CIV/T/436/2008

IN THE
HIGH COURT OF LESOTHO

In the matter between:

PERVAIS KHALIQ

AND

THE MANAGER ANTI-SMUGGLING 1^ST
RESPONDENT

THE COMMISSIONER OF CUSTOMS

AND EXCISE 2^ND
RESPONDENT

THE ATTORNEY-GENERAL
3^RD
RESPONDENT

Judgment

Delivered by the Hon. Mrs
Justice A. M. Hlajoane on 17th NOVEMBER, 2009.

I have already given an ex
temporae judgment in
this case on the 17^th
November, 2009 dismissing the Application with costs. I promised to
write a full judgment later and this now is the judgment.

The main prayer in these
proceedings was the release by the Respondents of an Isuzu truck,
white in colour bearing the following
particulars:-

(a). Engine no. 6HH1 –
208046

(b). Chassis no. FSR 33H2 –
3000122

which Applicant claimed to have
bought around 9^th
November, 2008.

Applicant showed in his founding
Affidavit that when the vehicle arrived in Lesotho, he duly followed
the relevant procedures of
having the truck declared and paid the
requisite tax duties. He had attached documents as proof of what he
alleged.

Annexure “PK1” page
11 of the record according to the Applicant, is the Custom and Excise
Clearance Certificate, Annexure
“PK2” page 12 of the
record, the value added Tax Certificate, Annexure “PK3”,
page 14 of the record, the
Tax Receipts and the Tax Declaration form
(SAD 500) Annexure “PK4” page 16 and 17 of the record.
All those documents
were prepared and signed for or issued by the
officers of the first and second respondents, and bare the date stamp
of first and
second Respondents.

Applicant has further shown in
his papers that whilst he was going through the process covered by
Annexure “PK1” to
“PK4” he had left the
vehicle in question with his friend and business associate one
Khurshed Ahmed in Mohale’s
Hoek. He said he learned later from
his friend that the aforesaid vehicle had been seized by the Mohale’s
Hoek Police for
using false number plates or false documents. But
Applicant was taken aback as no one had up to that stage, or at least
still
he instituted these proceedings, been charged with offences
relating to that registration or documents.

According to the Applicant the
vehicle remained with police till when he was informed that it had
been taken from the police by
officers of first and second
Respondents. Applicant had then approached the officers of the
Lesotho Revenue Authority with the
documents for the said vehicle but
he said they did not even allow him to produce such documents but
only accused him of evading
tax and cheating the government.
Applicant has attached Annexure “PK 5”, a Detention form
by Customs and Excise indicating
that the said truck was detained for
failing to pay or produce proof of payment of customs and Excise
Duties. The vehicle was
not yet registered when it was so detained
according to the Applicant.

The Respondents’ case on
the other hand has been that the Applicant has been instrumental in
the registration of the same
vehicle as evidenced by a Registration
Certificate in the names of Lenka L at page 55 of the record. The
allegations being that
Applicant had registered the vehicle even
before he bought it. They argued further that the said vehicle has
been used here in
Lesotho, for eleven months before paying for its
taxes and duties.

The Respondents
were saying that though Applicant has alleged in his papers that he
had bought his vehicle around 9^th
December 2008, but annexure “TJ1a” attached to their
answering papers showed that the same vehicle was bought on the
11^th
January 2008.

Responding to Annexure “TJIa”
Applicant contended that the document could not be taken as proof of
sale but only showing
an intention to buy which would only become
affective upon payment of the purchase price. The price on the
document is even reflected
in Dollars.

It would be worth noting that it
has not been established as to where Annexure “TJ1a to TJ1g”
came from. In their heads
of argument Respondents argued that
Applicant has failed to deny that Annexures “TJ1a – TJ1g
“were submitted
by him, alternatively on his behalf for
purposes of accessing how much customs duties and VAT were payable
with respect to his
vehicle. Respondents have not specifically said
the papers were found with the Applicant.

But again, looking at the
response by the Applicant at page 113 of the record in reply, he has
not shown that he knows nothing about
Annexures “TJ1a”
and others as “TJ11”. To confirm that he knew about such
annexures, he has shown that
he infact was not the importer of the
vehicle in question but Khurshed as shown in annexure “TJ11”.
Also that the
description of the vehicle in annexure “TJ11”
is the same as that of the vehicle in question as shown by the
Applicant
in his annexure “PK1” at page 11 of the record.
“PK1” which but indicated that the Applicant was the
importer
of the same vehicle.

Further, Applicant in his
Replying Affidavit at page 113 of the record has accepted that there
has been non-compliance with the
Provisions of Section 39 (1) of
Custom and Excise Act 10 of 1982, (the Act) but contented that the
2^nd
Respondent was estopped from alleging otherwise as his officers had
all the same issued him with the Customs Clearance Certificate

Annexure “PK1” to his founding papers.

Section 39 (1) (a)
reads:-

“Every importer of
goods shall within seven days of the date on which such goods are in
terms of Section
10, deemed to
have been imported or within such time as the Director may allow,
make due entry of those goods, in the form prescribed,
and declare to
the truth of such entry.”

Section 10 (1)

“for the purpose of
this Act all goods consigned to or brought into Lesotho shall be
deemed to have been imported into Lesotho.”

It has not been disputed that
the vehicle was brought to Lesotho from Durban. The Respondents have
alleged in their papers that
Applicant’s vehicle was imported
or dealt with contrary to the provisions of the Act and that in terms
of Section 88 (1)
of the Act the vehicle was and still is liable to forfeiture and
could as a result still be detained. That section prescribes
that
imported goods irregularly dealt with are liable to forfeiture.
Applicant as shown earlier on has owned up to having not
complied
with the Provision of Section
39 of the Act.

Applicant at paragraph 8 of his
founding affidavit pointed out that when the vehicle in question
arrived in Lesotho he followed
the relevant procedures of having it
declared and paid the requisite tax duties. At Paragraph 9 of the
affidavit he said when
all the above was being done, that is going
through that process, he had left the vehicle in the care and
custody of his business
associate and friend one Khurshed Ahmed in
Mohale’s Hoek.

What Applicant said above tend
to confirm what was deposed to by Motsilisi Thuhloane, Senior Customs
Officer in the supporting affidavit,
also the supporting affidavit of
Police Officer None None working at Interpol showing that the
vehicle in question was never brought
before his office for
inspection and clearance. Mhlontlo Zally, Principal Vehicle
Examiner, also showed that the vehicle was never
taken to Maseru
Traffic Vehicle Testing Station for inspection. Hlalele Rampai of
Criminal Investigation Division also showed
that the vehicle was
never brought to their office for inspection and clearance.

Tsiu Makunya on the other hand
stated in his supporting affidavit that he issued the said vehicle
with a Value Added Tax Clearance
Certificate because he was shown the
vehicle’s Lesotho Registration Certificate unaware that Value
Added Tax and custom duties
were not paid before such registration.
The documents reflected that the vehicle had been registered on the
9^th
January, 2008.

Relying on the statement by the
Applicant in his founding affidavit where he said as he was going
through the clearance process
he had left the vehicle behind with a
friend, the question to be asked would be how was that possible to go
through the process
in the absence of the vehicle? It was gleaned
from the papers filed that for clearance process to be conducted
there has to be
an inspection of the vehicle in question.

Applicant’s papers filed
of record only start from the time when he was dealing with the
vehicle having already entered the
country. The Respondents on the
other side have filed papers which showed where the vehicle
originated and when and how it ended
up being in Lesotho.

What also is of importance in
this case has been that both the Applicant and the Respondents have
attached to their papers a detention
form “PK5” (page 19)
and “TJ11” (page 67) respectively. It is one and the
same form from Customs and Excise
Division. The document reflects
that when the vehicle in question was so detained it already bore the
registration number AL 346.
Applicant only said he was not party to
the registration of the vehicle, without necessarily denying that the
vehicle was in fact
registered. It was for the Applicant to convince
the court on the papers filed that he truly and honestly followed the
provisions
of the Act in importing the vehicle into this country but
has failed.

Relying on the authority of
Plascon Evans
Paints ltd v van
Riebeck Paints
(pty) ltd billed 1984 (4) S.A. 623 at 634
the court had to prefer the version of the Respondents to that of the
Applicant. In fact the Respondents relying on Plascon’s
case and other authorities, asked the Court to assume the correctness
of the version put forward by them. They argued that because
there
was variance between their version and that of the Applicant in a

matter brought by way of motion
proceedings, which proceedings were designed to secure a final
relief, their version had to be believed.
I wouldn’t agree
more with that line of argument.

1. 
   M. HLAJOANE

   
   

JUDGE

17^th
NOVEMBER, 2009.

For Applicant: Mr. Nathane

For Respondent: Mr. Lichaba