IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/521/2010
In the matter between:
’MAPULENG MONTŠI Applicant
COMMISSIONER OF CUSTOMS & EXCISE
LESOTHO REVENUE AUTHORITY Respondent
Delivered by the Hon. Mr. Justice T. E. Monapathi
On the 23rd Day of June 2011
1. I have already made my decision in this matter. My reasons now follow:
2. A distinction has been made in terms of the Customs and Excise Act 1982, between detention and seizure of goods. There are different consequences more especially when an owner of goods intends to make a claim for release of his goods. In one case he will be barred from making such a claim.
3. On the 22nd day of September 2010, Applicant herein approached this Court, on an urgent ex-parte basis and, obtained an interim court order interdicting the Respondents from selling Applicant’s vehicle identified in paragraph 2(a) of the Applicant’s Notice of Motion pending finalization of the present proceedings. The application was opposed on the grounds set out hereunder. By agreement the Counsel argued the points raised in limine and the merits together. The facts were largely common cause.
4. In a nutshell Applicant sought, amongst others, an order directing the Respondent (the Commissioner) to allow her to enter her vehicle for customs purposes, pay customs duties, VAT, Additional Tax and any other such charges which may be payable, and the Respondent to thereafter release to her, her vehicle which the Respondent has seized under the provisions of the Customs and Excise Act 1982.
5. The Respondent has raised points in limine (including non-joinder)which it was proposed would entitle the Court to discharge the rule nisi obtained by the Applicant against the Respondent and consequently dismissed Applicant’s application with costs. It was accordingly submitted as follows. That:-
5.1 Section 90(1) of the Customs and Excise Act No. 10 of 1982 (herein referred to as the Act) requires any person whose property has been seized to give the Respondent a written notice claiming the release of his or her property within one(1) month from the date of seizure of such property.
5.2 If no written notice is given in terms of section 90(1) of the Act by the owner of property which has been seized, then section 90(2) of the Act immediately kicks in after the lapse of one month from the date the property was seized. Section 90(2) of the Act precludes any legal proceedings to be instituted against the Respondent with regard to property which has been seized where no written notice was, in terms of section 90(1) of the Act, made to him. Applicant could only contend herself with having personally approached the Commissioner. This is what may have resulted in release of her other vehicle. The Respondent justified this release of the other vehicle.
5.3 It was admitted that Applicant’s vehicle was seized on the 2nd July 2010 and ever since the seizure of her vehicle Applicant did not in terms of section 90(1) of the Act give the Respondent any written notice claiming the release of her seized vehicle. Respondent submitted that consequently Applicant was in terms of section 90(2) of the Customs and Excise Act No. 10 of 1982 barred from instituting any legal proceedings regarding the seizure of her vehicle and her application deserved to be dismissed with costs on this point alone. It was submitted the Commissioner had acted lawfully in accordance with the provisions of the Act.
6. Secondly, that on the aspect of non-joinder:-
6.3.1 The Commissioner is an officer of the Lesotho Revenue Authority (hereinafter referred to as the LRA), which is a body corporate is capable of suing or being sued in its own name, in terms of the law constituting the LRA which aspect was not denied.
6.3.2 Therefore any order made against the Respondent herein, such as a cost order could be executed against LRA for the simple reason that the Respondent is not litigating here in his personal capacity but in his official capacity a an employee of the LRA.
6.3.3 The LRA certainly has a direct and substantial interest in this matter. It is a necessary party in these proceedings and ought to have been joined, in as much as the decision to seize Applicant’s vehicle was taken by the Respondent during the course and scope of his employment with the LRA and in furtherance of the interests of the LRA.
6.3.4 There was legal authority in Amalgamated Engineering Union v Minister of Labour 1949 (3) 637 (A.D) wherein it was held that if party has a direct and substantial interest in any order the court might make in proceedings, or if such order cannot be sustained or carried out into effect without prejudicing that party, he is a necessary party and should be joined in the proceedings. Where the party is a necessary party, the court will not deal with the issues until joinder has been effected. There was legion of authorities in our courts for that view. See Nalane (born Molapo) and Others v Molapo and Others LAC (2007-2008) 457.
6.3.5 It was submitted further that the Court of Appeal has gone as far as dismissing applications in which a party having a direct and substantial interest in legal proceedings was not joined in such proceedings.
6.3.6 It was further submitted that failure to join LRA was a good ground for dismissing the Applicant’s Application with costs, moreso when Applicant could have joined the LRA after it was indicated to her that the LRA has a direct and substantial interest in this matter.
7. In considering the merits of this application, it was submitted that where there is a variance between the version of the Applicant on the papers as they stand, the court will prefer the version of the Respondent. Fortunately such a variance centered around the area as to when Applicant lodged her complaint or made proposals, namely whether it was before seizure of the goods or not.
7.1 It was not in dispute that Applicant’s vehicle was, pursuant to section 88 of the Act, detained under the provisions of section 89(1) of the Act.
7.2 The reasons why Applicant’s vehicle was detained which are largely common cause and are not seriously in dispute and the following:
7.2.1 Applicant’s vehicle was not declared upon its importation into Lesotho in compliance with section 14(1) of the Act as amended by section 3 of the Order No. 25 of 1986 alternatively, in terms of section 12(3) of the Act.
7.2.2 Following its importation into Lesotho, Applicant’s vehicle was contrary to section 39(1)(a) of the Act not duly entered for customs purposes and customs duties and Value Added Tax(VAT) which ought to have been paid on her vehicle but were never paid.
7.2.3 Ultimately, it was fraudulently registered with Berea Motor Vehicle Licensing Authority in contravention of section 21 of Order No. 21 of 1988.
7.2.4 Respondent submitted further that in terms of section 89(1) of the Act, the Respondent in the exercise of his discretion was and provide necessary jurisdictional requirements were present, entitled to seize Applicant’s vehicle.
7.2.5 It was certainly not in dispute that the necessary jurisdictional requirements entitling the Respondent to seize Applicant’s vehicle were present when he decided to seize Applicant’s vehicle.
7.2.6 That is why Applicant was unable to contend in her Founding Affidavit that the Respondent’s decision to seize her vehicle was unlawful and not sanctioned for by the Act.
8. It was not disputed that the relief which the Applicant is seeking an order for a mandatory interdict. A mandatory interdict is an order of Court ordering a respondent to do something. Lawsa, 1st Re issue, volume 11, p286 para303,Jafta v Minister of Law and Order and others 1991(2) SA 286 AD at 295 B-Cwhere the following was said:
“The word interdict is a technical legal one and would seem to cover only orders forbidding the doing of an act, styled ‘prohibitory interdicts’ but also orders enjoining the doing of an act, known as ‘mandatory interdicts’.”
In order to succeed therefore Applicant has to establish:
Firstly a clear right; secondly, an injury actually committed or reasonably apprehended; and thirdly, the absence of a similar protection by other remedy.
The seminal case of Setlogelo cited in the above case has found approval in a number of decisions of the Court of Appeal such as Lesotho University Teachers and Researches Union v National University of Lesotho LAC (1995)-1999) 661 at 672 D-F.
8.1 Accordingly, in an application for a final interdict, the onus is upon the Applicant to prove on a balance of probabilities, the facts which establish the right upon which she relies.
8.2 Crucially, it is certainly not Applicant’s argument that the seizure of her vehicle was illegal and/or unlawful. Significantly, Applicant does accept that the Commissioner was entitled in terms of section 89 (1) of the Act to decide whether or not to seize her vehicle.
8.3 The only ground, upon which a court of law can order the release of goods seized, is only where it has found the seizure or detention illegal and consequently declare such seizure or detention invalid. Applicant is not seeking the court to declare the seizure of her vehicle as illegal and invalid. Neither is she contending that the seizure of her vehicle was not lawful. It is on this basis, in my view, amongst others, that the application falls to be dismissed.
8.4 Applicant had instead, again significantly, acknowledged that the Respondent had a right to seizure her vehicle. Consequently, she has no clear right to enforce. In the circumstances, it was correctly submitted that the Applicant has no right, let alone a clear right to the relief being claimed.
9. Applicant alleged that she would suffer irreparable harm should her vehicle which has been seized be sold. It is perhaps important to indicate that in terms of the Act goods which have been seized by the Respondent have to be sold by public auction or in any other manner which the Respondent may deem suitable.
9.1 It was submitted that the harm or injury which Applicant can in law seek protection against by way of an interdict, should be one resulting from the infringement of her rights or from conduct which is unlawful. That there could never be any question of infringement of rights resulting from lawful action taken in terms of the provisions of legislation as in the present case. It was likewise submitted that the Applicant had failed to prove this requisite as well. I agreed with Respondent. Similarly, on this account the application was set to fail.
9.2 Further, that Applicant had dismally failed to make the barest of allegations that the reason she is seeking a mandatory interdict is because she has no other alternative adequate remedy at her disposal. This was a requirement which she was supposed to establish for the grant of an interdict. Indeed there was no such allegation.
9.3 It was accordingly submitted that the Applicant had failed to prove any of the requisites for a mandatory interdict. Consequently her application for the grant of a mandatory interdict had to fail, and it was submitted that it be dismissed with costs. I agreed with respect.
9.4 Respondent submitted that the application ought to fail on another ground. That in motion proceedings an applicant stands and falls by his or her founding affidavit, and for the simple reason that as a general rule an applicant has to make out his or her case in his or her founding affidavit, an applicant will usually not be permitted to set out a more complete case in reply. I agreed with respect. Applicant was said to have faltered on that grounds as follows:
9.5 Applicant contended (for the first time) in her replying affidavit that she was challenging the decision of the Respondent on the basis that it was unreasonable for him to seize her vehicle, was unfortunately a new case that is being made out by her in her replying affidavit and was never made out in her founding affidavit and did not even support the prayers sought for by the Applicant. My view was that this was an improper approach.
9.6 Respondent submitted, consequently, that even if it were to be assumed, without necessarily conceding, that the challenge of the unreasonableness of the decision of the Respondent (who had a discretion endowed by law) was somehow badly made out by the Applicant in her founding affidavit, her application still has to fail for the reasons set out below.
9.7 Respondent submitted further that: the power of the court to interfere with the exercise of discretion (such as of the Commissioner) was exercised the Respondent had to be, only, by way of review. This Applicant’s application was not an application for review. In any event were the court to hold that, it is nonetheless, competent to exercise its revisionary powers, even though Applicant’s application is not an application for review, the exercise of the discretion by an administrative functionary (such as the Commissioner) can only be attacked on review on the basis that the person entrusted with the duty failed to exercise his discretion at all; or that he acted mala fide or was motivated by improper considerations. This was not Applicant’s contention. In any event it would not succeed.
10. In most cases in addition, unreasonableness alone does not suffice. Unreasonableness as opposed to gross unreasonableness does not appear to be a basis upon which administrative action may be reviewed. I agreed with respect.
10.1 Still then, even if the court were to find that unreasonableness is a ground for review, the decision of the Respondent was not unreasonable.
10.2 For a decision to be unreasonable, it has to be entirely without foundation and be that decision which no reasonable person could have come to. If not it should be a decision that was arrived at dishonestly or a decision which involved the use of powers for purposes which were not contemplated by the enabling legislation. Or it should be a decision which leads to arbitrary or unjust consequences. I agreed with Respondent.
11. I found that Applicant’s contention that the Respondent opted to seize her vehicle despite her willingness to pay customs duties, taxes as well as penalties was not correct. She only opted to pay customs duties and never offered to pay any penalties. She was at fault. The Respondent could only act in her favour out of “good heart” as I concluded in the circumstances.
11.1 This court was asked to take note of the fact that there were three of Applicant’s vehicles which had been detained on the same grounds as the present vehicle; and although there were all liable to seizure and the Respondent had good grounds for seizing all of them, he in cognisance of the fact that the penal provisions contained in the Act were intended to, amongst others, serve a deterrent purpose, indulgently the Commissioner released two Applicant’s vehicles without demanding any payment of penalties when Commissioner could have seized them. Notably it was out of a favour given or that good heart. It is certainly not correct, in my view, the Respondent acted unreasonably under the circumstances.
12. I found that the Applicant may have been negligent in not fully citing LRA but it objectively was her intention as the citation of the Respondent showed. This point ought not to succeed. Otherwise on the other issues of unjustified interdict, no proof of unlawfulness on the part of the Respondent, lack of gross unreasonableness nor unreasonableness for that matter, the application ought to succeed with costs to Respondent.
T. E. Monapathi
For Applicant : Mr Mokoko
For Respondent : Mr Dichaba
Noted by Adv. Makholela and Adv. Motsieloa
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