IN THE HIGH COURT OF LESOTHO
TRANSPORT (PTY) LTD APPLICANT
NTSENO 1st RESPONDENT
COMMISSIONER OF POLICE 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
by the Honourable Mrs Justice A.M. Hlajoane
was approached ex parte and on urgent basis in ordering that the
vehicle, a white Mercedez Benz Tipper Truck, be released
Applicant as a recovered stolen vehicle. The vehicle is presently in
the custody and care of the second Respondent's officers.
compliance with the provisions of Section 8 (22) (c) of the High
the Applicant advanced the following as his reasons for urgency:-(a)
This matter involves recovered stolen vehicles; (b)
Respondent's officers may release them to first Respondent anytime
from today as they have declined to charge first Respondent;
Applicant desperately needs this vehicle to resume wok.
point out that though the certificate of urgency referred to stolen
vehicles, Applicant's counsel in argument referred only
vehicle. Even in (b) above though he has referred to third
Respondent's officers, in argument and on the papers has referred
second Respondent's officers.
prayers sought were framed as follows:
the rules of this Honourable Court as pertains to periods and modes
of service be dispensed with, regard being had to the
urgency of this
second Respondent and or officers subordinate to him be interdicted
from releasing or cause to be released to first Respondent
certain white Mercedes Benz Tipper Truck currently bearing
registration letters and numbers, false engine and chassis
and numbers 35391220338671 and 34005362011037 respectively;
NPN 25442; V0030264554 and 62413126002000 respectively, in his
custody or officers subordinate to him pending the finalisation
the ordinary relief.
a rule nisi be issued returnable on a date and time to be determined
by this Honourable Court, calling upon Respondents
to show cause if
any, why the following ordinary relief shall not be granted as a
also state that there was an urgent relief sought as above stated and
also some ordinary relief as will be shown here under:
Ordering and directing that the above mentioned vehicle be released
to Applicant herein or his Attorneys of record.
Respondents pay costs of this application jointly and severally, the
one paying the others absolved, only in the event
Granting Applicant such further and or alternative relief.
Applicant's case went to show that it was a company duly registered
under the Laws of the Republic of South Africa and carrying
business of transport. That it has under it two subsidiaries,
Siyadayisa Commercial Vehicles and KD Enterprises. The truck in
question, was working at Mdantsane in East London in the course of
when it was hijacked at gun point. That a docket for this was opened
with South African Police.
to the Applicant, that truck was spotted sometime during
weekend by one whom he called as his agent, Abdul Karim Ismail at
Masianokeng here in Maseru. Abdul reported the matter to
Police who responded by taking the truck in their possession where
Abdul identified it as that of the Applicant.
came from the Applicant that when its agent, Abdul asked for the
truck to be released to him, after he had identified it,
could not, as the first Respondent also claimed the same truck as his
and even produced documents to prove his claim.
been the Applicant's case that since his agent's identification had
only been physical, Mabote Police had to call their South
counter part to conduct some examination on the vehicle. The
examination which according to the applicant revealed other
particulars. That when all that had been done Mabote Police declined
to lay any charges against the first Respondent.
contesting this Application, the first Respondent has raised some
limine, that there is a material dispute of facts. Applicant claimed
the vehicle as his own property and that the true
history and correct
particulars of that vehicle were those as set out by him. On the
other hand, the 1st Respondent also claimed
the same vehicle as his
with a history and particulars set out by him. First Respondent
denied the description given by the Applicant
and gave a totally
different history to that given by the Applicant.
above, it was clear that a dispute of fact was bound to exist, yet
all the same, the Applicant chose to go by way of Application
proceedings. It could not in this case be said that the Applicant was
not aware when launching this Application that a serious
fact was bound to develop. They have been before the Police who even
declined to lay any charges against the first Respondent
after he had
produced documents to establish ownership. This dispute of fact arose
from the time the first Respondent denied the
allegations by the
Applicant and instead adduced evidence in support of his version,
Room Hire Co. (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd 1949 (3)
rightly pointed out by the first Respondent, the Applicant did not
reasonably expect that a serious dispute of fact would arise
positively knew that it would arise. This became even obvious when
declined to charge first Respondent and even refused to release the
vehicle to the Applicant. The claim by the first Respondent
come as a surprise but had been reasonably forseen by the Applicant.
(he Applicant's agent, the first Respondent's claim was substantiated
by documentary proof to the Police, whilst Abdul only
identification of the vehicle and this came from the Applicant
himself in his papers filed of record. On this ground
Application ought to be dismissed with costs.
Respondent also indicated that the Applicant chose to proceed ex
parte without having satisfied the requirements of approaching
ex parte, Could it be said that;
Applicant was the only person interested in the relief sought?
- Was the
relief sought a primary step in the proceedings e.g. application to
sue by edictal citation?
there any danger that a delay or notice to the other side might
precipitate the very harm which Applicant tried to forestall?
answer to all these questions is no, then I would not see any reason
why the Applicant proceeded by way of ex parte application,
event has been the case. Applicant was not the only person interested
in the relief sought as both parties are claiming the
The relief sought would be a primary step but Applicant was seeking
for a final relief of releasing the vehicle to
Applicant or his
Attorneys. It would have been different if it had been for an interim
interdict pending an action to be instituted.
principle of audi alteram partem has been violated in this case where
it had been clear that the Applicant was not the only
interested in the relief sought, but also the first Respondent. The
rights of the other party were affected by the interim
order that was
granted yet no exceptional case justified the granting of such an
order. Khaketla v Malahleha & Others 1990-1994
LAC 275 at 280.
For this ground also, the application ought to be dismissed with
now to the merits of this Application, the Applicant's cause of
action is based on rei vindicatio, as he is claiming possession
the vehicle by virtue of being the owner. Applicant claimed to be the
owner of the vehicle through one of its subsidiaries,
He has attached registration certificate to prove that ownership. The
certificate is in the name of KD Enterprises.
to the founding papers is Annexure AT "1" which was a
resolution by the Applicant and not the subsidiary company.
in the papers to show that KD Enterprises had authorized the
Applicant to institute these proceedings, nor any proof that
Enterprise is a subsidiary of the Applicant. A company would be
deemed to be a subsidiary of another company if that other company
a member of it and
the composition of its board of directors
African Company Law through cases 3rd Edition p.52. There has been no
such a proposition in this case.
has also tendered documents containing information given by people
who have not deposed to any affidavits in this case,
AT2, 3, 7 and 8
respectively. Neither has the authenticity of such documents been
established. Herbstein and Van Winsen - The Civil
Superior Courts in South Africa 3rd Ed. at 81 and Hoffmann - South
African Law of Evidence 2nd Ed. at 282 respectively.
having therefore failed to establish the authenticity of the
documents attached to his papers must fail in his case as
such documents could not be used in evidence. As such the documents
failed to support his claim.
circumstances of this case, the Application is dismissed with costs.
Applicant: Mr Mpaka
Respondents: Mr Mda
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