Dorcas Aid South Africa v Dorcas Aid International Lesotho (CIV/APN/473/2003)

Case No: 
CIV/APN/473/2003
Media Neutral Citation: 
[2004] LSHC 15
Judgment Date: 
8 January, 2004

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CIV/APN/473/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:


DORCAS AID SOUTH AFRICA APPLICANT

And

DORCAS AID INTERNATIONAL LESOTHO RESPONDENT


RULING


Delivered by the Honourable Mrs Justice A.M. Hlajoane on 8th January, 2004.


The present Application is for the repossession of a fleet of twelve vehicles which were and still are in the possession of the Respondent. The Court granted an interim Order which authorized the Deputy Sheriff to repossess the vehicles .


The Application is opposed as both parties each claim ownership of the same vehicles. On the one hand, the Applicant claims ownership thereof by virtue of some re-issued South African registration Certificates of all the vehicles in its name, whilst


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on the other hand, the Respondent claims ownership coupled with possession of the same vehicles by virtue of having purchased them from McCarthy Toyota, Gauteng.


Applicant's case has been that as an affiliate of a foreign organisation- Dorcas Aid International, Netherlands, it has been working together with that foreign organisation. Applicant claims to have bought the vehicles in issue with the funds of that foreign organisation, Dorcas Aid International, Netherlands.


Applicant's case has further been that a certain Reverend Frank Tsotetsi Makoro was appointed by Dorcas Aid International (DAI), as the Southern Africa Regional Director with instructions to register a branch or subsidiary of the International Organisation, DAI, in Lesotho. But that contrary to such instructions of establishing a field Office in Lesotho, Makoro established and registered an independent corporate entity.


Applicant's story is denied by the Respondent who is saying that in fact, the decision that was taken was that each of the following countries, Lesotho, South Africa and Mozambique should formally register its own distinct and separate entity. As a result Makoro registered the Respondent herein as a fully fledged distinct legal entity. He is also saying that the vehicles in question were purchased with funds generated from Lesotho by the Respondent.


When the matter came before me for argument, Counsel for the Respondent raised some points in limine from the bar. This kind of procedure was strongly objected to by the Applicant showing that for a point of law to be raised there has to be a


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foundation. The objection has not been buttressed in the Applicant's heads of argument.


The Respondent on the other hand argued that a point of law may be raised for the first time at any time in the Court of first instance or on appeal, and that there is no need to lay any foundation for it in the affidavit or give notice to the other side. It was decided in the case of Attorney-General & 2 others v Kao C of A (CIV) No. 26 of 2002 and numerous other decisions cited therein, that a point of law may be raised for the first time at any time in the Court of first instance and even on appeal. To demonstrate this point further, the Court of Appeal in Albert Molefi Tlali v Attorney-General cited in Kao's case above, was not hesitant in raising a point of law mero motu where the dictates of justice so warranted. The main consideration would be whether or not such a move occasioned any prejudice or unfairness to the other party. Applicant in this case never alleged any prejudice suffered.


After making a determination on the question of whether or not it was acceptable for the Respondent to have raised questions of law without having laid a foundation, I will now hasten to deal with the points of law raised by the Respondent.


Breach of the Rules of Court.


The Respondent is saying that the Applicant is in flagrant disregard of the Rules of this Court by non compliance with Rules 8(4), 8(7), 8(8) and 48(1). Rule 8(4) requires that every Application brought Ex Parte - to be filed with the Registrar before noon on two Court days preceding the day on which it is to be set down for


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hearing. The present Application was filed with the Registrar on the 14th November, 2003 and also moved on the same day. This clearly was a violation of this important Rule of this Court, see Mahlakeng & others v Southern Sky (Pty) Ltd and others C of A CIV) No. 16 of 2003 and Vice Chancellor NUL v Putsoa C of A (CIV) No. 28 of 2002, where the Court of Appeal expressed its displeasure where Rules have been granted yet there had been inadequate notices given.


In sounding its displeasure further, it was said in the case of Mthembu v LBFC 1985 - 89 LAC 153, that the Application should not be granted whatever the prospects may be if there has been a flagrant breach of the Rules of Court in more than one respect.


Rule 48(1) is for the request for the filing of security. In terms of that Rule, Applicant who is a peregrinus was asked to file security by the Respondent. He never responded to this request hence the exclusion of this important step in the index to the proceedings of this case. This was a very grave irregularity on the part of the Applicant calling for a dismissal of his claim. None observance of the Rules of this Court should not just be taken lightly as the Rules are there to be strictly adhered to.

Jurisdiction.


Respondent is saying that the Court had no power to grant or make an order not prayed for in the_Notice of Motion. The prayers that were asked for were framed as follows:-

  1. That the Honourable Court dispense with the rules relating to notice and


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service and that this matter be heard as one of urgency in terms of the rules of the above Honourable Court;


  1. The vehicles having descriptions and registration numbers listed on annexure 'A' hereto are to be returned and delivered to the Applicant at care of 528 Phakoe Street, Maseru.


  1. The Sheriff or his lawful deputy of the above Honourable Court is duly authorized to take possession of the vehicles listed on Annexure 'A' hereto wherever they might be found and hand them over to the Applicant;


  1. Costs of suit; and


  1. Further and/or alternative relief.


TAKE NOTICE FURTHER that if you intend opposing this Application you are required to:


  1. notify the Applicant's Attorneys telephonically and/or in writing on or before 12h00 on 14 November, 2003 and to


  1. file your answering affidavit if any on or before 14h00 on 14 November,2003.


KINDLY TAKE NOTICE that the application will be made on 14 November, 2003 at 14h00.


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Looking at the prayers as framed, there was no prayer for an interim order or a rule nisi, there was also no prayer for an order authorising the Deputy Sheriff to take possession of the vehicles pending finalisation of the Application. The Respondent was never asked to show cause on the return day why a final order of returning the vehicles permanently to the Applicant shall not be made final.


In short, the order that was granted had a final effect, and the order that was signed by the Registrar was not that which was granted by the Court. The Order reads thus:-


That a rule nisi be and is hereby issued in the following terms:


  1. That the Deputy Sheriff be and is hereby authorized to take into his possession immediately the following vehicles, (given out a list of 12 vehicles)


  1. That the Deputy Sheriff keeps possession of the aforesaid vehicles in (a) above as an interim order pending finalisation of this Application.


  1. That this rule nisi be and is hereby made returnable on Monday 24th November, 2003.


  1. That Respondent show cause why a final order returning the vehicles in (a) permanently to Applicant shall not be made final.


  1. That Respondent show cause why it may not be ordered to pay costs of suit herein.


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  1. That further and/or alternative relief may be granted to Applicant.


On the authority of the National Executive Committee of the Lesotho National Olympic Committee & others v Morolong C of A (CIV) No. 26 of 2001, the Court had no power to grant an order that was never prayed for in the notice of motion. In the absence of any formal application for amendment of the notice of motion, Applicant could not just have drafted an amended order, Attorney-General and another v Motaung C of A (CIV) No. 18 of 2001.


Additional cause of action in a Replying affidavit or argument.


An Applicant is never to be allowed to make out his case in the Replying affidavit or argument; he stands or falls by his founding papers, Frasers Lesotho Ltd v Hata Butle (pty) Ltd 1999 2000 LLR & LB 65.


Applicant's case on the founding papers was for repossession of the vehicles, but the replying papers sought proof of ownership. For this reason also Applicant's case falls to be dismissed.


Dispute of fact.


The Respondent avers that the Application is riddled with serious dispute of facts which obviously were foreseeable, and as such Applicant ought not to have approached Court by way of motion proceedings.


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Applicant claims ownership by virtue of a re-issued South African registration Certificate of the vehicles in its name, whereas on the other side, Respondent claims possession and ownership of the vehicles by virtue of having purchased them from McCarthy Toyota, Gauteng out of funds it generated from Lesotho.


In making a determination on this point on whether or not a real dispute existed, I was guided by the criteria as decided in Room Hire Company v Jeppe Street Mansions 1949 (4) S.A. 1155, that; the dispute must be foreseeable, must be real and the Respondent must allege an alternative version, it must be a dispute of the main facts necessary to decide the action, not Just a peripheral issue, also whether or not the dispute of fact can be resolved on paper and not by viva voce evidence.


The dispute on ownership was foreseeable as there has always been resistance in handing over the vehicles to the Applicant and instead an attempt by the Respondent has finally been to obtain Clearance Certificates for the vehicles in the Republic of South Africa in orderto facilitate the re-registration in Lesotho, (para 3o of founding affidavit).


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The dispute could surely not be resolved on papers without calling for viva voce evidence. It is a dispute of the facts necessary to decide this case.


Non - Joinder.


Much has been said on the founding papers about one Frank Makoro (Regional Director - South Africa), World Food Programme and Dorcas Aid International, Netherlands who are not parties to the proceedings. All three seem to have a real and substantial interest in this Application, yet they have not been joined. Non-joinder of an interested party is fatal to Applicant's case, Morolong's case supra.


Lack of urgency.


On the founding papers, it was during May, 2002 when a memorandum of understanding was signed by Dorcas Aid International (DAI) with the World Food Programme, an agency of the United Nations and DAI appointed as the agency handling food distribution on behalf of the World Food Programme in Lesotho.


The vehicles subject mater of dispute in this case were purchased in order to equip Lesotho operations of DAI to carry out its tasks for the distribution of food aid. These vehicles were registered in the name of the Applicant ( para 13 of founding affidavit). The same vehicles were made available for use by what was believed by DAI to be the Lesotho Branch of DAI, the Respondent.


The founding affidavit show that Makoro as Regional Director, Southern Africa,


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ignored the suspension by DAI and that it was on the 16 October, 2002 when he clearly showed his intention by way of an e-mail transmission that he would then operate Dorcas Aid International - Lesotho, the Respondent, as an independent organisation outside the umbrella of DAI (para 15 of founding affidavit).


It has therefore been clear from as far back as October, 2002 that the Respondent was out of control. Therefore the risk of deterioration, damage and loss started as far back as October, 2002 and cannot now create a reason for urgency.


As a result, the points in limine succeed and the rule is thus discharged with costs on Attorney and Client's scale.

A.M. HLAJOANE

JUDGE


For Applicant: Mr Moiloa

For Respondent: Mr Ntlhoki