Qahana v Commissioner of Police and Others (CIV/APN/169/2003 )

Case No: 
CIV/APN/169/2003
Media Neutral Citation: 
[2003] LSHC 128
Judgment Date: 
28 October, 2003

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CIV/APN/169/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:

LESIA QAHANA APPLICANT

And

COMMISSIONER OF POLICE 1st RESPONDENT

O/C MOKHOTLONG POLICE STATION 2nd RESPONDENT

ATTORNEY GENERAL 3rd RESPONDENT


JUDGMENT


Delivered by the Honourable Mr Justice T. Nomngcongo on the 28th October 2003


This application was brought on a certificate of urgency for orders in the following terms:


  1. That the normal rules pertaining to modes of service and notice be dispensed with on account of urgency.


  1. That a Rule Nisi be issued and returnable on a date and time to be determined by this Honourable Court to show cause if any why:


    1. Respondents and or their subordinates shall not be directed to release forthwith, applicant's certain motor vehicle ISUZU truck, Chassis number TLD 5405183678 AHND, Engine Number 594194 and Registration Number AU 171.


    1. Respondents and or their subordinates shall not be directed to release applicant's original documents in the form of annexure "LQ1" attached hereto.


    1. Directing respondents to pay costs hereof.


    1. Further and or alternative relief.


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  1. That prayers 1 and 2 operate with immediate effect as interim Court Order.


Counsel for the applicant duly appeared before my brother Peete J. the following day and obtained an order in terms of prayer 1 and that "Rule Nisi returnable on 17th April 2003". My understanding of this order is that prayer 1 regarding dispensation with the normal rules pertaining to service and notice had been granted and as for the rest of the prayers the respondents were required to show cause on the 17th April why they should not be granted. Yet the Interim Court Order presented to and signed by the Registrar includes all the prayers and specifically and I quote:


"It is hereby ordered that:

  1. ---------------------

  2. ---------------------


    1. ------------------


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  1. -----------------

  2. ----------------


    1. That prayers 1, 2 operate with immediate".


Clearly this is not what Peete J. ordered or intended. Drafted and signed as it is, would mean that all the prayers under 2 had been ordered to operate with immediate effect ex parte. That would include not only the immediate release of the vehicle in question but also an order of costs against the respondents. Of course that is unthinkable. This should sound a warning first to practitioners. They should not come to court with prepared orders taking for granted that they will be granted in the form that they bring them and automatically present them for signature by the Registrar. This is what I hope has happened. Secondly Registrars have to be careful that what they sign for is that which was in fact ordered by a Judge.


I come now to the certificate of urgency accompanying the Notice of


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Motion. It is in the following terms:


I have considered the above matter and bona fide believe it to warrant urgent relief for the following reasons.


  1. The detention of applicant's vehicle is unreasonable and unlawful and is causing him financial prejudice and harm.


  1. Continuous detention will cause humongous debt to the government coffers which are derived from the tax payers monies".


In amplication, of the alleged grounds of urgency the applicant says at par. 8 of his founding affidavit that he hires out his truck to some Chinese Merchants at R2,800 a day to buy stock in South Africa and significantly that he would suing for loss of such business in due course. He further alleges that detention of his vehicle by 2nd


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respondent is malicious and its continuation will be a waste of tax payers money inasmuch as the claim for the loss of business will be tremendous. (Par.9) Further that the balance of convenience favours him to "avoid an unnecessary debt to be a burden upon tax payers funds". (Par. 12 of the founding affidavit). I may at once point out that while all this altruism towards tax payers may be commendable it does not advance the applicant's case for urgency and it certainly cannot form a ground for it. Tax payers will get their dues in due course and they are certainly in no hurry for that. In any case they have the tax-collector to do the job for them and not the applicant.


Now again, it seems to me that a perfunctory incantation of the unlawfulness and prejudicial nature of the respondent's conduct is also not sufficient ground to establish urgency. Something more is needed. After all Rule 8 (22) (b) provides:-


"In any petition or affidavit filed in support of an urgent


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application, the applicant shall set forth in detail the circumstances which he avers render the application urgent...." My emphasis.


To claim that conduct is unlawful and prejudicial or causes so much loss is not to provide any detail. I am aware that later in his replying affidavit applicant says that the lost income constitutes his sole means of livelihood. Even if that is true that cannot avail him: he stands or falls by his founding papers. He said nothing of the sort in it.


I would conclude therefore that the applicant has failed to establish any urgency in the matter.


This application was opposed on the grounds that the police had in the course of their investigation found a registration certificate which


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had similar details to the registration certificate with the applicant's vehicle. These are loosely referred to as "Blue Cards". Also they have reason to believe that the vehicle is stolen property as it was identified by one Jan Lodewyk Janeke. Again, some details on applicant's vehicle do not tally with its description on the registration certificate. In particular the tare weight on the vehicle did not match the one on the vehicle itself.


Finally the registration certificate found by the police II 1485, according to official records is in the name of an entity called International Stores and has not been re-allocated.


It is interesting to observe that the applicant says in par.7 of his founding affidavit:


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"I have heard rumours that my vehicle has been detained because someone has a "blue card" that has the (sic) similar engine and chassis number as those on my vehicle and I aver that this has nothing to do with me and or my vehicle, therefore its detention is unlawful and malicious to say the least".


In answer to this the respondents set out the full facts as to why they detained the vehicle and end up by saying that the applicant was informed of the reason why that action was taken. (Par. 13.2 of the Answering Affidavit). The applicant does not deny that he was so informed (see Par. 7 of applicant's replying affidavit) This leads to the conclusion that he was in fact so informed. (See Plascon-Evans Paints LTD v Van Riebeck Paints (PTY LTD) 1984 (3) SA 623 A). Yet the applicant evasively chooses to dub what he was informed by the police as mere rumour. He then in reply goes on to say how he had acquired the vehicle of which he had been a driver. The said


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vehicle had been registered, he says, E 1485. It had belonged to his employers. It had then been badly damaged as he drove. If it disappeared because one Alphonse Sello had bought it "voestoets". Sello had rebuilt it and it had been rendered as good as new. He had then re-sold it to his employers. His employers had then "ceded" it to him in gratitude for long and good conduct in their service. This is in startling contra-distinction with his simple and non-committal assertion that :-


"It has been legitimately bought and registered as is clear from annexure"LQl".


Why is applicant not as forthcoming in his founding affidavit as he is elaborate in his reply. I can only construe this as lack of bona fides and it is trite that an applicant who moves court ex parte as he did, must display the utmost good faith.


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The many transactions that are now disclosed in reply would require the sanction, of law. It is provided, for instance by the Road Traffic Act 1981 section;


  1. "If the registering authority has reasonable belief that a motor vehicle or trailer in respect of which registration is sought is or may be of a type not previously registered but constructed according to different specifications, he may refuse to register the motor vehicle or trailer until plans or specifications thereof have been submitted to and approved by the registering authority.


  1. "In the event of any change of circumstances which affects the accuracy of the registered particulars of a motor vehicle or trailer, the owner therefor shall forthwith inform the licencing officer of such change, shall forward to him the registration book in order that it may be


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amended or cancelled and shall supply the licencing officer with any further information that may be required." (My emphasis)


The applicant does not seem to have complied with either section 8 read with section 7. The vehicle according to him has been reconstructed to look as good as new and the tare weight reflected on the vehicle has been painted over to reflect a different numbers altogether. In those circumstances he was duty bound "to forward to the licencing authority the registration book in order to have it amended or cancelled. It has not. The law has been breached in this regard.


Section 11 of the Act also lays down the procedure upon changing of ownership of a motor vehicle. The applicant has not followed such a procedure merely contending that the vehicle E 1485 does exist


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anymore as if the vehicle he claims to be his own was not originally the same.


This is something clearly illegal in the acquisition of this vehicle and the police were entitled to seize it. I have no hesitation therefore in dismissing this application and discharging whatever rule nisi existed.


The application is dismissed with costs.


T. NOMNGCONGO

JUDGE


For Applicant : Mr Molapo

For Respondents : Ms Jaase


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