IN THE HIGH COURT OF LESOTHO
In The Matter Between:
TSEPO PETER THULO Applicant
KPMG/HARLEY & MORRIS JOINT VENTURE
LIQUIDATORS OF LESOTHO BANK (IN LIQUIDATION) 1st Respondent
LERAISA (DEPUTY SHERIFF) 2nd Respondent
ATTORNEY-GENERAL 3rd Respondent
Delivered by the Honourable Mrs Justice A.M. Hlajoane on 15th December, 2003.
The brief synopsis of this case is that, an Application brought on a certificate of urgency was filed by 1ST Respondent asking in the main, for a cancellation of a Hire Purchase agreement and repossession of a vehicle from the Applicant.
An interim order was granted on the 25th February, 2002 and later confirmed on the 7th March, 2002. Another Application was filed by the Applicant, also on urgent basis, asking for a restraining order against the sheriff from taking possession of the truck in question on the authority of the warrant of execution. The truck had been taken to South Africa for repairs.
An interim order was obtained on the 29th November, 2002. A final Court Order was made on the 7th March, 2003 granting the rescission and allowing Applicant to put forward his defence.
An Application for spoliation was filed on the 22nd January, 2003 after it had been served on the Respondents. Applicant is claiming that the truck was taken from his possession after the stay of execution had been granted, thus constituting an unlawful seizure of his truck.
In response, the first Respondent in his answering papers points out that in fact, the rescission and stay of execution was improperly obtained, since no notice was given to the Respondent. This meant therefore that 1st Respondent made it clear that he was not going to comply with an order of this Court simply because he felt that he had not been given any notice. Surely it would not be proper for anyone to just disobey a Court's Order without having recourse to law, otherwise people would feel free to do what in their opinion appear to be just. Once a matter had been placed before a Court of Law proper legal channels have to be followed and the relevant procedures followed. It is a fundamental principle of our law that no man is allowed to take the law into his own hands without recourse to law.
Applicant has in his founding affidavit at paragraph 15 shown that 1st Respondent's counsel had become aware of the final order of court for recission, but that they would only release the vehicle if the order of court clearly spelt out that the vehicle has to be released. This was never denied by the 1st Respondent in his answering papers. This therefore meant that the 1st and 2nd Respondents kept the
vehicle unlawfully as it was against the order of this court which had granted rescission.
It is spoliation if a person dispossesses another of his property without being authorized by a judicial decree. Nino Bonino v De Lange 1906 TS 122.
Without necessarily going into the other aspects of this case, the court finds that Applicant was despoiled of the truck in the face of a valid order of this court, granting rescission of judgment that was granted by default.
The Respondents are thus directed to restore to Applicant a Mercedes Benz Truck bearing engine number VEO317SA012791B and chassis number 39714126023345 together with a 2 axle trailer, two big sails (one for the truck and the other for the trailer) and a net (for holding goods loaded on the truck and trailer), currently kept in 1ST Respondent's custody.
Respondents are also to pay the costs of this application on attorney and client scale.
For Applicant: Mr Mosae
For Respondents: Ms Makhera