ClV/APN/448/2004
IN THE HIGH COURT OF LESOTHO
In the matter between;
BORECCA BENEVOLENCE (PTY) 1sT APPLICANT
ELIJAH HLALELE 2nd APPLICANT
LEJONE MOLETSANE 3rd APPLICANT
AND
COMMISSIONER OF POLICE 1st RESPONDENT
ATTORNEY GENERAL 2nd RESPONDENT
STANDARD BANK (LESOTHO) LTD 3rd RESPONDENT
JUDGMENT
DELIVERED BY THE HON. MRS JUSTICE K. J. GUNI ON THE 23rd AUGUST, 2007
There are six parties in this application proceedings. Three of them are applicants. Three are respondents. Three of those parties [i.e. the 1st and the 2nd applicants on the one hand and only one of the respondents, - the 3rd ] have filed the papers which have been placed before this court for hearing. Perhaps I should start with the description of the parties as set out in their papers. BORECCA
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BENEVOLENCE (PTY) LTD is the 1st applicant. The 2nd applicant is ELIJAH HLALELE. The 2nd applicant has deposed to the Founding Affidavit on behalf of the 1st applicant. He claims he is fully authorized to speak for and represent the 1 applicant. In this Founding Affidavit, the 2nd applicant describes the 1st applicant as a registered company in terms of the Laws of Lesotho. Nothing is said about its address where it operates. Nothing is said about its principal office - head office of its business. Nothing is said about its business. What does it do? Where does it do it? This court has jurisdiction to entertain the matters where parties resides within its area of jurisdiction or the matter itself arose within this court's jurisdiction. Nothing to this effect has been set out, in these papers. What has been said about the address of the 2nd applicant, should have been said also in respect of the 1st application.
The 2nd applicant describes himself as the director of the 1st applicant, a male Mosotho adult of Maseru. In the Founding Affidavit, nothing at all is said about the 3rd applicant who has filed the supporting affidavit to the Founding Affidavit. Therein he claims to have read and understood the affidavit of the 2nd applicant. He wishes to align himself with it. Nothing could be as vague and embarrassing as the contents of this so called supporting
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affidavit. What is this 3rd applicant, other than being a male Mosotho Adult of Lower Thamae? What is his interest in this matter? Why is he cited? What does he want before this court? This is a total misjoinder of a party who has no interest at all in the matter.
Of the three respondents only the 1 and the 3 respondents have been described in the Founding Affidavit There is no description of the 2nd respondent. There are no reasons in the papers of the applicants in which it is set out why the Attorney General is sited as a party. This manner of drawing up affidavits leaves a lot to be desired. In the Founding Affidavit which cites the parties, there must always be a description of parties and their relationship to the matter in which they are cited.
In fee Notice of Motion there are specific prayers - seeking relief against the 1st and 3rd respondents only. Subsequently the prayer against the 1st respondent was abandoned because the items which had been taken by the 1st respondent had been returned to the applicants. The remaining prayer is that the 3 respondent should show why it cannot be directed to release the funds in Account No. 0121014887201 to the applicants.
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Of the three respondents only the 3rd respondent has filed what is described as the Opposing Affidavit. There is a Notice of Intention to Oppose filed as required in terms of the rules, Rule 8 (10) HIGH COURT RULES - Legal NOTICE No. 9 of1980.
Technically this application seems to be proceeding unopposed, despite the conclusion of the deponent of the opposing affidavit that this application be dismissed with costs. The 1st and the 2nd respondents have filed no papers at all. This is a clear indication to this court that they have no interest in the result of this application. They must therefore be willing and ready to abide by the decision made by the court in this matter. As the matter stands now, there is no specific prayer against anyone of these two respondents [i.e. that is the Commissioner of Police and the Attorney General]. The problem is between the 1st and 2nd applicants and their bank -which is the 3rd respondent herein. The bank does not claim ownership of its client's money held by it in the account opened and operated by the 1st applicant therein. The unsubstantiated allegations that the funds in that account are stolen, do not entitle the bank to withhold the money which does not belong to it. The bank's function was properly the blowing of the whistle if it believed that there was a crime about or being committed. Further unauthorized detention of someone's funds by the bank becomes unlawful.
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FACTS OF THE CASE
BORECCA BENEVOLENCE SYSTEM has a bank account number 0121014887201 held at Standard Bank - Lesotho. The bank statement bearing the number and this name has been filed of record by the applicants. It is an undisputed fact that access to the account number and name set out above has been denied. The reason for the said denial of access to the said account is, according to the averments in the opposing affidavit by the managing director of the 3 respondent, [Paragraph 3 in response to paragraph 11 of the Founding Affidavit] "Reliable reports were made to the 3 respondent that funds which were paid into the account may be funds which were stolen or obtained by fraudulent means. Those cheques drawn against the accounts of LNDC JH 1 and the Ministry of Finance/JHl may contain fraudulent or cloned signatures. While investigations are ongoing the 3rd respondent is not entitled or allowed to give access to the funds".
It is apparent that the 3 respondent may have acted as a whistle blower when suspicion arose regarding the cheques deposited in the said account. The police were called. The 2nd applicant was taken by the police to their offices where investigations in the matter went on. Bank cards and cellphone of the applicants which were seized by the police were subsequently released.
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This application was filed with this court on the 17th September 2004. The service of the papers upon all the respondents was properly effected on that same day. As I have pointed out earlier at the beginning of this judgment, the Commissioner of Police and the Attorney General have not filed any papers. This is a clear indication that they are prepared and willing to accept whatever conclusion this court comes to regarding this application. Their attitude, as indicated by their conduct, is a total acceptance of the decision of the court. They are not opposing the granting of this application. They have placed nothing before this court to challenge or deny the allegations made against them.
The applicant sought and obtained a rule NISI in the following terms :-
Dispensing with the Rules of Court appertaining to forms, notices and service of process herein on account of the urgency of the matter.
RULE NISI be and it is hereby granted, returnable on a date and time to be determined by this Honourable court, calling upon the Respondents to show cause, if any, why the following order may not be made final:
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Restraining and interdicting 1st Respondent from threatening with torture and/or harassing the Applicants;
Directing the 1st Respondent to return cell phones and Bank Cards of the Applicants;
Directing 3rd Respondent to release the funds in Account No. 0121014887201
Directing Respondents to pay costs of this Application on Attorney and client scale;
Grating Applicant further and/or alternative relief as this Honourable Court may deem it fit and just
5. Prayers 1 and 2 (a), (b) and (c) to operate with immediate effect as an interim order.
The two prayers:- 2 (a) and (b) are specifically directed at the 1st respondent. At the hearing of this matter the counsel for fee
applicants pointed out that fee applicants withdraw or abandon prayer 2(b) because on fee 17th September 2004, fee items listed in prayer 2(b) were Released to fee applicants. Furthermore, fee 1st respondent has filed no papers to oppose fee confirmation of fee rule nisi obtained against them in both prayers - 2(a) and (b). The failure to file opposing papers is an indication feat there is no opposition to fee final confirmation of feat rule NISI obtained against.
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If the 3 respondent was suspicious after allegedly receiving what it termed "reliable reports'' It acted properly by alerting the police who took immediate steps and investigated the matter as shown in the Founding Affidavit. The Police investigations must have yielded some positive results. The police may have discontinued their investigations. Their release of the items they had seized during their investigation obviously shows that they have no farther use of the applicants' bank cards and cell phone.
Who is carrying out the alleged investigations that justify the indefinite denial of access by the bank to the owner of the account? The bank does not claim that it is conducting the alleged investigations itself. It does not show any other person who claims to be engaged in the allegedly "ongoing investigations". Because of the attitude of the police in this matter, the 3rd respondent clearly is on its own. The reasons for its denial of a right of access to the applicants to operate their bank account as they are entitled to, must be given by the bank. So far the bank has given no reasons. Considering how long ago the alleged investigations have been going on, something if at all there was any fraud, or theft of those cheques must have been uncovered. If the signatures were cloned, forged or fraudulently obtained police long ago, in 2004 September or thereabout, should have found that allegation correct or false. From the police behaviour including the return of the items such as bank cards belonging to the account holder in question, and then-self restrained to oppose the granting of this application, shows that their investigations revealed to them that there was no fraud, theft or forgery being committed by the alleged suspect at that time.
For these reasons the rule NISI is confirmed with costs as prayed.
K.J.GUNI
JUDGE
For Applicant: - Mr. Molapo
For 1st & 2nd Respondents: - Mr. Putsoane
For 3rd Respondent: - Mr. Buys
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