CIV\APN\37\93

IN THE
HIGH COURT OF LESOTHO

In matter
between:

DORBYL
VEHICLE TRADING AND FINANCE Applicant

COMPANY
(PROPRIETARY) LIMITED

AND

VINCENT
PHAKISO MASOABI lst Respondent

THE
COMMISSIONER OF POLICE 2nd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 10th day of
February. 1993.

This is
an application for an order in the following terms:

1. Directing
   the Commanding Officer of the Police for the District of Maseru to
   arrest the 1st Respondent and to bring him before
   this Honourable
   court to show cause why:

   
   

1.1 He (let Respondent) should not be committed to gaol for contempt
of Court in failing to hand to the Deputy Sheriff the vehicles

referred to in orders of this Honourable court dated the 11th
December 1992; and

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1.2 Why the 1st Respondent should not be directed to pay the costs of
this application on the attorney and client scale.

In 1. C. of A. (CIV) No. 18\1991

2. C. of A, (CIV) No. 30\1991

3. C. of A. (CIV) No. 31\1991

'Masechele
Khaketala

v.

'Mamohau
Malahleha & others (unreported) at p. 13 Ackermann, J.A. Said:

"It is necessary to stress that in the first contempt
application a rule nisi was not sought, but an order with immediate

effect directing the Deputy Sheriff to take appellant in custody and
produce her before Court on the 8th of April 1991. An order
in this
form was granted on the 4th of April 1991 by Molai. J. It is a matter
for regret to have to say, but it must be said, that
in the absence
of timeous and proper notice to the appellant of the first contempt
application, there was no justification at all
for seeking or
granting such an order. The arrest of any person but particularly a
73 year old woman) is a grave

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infringement of her most fundamental human rights of freedom and
dignity. The granting of such an order without notice is, in my
view,
a serious breach of the audi alteram partem principle for which there
is no justification. Even in a case of contempt of
court, which would
justify committal to prison, the desired object could be achieved by
issuing a rule nisi calling on the offender
to show cause on the
return day why he (or she) should not be committed for contempt".

Despite
the above authority which is binding on this Court, on the 1st
February 1993 Mr. Buys, applicant's attorney, did not seek
a rule
nisi, but an order with immediate effect directing the Commanding
Officer of the Police for the district of Maseru to arrest
the 1st
respondent and to bring him before this Honourable Court to show
cause on the 8th February, 1993 why he could not be committed
to
prison for contempt of Court.

In the
light of the above decision of the Court of Appeal the order which
was granted on the 1st February, 1993 was unlawful, defective
and
ought not to have been granted. I am of the view that on this ground
alone the application for committal to prison ought to
be refused.

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There is
a dispute of fact whether or not the 1st respondent was served with
the two Court Orders. The version of the deputy sheriff
is that on
the 21st January, 1993 he made an attempt to serve the two orders
upon the 1st Respondent. He refused to allow him to
remove the buses
and threatened to shoot him if he attempted to remove them

On the
other hand the 1st Respondent denies that he was at his home during
that period. He avers that he was at Ha Ramabanta where
he took care
of his shop business.

The above
dispute of fact cannot be resolved on affidavits because it is the
word of the deputy sheriff against that of the 1st
respondent. To
aggravate the difficulty the applicant has not filed any replying
affidavit to refute the allegations made in the
answering affidavit.

For the
reasons stated above the application is dismissed with costs.

J.L.
KHEOLA

JUDGE

10th
February, 1993.

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For
Applicant - Mr. Buys

For
Respondent - Mr. Phafane