip Lesotho operations of DAI to carry out its tasks
the distribution of food aid. These vehicles were registered in the
name of the Applicant ( para 13 of founding affidavit).
vehicles were made available for use by what was believed by DAI to
be the Lesotho Branch of DAI, the Respondent.
founding affidavit show that Makoro as Regional Director, Southern
the suspension by DAI and that it was on the 16 October, 2002 when he
clearly showed his intention by way of an e-mail transmission
would then operate Dorcas Aid International - Lesotho, the
Respondent, as an independent organisation outside the umbrella
DAI (para 15 of founding affidavit).
therefore been clear from as far back as October, 2002 that the
Respondent was out of control. Therefore the risk of deterioration,
damage and loss started as far back as October, 2002 and cannot now
create a reason for urgency.
result, the points in limine succeed and the rule is thus discharged
with costs on Attorney and Client's scale.
Applicant: Mr Moiloa
Respondent: Mr Ntlhoki
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