CIV/APN/236/04
IN THE HIGH COURT OF LESOTHO
In the matter between:
HUMANITARIAN RELIEF LESOTHO
(Formerly DORCAS AID INTERNATIONAL
LESOTHO 1st APPLICANT
FRANK TS'OTETSI MAKORO 2nd APPLICANT
AND
DORCAS AID INTERNATIONAL 1STRESPONDENT
THE OFFICER COMMANDING CID
(FRAUD SQUAD) 2nd RESPONDENT
THE ATTORNEY-GENERAL 3rd RESPONDENT
JUDGMENT
DELIVERED BY THE HON. MR. JUSTICE G. N. MOFOLO ON THE 29th DAY OF OCTOBER, 2004
This is an application in which the 1st respondent sought issuance of a Search Warrant from the Senior Magistrate Maseru on 02 June, 2004 in respect of property comprising annexures 1 and 2 'The property of Dorcas Aid International'
The Search Warrant was duly issued as a result of which some property of the1st applicant was seized. It is as a result of the issuance of
the Warrant of Search and seizure of some property that the 1st applicant has approached the court for an order in the following terms:
Dispensing with the Rules of Court concerning forms, notices and service of process on account of the urgency of this matter;
Abridging the periods of notices and service of process herein by directing;
2.1 Applicants to serve Respondents with the notice of application herein not later than 12:00 noon on 4th June, 2004;
2.2Respondents to file their Answering Affidavits, if any, by 4:30 p.m. on 4th June, 2004;
2.3Applicants to file Replying Affidavit by 10:00 a.m. on Monday 7 June, 2004 parties to argue the application at 11 a.m. on 7 June, 2004 wherein Applicants will pray for an order in the following term
2.2.1 A rule nisi issue returnable on 7th June 2004 at 11:00 a.m. calling upon Respondents to show cause if any, why the following
order shall not be made final on that day, namely:
Interdicting Second Respondent and/or officers subordinate to him from giving effect to the Search Warrant (annexure "FM1" hereto) pending finalization of this matter;
Cancelling and setting aside a Search Warrant (annexure "FM1" hereto) dated 2nd June 2004 currently in the possession of officers subordinate to Second Respondent, pending finalization of this matter;
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Directing Second Respondent and/or officers subordinate to him to restore to First Applicant all the property they have seized in consequence of the Search Warrant (annexure "FM1" hereto) pending final ization of this matter;
Interdicting first and second respondents from interfering with Applicants in any manner whatsoever with the possession, custody and use of all the property listed in annexure "FM1" save by a due process of law;
Directing first respondent to pay the costs hereof on an attorney and client scale, and the other respondents to pay the costs hereof on an ordinary scale in the event of their opposing this application;
Granting Applicants further and/or alternative relief.
2.3.2 Prayers 2.3.1 (a) & (d) to operate with immediate effect as interim orders.
The Civil Registry office of the High Court appears to have received the application on 4 June, 2004. And yet on 3 June, 2004 appeared Mr. Ntlhoki before court saying applicant and 1st respondent have been to court wherein the matter was settled and yet 1st respondent was going all over it again despite the settlement reached. Perhaps Mr. Ntlhoki was alluding to the fact that parties had been to court in CIV/APN/516/2003 the result of which was a Deed of Settlement "FM5" between Dorcas Aid International and Dorcas Aid International Lesotho in CIV/APN/516/2003 in which
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subject-matter of annexure 1 was not decided and subject-matter of annexure 2 was decided.
The court had, however, granted the order in terms of prayers 1, 2 (2.1, 2.2 & 2.3) and 2.3.1 (a) and (d) of the Notice of Motion and made the rule returnable on 07/06/04 at ll a.m. In view of the fact that the application was opposed, both Mr. Ntlhoki and Mr. Louw had appeared before court on 4 June, 2004 and the matter and hence the rule had been extended to 24 June, 2004 and on 24 June parties had appeared postponing the matter and hence the rule to 19 July, 2004 for argument. The parties duly argued before me on 19 July, 2004.
Facts of this case are that according to the Search Warrant annexure "FM1" the police approached Magistrate for the district of Maseru for issuance of a Search Warrant.
The warrant states "whereas it appears to me on information taken on oath that the following goods, viz-" In handwriting
"See Annexure 1 and 2"
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The property of
In handwriting: Dorcas Aid International
Have been stolen and are concealed in the house or premises etc. etc.; the document is stamped with the Magistrate's official stamp of 2 June, 2004 and signed by the Magistrate. Ex facie it appears there was information supplied the magistrate on oath as a result of which he/she issued Warrant of Search in respect of "the property of Dorcas Aid International.
Unfortunately, as it so much happens in our courts, a host of extraneous arguments were brought to bear to cloud real issues the real issue being:-
who applied for the Warrant of Search before the Magistrate;
in respect of whose property the Search Warrant was issued;
I am of the view that whoever assets that the Search Warrant was not applied for by Dorcas Aid International or that the property subject-matter of the Search Warrant is not Dorcas Aid International's the onus of proof is on him to prove his assertions on a balance of probabilities. I am to mention, at this stage that there is evidence and it has been submitted on behalf of respondents that the property subject-matter of the search warrant is not
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Dorcas Aid International property but the property of Dorcas Aid South Africa and may add that in so far as the search warrant is concerned, Dorcas Aid South Africa has not joined issues claiming the property save as deposed to by Ms. Shale of Lesotho Mounted Police Service and Mr. Louw's from the bar who further submitted the court was to consider facts in their totality and evidence presented in other cases. Mr. Louw has also submitted on the ground alone of the non-joinder of the Magistrate who granted the search warrant the application be dismissed. Mr. Louw took no points in limine preferring the court to hear him on merits. However Mr. Ntlhoki in his Replying Affidavit has preferred to take a number of points in limine and regarding these I would like to respond as follows:
At 3.1 of his points in limine Mr. Ntlhoki says the Answering Affidavit on behalf of the second and third respondent is no answering affidavit in that it does not purposes to answer averments in the founding affidavit and that the pleading and avoidance by the Respondents to join issue with applicant's affidavit is embarrassing. And yet I would have thought this court is here concerned with criminal investigation in which an investigator is concerned with interests of a complainant. While it is true facts raised by the applicants have not been issuably answered, by and large
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light has been shed on the purport of the warrant of search and it cannot be said that applicants are left in the dark or prejudiced. Besides, it seem to me since in application proceedings affidavits constitute not only the evidence but pleadings, and while it is not necessary that an affidavit should set out a formal declaration or answering affidavit set out in a formal plea, the documents should nevertheless contain, in the evidence they set out, all that would have been necessary in a trial and I am satisfied that the opposing affidavit set out to achieve this (see SA Diamond Workers' Union vs. Master Diamonds Cutter's Association of SA, 1948 (2 PH A83(T)) at 283. See also Triomf Kunsmis (Edms) Bpk v AE & CI Bpk en and ere, 1984 (2) SA 261 (\V) at 269-G-H; Saunders Valve Co. Ltd vs. Insamcor (Pty) Ltd, 1985 (1) SA 146 (T) at 149C.
3.2 Hlajoane J's judgment was not in rem for it was decided on technicalities (points in limine) and not on merits. The judgment was not final and definitive and cannot rank as a judgment in rem.
3.3 While I agree that D/Inspector Shale's opposing affidavit was in stark contrast to what was represented before the Magistrate to obtain the search warrant, I am of the view that this is a matter that belongs to the merits of the case to be decided after the evaluation of all the evidence presented.
3.4 I do not entirely agree because the deponent was deposing as she did in a representative capacity.
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3.5 This court is not able to issuably respond to this because attached annexures have not been specified or identified.
3.6 I have already said that the deponent to the affidavit by reason of being an investigator in the case represents respondents'
interests and is entitled to have deposed as she did. In the circumstances I have had no hesitation but to dismiss points taken in limine in their entirely and they are so dismissed.
As to merits, I agreed with Mr. Louw against Mr. Ntlhoki that the court is entitled to have regard to evidence tendered in other proceedings annexed to this application and from them I am satisfied that the property subject-matter of the application is the property of Dorcas Aid South Africa. However, I am of the view that a wrong party applied for the Search Warrant and in so applying misrepresented the true facts by saying that the property belonged to Dorcas Aid International when in truth the property belonged to Dorcas Aid South Africa. Undoubtedly the statement that the property subject-matter of annexure 1 was that of Dorcas Aid International was false and intended to be acted upon as it was acted upon. By claiming the property belonged to Dorcas Aid International it was intended to deceive and cheat.
In so far as the validity of Search Warrant is concerned, Dc Wet and Others vs Willers N. O. and Another, 1953 (4) SA 124 (TPD) is spot on This is a case in which a search warrant relating to fraud was issued by a
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Police Peace Officer, documents to be searched for were claimed to belong to or were described as the property of Wilford Harry Weston. When the matter came on appeal, upholding the appeal and differing from the trial court which found even if the property did not belong to Wilford Harry Weston at least it was in his possession and under his control, the Transvaal Provincial Division differing from the court below found per Ramsbottom J. at p. 127 that: "I have no doubt when the word "property" was used in this context it was meant documents of which Wilford Harry Weston was the owner, not documents of other person which happened to have been in his possession and under his control —? Again on the same page, 'they therefore had the power to search and remove only those documents of which Wilford Harry Weston was the owner —.' In upholding the appeal the court had found the power conferred on police had been exceeded.
No, I cannot accept this, 1st respondent is not playing ball with the court and plays a game of hide and seek. In the Deed of Settlement annexure "FM5" in CIV/APN/516/03 Dorcas Aid International released to Dorcas Aid International Lesotho:
Photocopier/Fax machine canon Multipass C600F
Battery charger, HP colour printer
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Items to be searched at Dorcas Aid International instance are:
Battery Charger, Photocopier + Fax Machine
Canon Multipass C600F and HP Colour
Printer (HP - C6487C)
I see no difference in either items these being, to this court, identical the only difference being that after Dorcas Aid International realized it had claimed the Search Warrant it dawned to it that it had, in an earlier application, released the items to Dorcas Aid International Lesotho and as it would not do so again decided to pass the buck to Dorcas Aid South Africa. This, in so far as this court is concerned, is another misrepresentation committed and my view is that it is material in that it is intended to paint a false picture and not only deceive but cheat applicants as I have said above.
Mr. Louw has submitted that as the Magistrate was not joined in the proceedings on this ground alone the application is to be dismissed.
1 couldn't disagree more for it is respondents who claim that the property subject-matter of the Search Warrant is not Dorcas Aid
International's but that of Dorcas Aid South Africa. Since it is respondents who assert the contrary, the onus is on them to prove
their assertion on a balance of probability. Applicants are not claiming that the Magistrate did anything
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wrong save that a wrong party appears to have applied for the search warrant. Indeed I take, as I have said above, Dorcas Aid International application for a search warrant as misrepresentation of true facts for the true fact is that the vehicles are the property of Dorcas Aid South Africa according to what comes from both Dorcas Aid International and Dorcas Aid South Africa in previous hearings.
This does not help the respondents' case as I said above for a wrong party applied for the Warrant of Search. When Dorcas Aid International claimed the property to be its own, this was false.
As to non-joinder, the Magistrate has no personal interest in the matter save acting as she did in her/his official duty. These are not review proceedings necessitating joinder of an official concerned with the decision as when chairman of a Board would require to be joined (see Safcor Forwarding Johannesburg (Pty) Ltd. V. National Transport Commission, 1980 (3) 1108 (W) and Prospect Investment Company Ltd. v. Chairman Community Development Board and Another, 1981 (3) SA 500 (T). The contention that the Magistrate should have been co-joined is accordingly rejected in that the Magistrate did not have a direct and substantial interests in the matter
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There is also evidence that Dorcas Aid International Lesotho was approached by the Traffic Department to the effect that since the vehicles operated in Lesotho for more than six months it was required that they be registered in Lesotho so that their registration more than anything was a legal requirement.
I have had a close look at annexure "FM5" being Deed of Settlement and accompanying annexures 1 and 2 and have come to the conclusion that items which were released to Dorcas Aid International Lesotho by Deed of Settlement as above cannot be relitigated while items forming subject matter of annexure I can be relitigated in that there was no finality. In case I did not say so, items that were released to Dorcas Aid International Lesotho and seized as a result of the Search Warrant are to be returned to 1st applicant as successor to Dorcas Aid International Lesotho. I also note that in terms of the Deed of Settlement above the 1st respondent agreed 'to abandon the name DORCAS AID INTERNATIONAL nor use any trade name, service, marks, logos and symbols of applicant,' further:
"The Registrar of company's be and is hereby ordered to take all necessary steps to have the name of DORCAS AID INTERNATIONAL LESOTHO amended in the Registrar of Companies. The said amendment shall have no effect on any rights that accrued to first respondent, its successors, legatees, heirs and assigns prior to and in consequence of this Deed of Settlement."
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What puzzles this court is the fact that it would seem Dorcas Aid International Lesotho was allowed by the 1st respondent to register a company with the proviso that names "DORCAS AID INTERNATIONAL" were excluded and that the applicant having effected necessary amendment in the Register of Companies the amendment or name of the new company was to have "no effect on any rights that accused to first respondent (applicant) its successors, legatees, heirs and assigns prior to and in consequence of this Deed of Settlement."
I have meticulously gone through the record of proceedings to discover whether anywhere 2nd applicant was alerted as to the type of company to register and in particular whether it was to be "a branch of the International Organization" as Mr. Groot claimed. In my view if there was such an intention this should have formed part of the Deed of Settlement or some other communication before the 1st respondent was registered.
It is to be recalled that although, strictly speaking, vehicles subject-matter of annexure 1 cannot rank as rights that accrued to 1st respondent (applicant) for all intends and purposes these vehicles fall under applicant's pool, the reason the Traffic Department ordered their registration in the
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country. It may be asked when exactly was 1st applicant or 2nd applicant given instructions to register applicant as breach of the 1 st respondent, was it before or after the amendment? As there is no such interaction before the amendment in the Register of Companies it is save to take it was after the amendment in which case Mr. Groot's claim is an afterthought.
I can hardly believe my eyes for clause 6 of the Deed of Settlement reads:
"-----applicant unequivocally abandons any claim to any proceeds in First Respondent's banking accounts and property as agreed hereto nor shall it ever lay claim in consequence of any change of name by First Respondent or an the instance of the Registrar of Companies." (the underlining is for emphasis)."
Contrary to this agreement it appears the applicants are being questioned of the names under which the company is registered notwithstanding that by agreement of the parties such a claim cannot be laid? Paragraph 6 of the General Preamble is also quite laughable to say but the least for it reads:
"Contrary to such instruction Makoro registered in Lesotho an independent organization having limited liability and independent
shareholders under the name Dorcas Aid International Lesotho, the second accused. Such entity was completely independent from Dorcas
Aid International and has its own independent shareholding..."
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With respect there is no such entity as Dorcas Aid International Lesotho for by Deed of Settlement referred to above it was agreed that a company to be registered was to abandon the name "Dorcas Aid International" and it was so abandoned. The result is that many things apart, the search warrant is being sought to prosecute a non-existent entity. It is not only in respect of paragraph 6 that the charge sheet is defective; it is also defective in respect of paragraphs 2, 15 and 18 for the reason that a dead entity is resurrected to face fraud charges.
As to what company to form, I see applicant as having been liberated and at liberty to change the name of the company save the limitation imposed by clause 4 in terms of which the applicant could not use the name "Dorcas Aid International." According to the Deed of Settlement above and the last accord between the 1st applicant and 1st respondent, there have no limitations as to name outside "Dorcas Aid International" and composition of the company to be registered and any prior agreements between 1st applicant and lst respondent were, in my view, overtaken by the Deed of Settlement referred to above.
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Also, as shown above, the Search Warrant is based on the allegation by 1st respondent that 2nd applicant has stolen 1st respondent's property and appropriated it to 1st application although the warrant has issued on the basis that "the property of Dorcas Aid International have been stolen and are concealed in the house or premises situate at etc., etc., etc."
The court in this application is faced with two mutually destructive versions by respondents. In issuing the search warrant a representation was made to the magistrate that the goods subject-matter of the search warrant were "the property of Dorcas Aid International. Contrary to this representation, another representation was made in court that the good subject-matter of the Search Warrant are the property of Dorcas Aid South Africa. If the search warrant was issued to a wrong party as appears to be the case, in such a case respondents should have amended the search warrant if this could be done failing which the true owner of the property should have applied for the search warrant. On the contrary respondents appear to have been satisfied to gamble and deceive the court by insisting that the Search Warrant was issued in the name of Dorcas Aid South Africa for there's no way the warrant could have been issued in the name of Dorcas Aid International as the property belonged to Dorcas Aid South Africa. In
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pressing home this argument respondents believed that by stratagem and good logic the court would be persuaded into believing that although ex facie Dorcas Aid International applied it is in fact Dorcas Aid South Africa that applied. I have already said that as to onus regarding whether it is Dorcas Aid Internation or Dorcas Aid South Africa that applied for the search warrant is on respondents on a balance of probabilities and since respondents have two mutually destructive versions on the same subject-matter I am not able to say that the onus has been discharged.
I have also with horror and disbelief read Esperance Mangayi's Confirmatory affidavit. At paragraph 5 he says files relating to vehicles owned by Applicant are under her control and original registration documents in respect of each vehicle and corresponding in voices are kept in the files and copies of the documents were remitted to Lesotho DAI office. At paragraph 4 she says files were originally kept in the general office of the Applicant until the 2nd applicant instructed her to place them in his office.
Paragraph 5 is to the effect that during September, 2003 she was instructed by 2nd applicant to collect details of all vehicles being used in Lesotho including registration papers and invoices as he wanted to register
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the vehicles in Lesotho and he had often stated his intention to register the vehicles in Lesotho in the name of Dorcas Aid Lesotho, a matte which was discussed at the strategic planning meeting held in August, 2003.
At paragraph 6 she says she was concerned about all the documentations leaving the general office and to this end copies of registration
papers were filed in the general office.
Paragraph 8 is to the effect that she telephoned the 2nd applicant to the effect that registration papers were missing and 2nd applicant had apologized that he forgot to tell her in his last trip to Lesotho he had removed the registration papers which was, according to Ms Mangayi, on 13 October, 2003 subsequent to 2nd applicant's suspension from DAI.
How could the 2nd applicant have stole the registration certificates, no he was allowed to remove them, made no secret of the fact that he wanted vehicles to be registered in Lesotho in the name of Dorcas Aid Lesotho, a fact which was "discussed at the strategic planning meeting held in August, 2003. From Ms. Mangayi's affidavit, it appears 2nd applicant had nothing to hide, he was not secretive or furtive and his intention to register the vehicles
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had been discussed at the strategic planning meeting and it would seem he was not able to register them as planned because of the Deed of Settlement referred to above of 1st March, 2004. Incredibility, despite the Deed of Settlement aforesaid Dorcas Aid South Africa appears disposed to press charges against Dorcas Aid International Lesotho. I am also wondering why, since the vehicles are in Lesotho offenders are not charged in Lesotho.
In the result I am of the view that the Search Warrant is so fatally defective it is not capable of curing and Ms. Shale's representation
has done nothing to cure the defect.
Consequently the rule is confirmed and the application is granted as prayed except that as applicants have failed and succeeded, there will be ro order as to costs.
G.N.MOFOLO
JUDGE
For the Applicant: Mr. Ntlhoki
For the Respondents: Mr. Louw
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