IN THE HIGH COURT OF LESOTHO
In the matter between:
JACKPORT SUPERMARKET (PTY) LTD APPLICANT
MAKATLEHO MOTHE 1ST RESPONDENT
MANTŠANE ’NENA 2ND RESPONDENT
MAKANANELO MOERANE 3RD RESPONDENT
HIS WORSHIP SENEKANE QOBOLO 4TH RESPONDENT
HIS WORSHIP AMANDUS TAPOLE 5TH RESPONDENT
THE MESSENGER OF COURT 6TH RESPONDENT
MABEA MAKARA OFFICER COMMANDING – MASERU 7TH RESPONDENT
CENTRAL CHARGE OFFICE – COMMISSIONER OF POLICE 8TH RESPONDENT
THE ATTORNEY GENERAL 9TH RESPONDENT
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 14TH DAY OF JANUARY 2011
PARTICULARS OF THE PARTIES
The applicant in this matter is JACKPORT SUPERMARKET (PTY) LTD. It is a limited liability company which is duly registered in terms of the company laws of LESOTHO. It operates its business at CITY LIGHTS BUILDING -opposite SEFIKA SHOPPING MALL, MOSHOESHOE ROAD, MASERU CITY.
The 1st to 3rd respondents are Basotho – female adults residing at various places in MASERUand its surrounding villages. 4th and 5th respondents are judicial officers of MASERU MAGISTRATE’S COURTwho presided over the matter, CIV/APN/323/2010that is under review. The 6th respondent is the Messenger of COURTat MASERU MAGISTRATE’S COURT. He is entrusted with the enforcement and execution of the court orders issued out by the said MASERU MAGISTRATE’S COURT on the 15th and 17th DECEMBER 2010.
The last three respondents 7,8 and 9 are nominal respondents. The officer commanding the MASERU CENTRAL POLICE STATION, The COMMISSIONER OF POLICEand the ATTORNEY GENERAL.
FACTS OF THE CASE
PW3 - MAZIZANGELE DAKATHAHtold the court in her evidence that she and some members of her society went to JACKPOT SUPERMARKET to purchase goods for an amount of [M21,945.75]- Twenty-One Thousand, Nine Hundred and Forty-Five Maloti and Seventy-Five Lisente.
There were a lot of goods which this witness - MAZIZANGELE DAKATHAH purchased there atJACKPOT SUPERMAKET, on behalf of their society. It emerged from the evidence of one LERATO KHOSIthat the supermarket in question hires additional casual/Temporary staff who are hired specifically to assist the societies during the Christmas season shopping period. Evidence of LERATO KHOSIis that she as the shop assistant helps the customers to pick up items from the shop’s shelves. The customers place the goods in the shopping trolley. When all the items in the list are loaded into the shopping trolley, the shop assistant and the customers in question approach the cashier. Once at the cash point, or till/computer, the shop assistant calls out items one by one to the cashier who puts the same into the cash machine. Once the total number of items purchased has been called out to the cashier, she produces the total cost by displaying it on the screen of the computer, which was printing out the till slip as the items were entered into the machine or the said computer. The cashier demands payment of the purchase price which the computer has displayed. The customers pay. The cashier takes out the till slip and hands it over to the customers immediately after receiving the payment. In the present case, the customer was not given the till slip after making the payment. The floor manager had to be called to come and produce the copy of the missing original till slip. The customers were still waiting at the till in order to get their till slip.
At the timeMAZIZANGELE DAKATHAH and the other member or members of her society approached the cashier; prior to the running of their items to be purchased by them, one girl presumably the staff member of JACKPORT SUPERMARKETenquired from the cashier thus, “shall I tell them?” This girl was looking at MAZIZANGELE DAKATHAHand members of her society. The cashier quickly replied, “no, they are not the ones!” MAZIZANGELE and the other members of her society wondered what was going on. They demanded without success to know why they are not the ones. They got no joy. They suspected that they were being cheated by these staff members of JACKPOT SUPERMARKETespecially when they were referred to as “not the ones”. The girl who also works in that supermaket who was next to MAZIZANGELE remarked thus, “These things will come out” – addressing or directed at the cashier. Their fears that they were being cheated by the members of staff there at the JACKPORT SUPERMARKET, were confirmed in their minds when they heard this remarks. They got worried that all is not well. But they did not know exactly what was going on with these girls. They suspected that these girls who were working in that supermarket were conspiring to cheat them – these particular customers. They decided that the best they can do in those circumstances is to check and counter check their items purchased against the till slip which they will receive at the end of the transaction. It was the authorized copy of the original till slip which was found to be missing immediately after they had made the payment. I must at this juncture explain how and when the copy of the original till slip was produced. The cashier after running all the items through and showing the total purchase price asked for payment of the cash from the customer. MAZIZANGELE counted her cash. She passed it on to another member of her society to recount. She did. Then the cash was paid over to the cashier. The cashier counted the amount of cash paid to her and found it to be in order. She passed it on to another girl who works together with her. She also recounted that amount of cash paid and found it to be in order. The cashier at this juncture called the floor manager of the shop to come because there is a problem with the computer which does not produce the cash or till slip. Of course the till slip had been produced. The cashier had removed it and had hidden it on her person. One African gentleman who is an employee there arrived at this till first, after the call for help was made, noticed that the paper on the reel of the machine is finished. He replaced it. The floor manager also arrived at that same till. He was shown the empty reel and the figures displayed on the screen of the computer. He used his pass word to request the computer to produce the copy of the original till slip as the customer MAZIZANGELE and her companions were there at the till still waiting for their till slip to show their goods and the payment they made for them. The floor manager authenticated that copy by signing on it and handed it over to the customer – MAZIZANGELE. She took it. She and her companions checked and counter checked their goods against that cash or till slip because they suspected that these girls at the till particularly those who made the enquiries if they should be told and being told by the cashier that they were not the ones. Their goods and items shown on that copy of the till slip reconciled. They were satisfied that their transaction was complete and correct.
It is the policy of the JACKPOT SUPERMARKETto deliver the goods where the purchaser want them if the total purchase price of the goods is over ten thousands Maloti [M10,000-00]. Therefore the goods of MAZIZANGELE and her companions were loaded on the shop’s motor vehicle and delivered at the destination of their choice – their homes.
The original till slip which was hidden by the cashier on her person at the time she called the shop’s floor manager to come to her till to produce the copy for MAZIZANGELE and her companions is given or passed on by that cashier to another customer - 1st respondent in this matter. When and how that original till slip for the cash transaction between MAZIZANGELE and her companions and the shop came into the hands of one MOLIEHI who is a shop assistant there in the cosmetic department, is only known to the conspirators. MOLIEHI assisted by one casual worker PAKISO whom she asked to help her took the goods out of the shop, managed to take out substantial number of items shown on that original till slip whose copy was produced, authenticated and handed over to the customers - MAZIZANGELE and her companions. The cashier in her evidence said she handed over original till slip to MAKATLEHO MOTHE who is the 1st respondent in the matter under review. According toMOLIEHI, MAKATLEHO handed the said till slip to her so that MOLIEHI can take and remove from the shop shelves the items listed in the said till slip. The items were being taken out of the shop but placed within the premises of the shop where JACKPOT SUPERMARKEThas allocated a space for one of its employees to sell the damaged goods for the shop thereat. These goods – [stolen from the shop by using for the second time the till slip which had already been used to take from the shelves and the shop premises the goods delivered at MAZIZANGELE’s and her companions’. These goods were placed together or amongst those damaged goods which are not being sold in the shop. One alert security guard who was checking the goods as PAKISO and MOLIEHEwere taking them from the shop shelves and out of the shop, notices that these goods are identical in all respects with the goods which had just been delivered at MAZIZANGELE’s and her companions’. What’s more the till slip is the original of the copy which was given to MAZIZANGELE and her companions. It was the one and the same - not another till slip.
The security guard ordered Pakiso during the last of his runs to take the goods out of the shop. “Hold your horse”. The inquiries into exactly what was going on commenced. The said goods are still on the premises of JACKPOT SUPERMARKETalthough they are outside the shop. According to MOLIEHIthey were with or amongst the damaged goods which JACKPORT SUPERMARKEThas put up for sale out there. MOLIEHIand PAKISOare or were at that time both employed by JACKPOTSUPERMARKET. It was during the course of the performance of their normal duties as employees of the applicant herein. They had not resigned from their positions, i.e they had not relinquished their responsibility and loyalty to their employer who was paying their salaries although they were in the process of betraying their employer’s trust bestowed on them. Therefore they were not, they could not possibly be the agents of the thieves or any society or anybody who wished to steal the said goods.
A great deal was made by respondent’s counsel that the goods were left in the care and custody of MOLIEHI– an employee of the applicant but now according to him, the agent of the 1st to 3rd respondents. Even if an employee conspires with a third party to steal from his or her employer, he still remains an employee and owes a duty of care to his or her employer. He or she continues to be an employee until discharged. He or she cannot be an agent of third parties against his or her employer.
What exactly is an agent? An agent is a person, who, by performing juristic acts for and on behalf of another person known as his principal; act in the place or on behalf of the principal in relation to third parties. WILL’S PRINCIPLES OF SOUTHERN AFRICAN LAW - Page 592. Is the sales assistant in the shop representing the shop or the customer or the intending thief? According to Mr Tjelle he can act for and on behalf of the customer or the thief against the shop. I have not heard of such absurdity. While in the shop and performing her duties as such, the shop assistant is the agent of no one but that of the shop which has employed her.
Now who was the possessor of the goods left outside the shop – left amongst the damaged goods which at that very same time were offered for sale to the general public by this shop – the applicant herein? They were left in the care and custody of the man employed by the applicant shop to sell those damaged goods outside the shop for and on behalf of the said shop. Is the man representing the shop – applicant herein or was he representing everybody and anybody – except the shop because he has been asked by MOLIEHIto look after the [stolen goods] for and on behalf of the thieves.
It is true that a thief who has had peaceful possession can be despoiled if the owner repossesses his or her stolen goods without legal recourse. Possession is the physical control by a person, of a real thing [such as those goods] with intention of keeping the control of it for his own benefit. GROTIUS 2.2.2 voet 41.2.1
Groenewald v Vander Merwe 1917 AD 233 at 238. Scholtz v Faifer 1910 TS 243 at 247.
Who is the possessor of the goods on the premises of the shop? Anybody who wants them and asks the shop assistant to keep them for him? Did the respondents have the physical control of the goods? How? By asking the employees of the applicant shop to take care of those goods on their own behalf? When did the employees of the applicant shop relinquish their responsibility and loyalty to their employer? There must be some priority exercised here. Does an employee of the applicant supermarket act in the place of applicant – his or her employer or does he or she act on behalf of the intending customer/thief?
Were the goods in the possession of the thieves or the thieves were in the process of removing them? Anywhere in the world, - not only here in Lesotho if a person shout “stop the thief or catch that thief,” the thief who already is holding a stolen item in his hand e.g. a chicken or sheep or anything. Everybody who hears that call, gives a chase after the thief and if they catch him he is not only dispossessed. In Sesotho he is said to be a dog and should pay with his head. It is a common practice that then and there the alleged thief is assaulted by members of the public. Dispossessing and/or taking possession of the goods which the thief was in the process of removing from the control of the owner, cannot be spoliation. The 1 – 3 respondents assisted by MOLIEHI and PAKISO were in the process of taking away and removing the goods when they were caught in the act and stopped. The goods had not in fact left the shop premises.
SPOLIATIONis a remedy which is available to a person who before he was dispossessed was in peaceful possession. The 1 – 3 respondents herein were never in possession of those goods. The said goods were still in the possession of the shop – the applicant herein. When the thief is in the process of taking away the goods and is stopped in the tracks he is not despoiled. Every person is entitled to protect his or her property. Protection of the property by its owner must include “the right to stop the thief from taking and removing the goods out of the owner’s control.” If another person wishes to take another’s goods by so wishing he does not become a possessor – let alone a peaceful possessor. Pakiso and MOLIEHI allegedly acting for and on behalf of the intending “purchasers”/ thieves – had not successfully removed the goods from the shop premises when they were stopped. The remedy of spoliation cannot be available to them nor to those who were in joint venture with them, such as the 1 – 3 respondents. Yes, they all conspired to the deal but they did not succeed to take and remove the goods from the shop. Therefore they were never in possession of those goods.
On what grounds do the proceedings of the lower courts become subject for review :- Page 326 Para 176 Beck’s THEORY AND PRINCIPLES OF PLEADING IN CIVIL ACTIONS.
(1) Incompetency of the court in respect of the cause of action such as absence of jurisdiction.
(2) Incompetence of the court in respect of the judicial officer such as that he or a near relative had an interest in the cause.
(3) Malice or corruption on the part of the judicial officer.
(4) Gross irregularity in the proceedings.
(5) The admission of evidence which should not have been admitted or the rejection of evidence which should have been admitted.
These, the two last mentioned i.e. [(4) and (5)] are the most relevant grounds in our present case. The alleged thieves are holding an original till slip. This evidence was apparently admitted. It should not have been admitted. There was no evidence let in that inferior court to show it how and when that original till slip came into the hands of the alleged thieves. Most of all, the alleged commission of the crime was still under investigations. It is not proper to dispose of the subject matter of the investigations before those investigations are concluded. This too was an irregularity.
The till slip if it was produced before that court – being the original easily made the judicial office accept such evidence when he should not have accepted it, had he the benefit to hear the evidence of how it came to be in the hands of the 1 – 3 respondents. It was stolen. He admitted that evidence which he should not have admitted. Therefore that alone, made these proceedings reviewable. He apparently rejected the copy which was produced and authenticated when the original till slip had been stolen and the customer who had just paid [M21,945.75] was still at the till, waiting for proof of her payment for that amount. This is an exceptional case, where evidence supports the production of the copy as a far superior evidence than the production of the original. This is the case where the copy of the original has by far the heavier weight of evidence than the original.
On this ground the application must succeed.
WHAT gives the High Court power to set aside the order of the subordinate court? The High Court is empowered by SECTION 7 HIGH COURT ACT 1978.
The application is granted as prayed with costs
THE POWER OF THE 1ST RESPONDENT ON THE POLICE
A few remarks about or on the alleged corruption.
How wide spread is the corruption in Lesotho? How deep rooted is it amongst ordinary Basotho? Going to Police Station to select a police officer of her choice ….. seemed to be the easiest thing for the 1st respondent she succeeded to find one who cooperates with her. Without investigating the matter he decided that she is entitled to the goods. That is nothing short of extraordinary fit. It is her evidence before this court that she saw two or three police officers come to attend to the scene of the alleged crime. By their mere appearance she decided that those two police officers cannot help her. She made up her mind to reject them off hand then and there. She decided to go to the police station to get the police officer of her own choice. She was satisfied that the police officer she got was the right one to assist her. She seems to have a great deal of influence to enlist the cooperation of the police officers of her own choice in the perpetration of the alleged offence.
The first three respondents – Makatleho Mothe, Manatsane ’Nena and Makananelo Moerane have not been interviewed by the police. Days went by! Weeks went by! Were there any investigations in the alleged fraud? How come these ladies had not been invited by the investigating officer to carry his investigations beyond PW1’s claim? The applicant also complained to the commander. It was pointed out to him that the applicant is not happy with the manner of investigation by the police. Presently the new Investigating Officer has been appointed. Even after a month since the commission of the alleged offence no statement had been recorded from anyone of the ladies involved in this fraud. How did the police officer reach the conclusion that they are entitled to the goods which he urged the court to release to them? The investigations still have some long way to go in this matter. The goods cannot be disposed off before the conclusion of the investigations. This was yet another irregularity concerning the spoliation proceedings and the resultant order of disposal.
As I said, this application is granted as prayed with costs.
For Applicant: A.M. Chobokoane Chambers
Respondents: Mr. Mosito K.C. – Assisted by Adv. Tjelle for 1st, 2nd and 3rd
No Appearance for the rest of the respondents
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