Malachamela v Sekheo and Others (CIV/APN/376/03)

Case No: 
CIV/APN/376/03
Media Neutral Citation: 
[2004] LSHC 44
Judgment Date: 
8 March, 2004

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CIV/APN/376/03

IN THE HIGH COURT OF LESOTHO


In the matter between:


MOKHETHIMALACHAMELA APPLICANT

AND

MASABELO SEKHEO 1st RESPONDENT

CHIEF NAPO MAJARA 2nd RESPONDENT

THE PRINCIPAL SECRETARY

MINISTRY OF HEALTH 3rd RESPONDENT

ATTORNEY GENERAL 4th RESPONDENT


JUDGMENT


Delivered by the Hon. Mr. Justice G. N. Mofolo On the 8th day of March, 2004


This matter started by way of application but there were so many dispute of fact the court decided to convert the application into a trial.


P.W.I Mokhethi Malachamela sworn stated he lived at Sekamaneng and worked in the Republic of South Africa. He did not know the 1st respondent nor did he know the deceased. He knew the 2nd respondent who was his chief. He was aware the court had gone on an inspection-in-loco when he claimed the field belonged to him. In 1991 while chieftainess 'Manapo was the chief he had spoken to Hlalele Moleko who borrowed money from him to consult a doctor and not being able to pay me had decided to give him an arable land instead. As he was a fresh resident at


  1. The periods of notice and forms of service in terms of this Honourable Courts rules should not be dispensed with on account of the urgency of this matter.

  2. First and second respondents or any of first respondent's members should not cause the Registration Certificate of the Toyota Hilux 4 x 4 truck, under Reg. No: AG 422 to be delivered to applicant, and first respondent or any of its members to sign transfer of ownership documents in favour of applicant.

  3. Declaring applicant the lawful owner of the vehicle described in paragraph (b) above.

  4. Alternatively directing fifth respondent to issue applicant with the new Registration Certificate for the above-mentioned vehicle, in favour of the applicant.

  5. Granting applicant further and or alternative relief.

  6. Costs of this application to be paid by respondents.


2 Prayer 1(a) to operate with immediate effect.


According to papers before me, Toyota Hilux 4x4 was purchased by 'Mesa-Mohioane Agricultural Foundation (1st Respondent) from Orange Toyota on 14 December, 1994 for the sum of M79,977.60 and


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according to annexure C" was registered in the name of the 1 respondent so that barring other considerations the vehicle became 1 respondent's property. It also would appear the 1st respondent entered into an agreement with the African Development Foundation in terms of which, amongst other things, ADF would provide funds for the purchase of a 4 x 4 Hilux truck (see Appendix A p.53).


There can be no doubt in my mind that the vehicle was purchased by the 1st respondent with ADF funding.


In terms of the agreement entered into between 1st respondent and ADF, lst respondent was to submit accounting, financial and progress reports (pp. 45-46).


In paragraph 9 a Mr. Mbele who claims to be applicant's manager alleges that the Toyota 4x4 registration No. AG 422 was purchased by 1st respondent with ADF funding. This is correct. He also alleges that it was a 'specific term of the said grant agreement that the funds would be used only for project activities.' I have not been able to locate these term, though ADF letter of 27 October, 1998 substantiates the claim.


At paragraph 9.2 Mr. Mbele has also alleged that:


' after some time ADF discovered that first respondent had disintegrated and abandoned the ADF funded project. ADF further discovered that one number of the group took the vehicle for his personal use and noting the above circumstances ADF asked for the assistance of the 3rd respondent 'to take custody of the said motor vehicle and to keep it safely until its matter had been resolved."


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In support of Mr. Mbele, annexure ADF7of 27 October, 1998 is to the effect that 'the agreement states that funds are provided for use in the manner stipulated in the agreement. This implies that should the recipient not use the funds in the manner agreed upon, the funds and assets purchased with these funds must, at the donor's discretion, be returned' (paragraph 2). In the last paragraph Mr. Ford of ADF says 'it is our understanding based upon reports we have received that the 'Mesa-Mohloane project activities have ceased.'


On p.73 paragraph 2 Mr. Ford has said:


'under these circumstances, we must request that the project vehicle, a 4 x 4 Hilux x 1994 diesel truck, Registration AG 422, engine numher 213 686040 and chassis number AHT31 LN1503002024 be returned to the control of the local ADF office. The vehicle should be returned to the ADF country Liaison officer, Mr. Qabane P. Cweba, to be transferred to a group that can make use of the truck for a development _activity _in line with the mission and scope of the ADF/Lesotho supponed programme (My emphasis).

As I understand the tenor of Mr. Ford's letter, the vehicle was made available to the 1st respondent conditionally namely: so long as the donee uses the vehicle in the manner stipulated in the agreement; and the manner stipulated is that the vehicle will engage in (he activities of the donee as stipulated in the agreement and should the activities for some reason cease and the vehicle not engage in them, it has to be returned and diverted to other similar projects. Because of the cessation of 1st respondent's project activities, ADF has directed that the vehicle be taken away from the 1st respondent. lst Respondent's argument is that the vehicle is 1st respondent's having been purchased


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by 1st respondent from Orange Toyota.(para. 5 AD 9.1). At para. 9.2 1st respondent vehemently denies that it has disintegrated and abandoned the ADF funded project. I understand 1st respondent as saying while the vehicle was funded by ADF, since the vehicle is registered as lst respondent's it is the property of the 1st respondent.


The letter of 27 October, 1998 was written to Mr. Thulo Masakale, Treasurer, 'Mesa-Mohloane Agricultural Foundation (Pty) Ltd and Mr. Ford concluded by saying 'we await word from you or the CLO on the above matter prior to November, 10, 1998.' It was copied to Mr. Cweba (CLO), US Ambassador, Lesotho and Ministry of Economic 1stanning & Development, Lesotho. I note, however, that the agreement between African Development Foundation and the 1st respondent was signed, amongst others, by a Mr. Sipho Sebitsa as treasurer on 8 March, 1994. However, it is Mr. Thuso Masakale who has opposed the application on behalf of the 1st respondent as treasurer of the 1st respondent. As we have seen, a letter was written to Mr. Masakale to have the vehicle returned on account of operations for which the vehicle was purchased having ceased. Did Mr. Masakale reply denying the allegation? What does he say about this letter of 27 October, 1998, ADF7?


Question to be decided is whether it was a term of the agreement that in the event of the project not being serviceable or ceasing operation the vehicle was to be returned to ADF. Secondly, whether by virtue of registration the vehicle belonged to 1st respondent.


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the face of these denials by 1St respondent? The onus is on the applicant that the project has disintegrated and is abandoned and I am not satisfied that the applicant has discharged the onus. The applicant has also deposed that 'after some time, ADF discovered that first respondent had disintegrated and abandoned ADF funded project. ADF further discovered that one member of the group took the vehicle for his personal use. Noting the above circumstances ADI7 asked for the assistance of the third respondent to take custody of the said motor vehicle and to keep it safely until its matter had been resolved.'


Please note that a serious step had been taken against the lst respondent for actions of an unidentified wrongdoer. The wrongdoer should have been identified in order to defend himself. I am of the view he was not identified for there was never such a one.

What the applicant alleges is not what was reported to Mr. Ford for, according to him, 'it is our understanding based on reports we have received that 'Mesa-Mohloane project activities have ceased (anncxiire ADF 7p.72 above. I do not think its fair for Mr. Ford to have relied on reports. Reports, in my view are not solid evidence but hearsay; it is no more than saying: Mr. Cweba has informed me that project activities have ceased. Quite apart from the fact that word of mouth is unreliable and is in any event hearsay, it was incumbent on Mr. Ford on receiving reports to follow them and verify them. As 1 have said above, in this case its' worse because allegations against the 1st respondent have been denied and this being the case although Mr. Cweba has affirmed that the project is defunct, his allegations have also been vehemently denied


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by the applicant. The result is that 1st respondent version is to be preferred.


I also notice that in terms of ADF7 Mr. Thuso Masakale was apprised of the sorrowful state of affairs reigning at 1st respondent's premises but he has not reacted. I notice too, though, that ADF7 forms part of applicant's replying affidavit. I am of the view that this document, important as it is, should have formed part of applicant's founding paper to give Mr. Masakale an opportunity to respond thereto. 1 have a feeling this document, important as it is was withheld to give applicant and unfair advantage over the lst respondent. 1 have also taken exception to Sechaba Mbele's affidavit, the same Sechaba who claims to represent the applicant by saying at para. 9.2 of his Affidavit. 'ADF further discovered that one member of the group took the vehicle for his personal use.' Now, Mr. Mbele is purportedly an eye and ear of the applicant. If true, why has he not mentioned the culprit to enable him to defend himself? How can I take this bald statement seriously? Also, as I have said above, Mr. Ford in ADF7 speaks of reports received. It could well be that it is Mr. Cweba's reports, but is that so for Mr. Ford has not said so? It was held in Brighton Furnishers vs Viljocn, 1947(1) SA 39 (GW) that failure of the applicant to disclose source of the information constitutes an irregularity which, in accordance with the general rule against new matter in reply is not cured by filing of a replying affidavit setting out the required information; further, if the deponent to an affidavit sets out statements made by other persons without indicating whether he believes them or not, the statements are inadmissible and will be struck out. It is also this court's view that


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where it is desired that a vehicle otherwise registered in the name of the transferee should nevertheless remain the property of the transferor pending fulfillment of certain conditions, this is a provision that must form part and parcel of the agreement between the parties.


I have picked up the term 'donor's discretion' in ADF7 and I am of the view that a donor is one who gives and the gift is a donation. Boherg in his Law of Persons and the Family a 1977 publication at page 518 says: '— the intention to donate has been inferred from an irrevocable act of divestation —.' At p.519 he also says 'the act of divestation may take any form that is overt and irrevocable in character. Also quoting from several sources Boberg says at p. 521 that: 'essentially, what is required is that the donor commit himself to a situation in which, should he subsequently regret his generosity, he can no longer legitimately deal with the property as his own. How can ADF deal with the vehicle as its own having allowed the vehicle to be registered in 1st respondent's name? As I have said, Boberg says the act of divestation may take any form that is overt and irrevocable in character such as the taking of a bond in favour of one's child as security for a loan made by oneself, the cession to the child of an insurance policy or inheritance rights; the making of deposits in the child's name in a financial institution, the transfer into the child's name of land or shares, the marking of animals with the child's own brand etc. Even if I am wrong on principles of donation, at least the transaction between ADI' and 1st respondent was certainly not a loan or Hire Purchase Agreement where, in the case of the latter, if suspensive conditions are not fulfilled the property reverts to the true owner or seller.


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As to registration of a vehicle, this has to do with ownership unless, despite the registration, there is a clause vesting the property in the donor or seller. According to the agreement signed between ADF and the 1st respondent, the 'Mesa-Mohloane Agriculture Foundation agrees to return to the Foundation any grant funds, in Maloti, not expended or committed to project activities during the period of the grant' (p.43); in addition, if the foundation determines that the 'Mesa-Mohloane Agriculture Foundation has failed to comply with the terms and conditions of this Agreement, it may suspend or terminate the grant for cause.


Termination or suspending the grant is said to protect the interests of the United States Government (p.50). On termination of the contract for deficiency, the only sanction against 1st respondent is the 'return' of 'all uncommitted grant funds to the foundation (p. 50). Nowhere does the agreement stipulate if 1st respondent should fail or be defunct the vehicle is to be returned to ADF or redeployed.


I have also wondered why the vehicle is singled out and not the other machinery and equipment not withstanding Mr. Ford's 3rd paragraph at p. 73 that: 'at this time we are not requesting the return of any other equipment supplied to the project by ADF.'


Also, as observed above concerning transfer of ownership, Boraine (The Law of Property - 3rd Ed. at p. 245) says the intention of the owner to transfer ownership need not be absolute but may be


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conditional upon the happening of an uncertain future event for the transferor may deliver the thing to the transferee on the understanding that the latter shall acquire ownership in it 'if a certain condition is fulfilled that is, the delivery is made subject to a suspensive condition.' Or the intention of the transferee may be subject to the existence of a certain state of affairs (in the instant case so long as the transferee uses the vehicle in the interests of viable 1 respondent's projects). I am of the view that this reasoning is correct so long as it is supported by the agreement between the applicant and 1st respondent and is not subject-matter of a replying affidavit.


Notice too that in Chetty vs. Naidoo, 1974(3) SA 13(A) Jansen. JA is said to have explained the principle of vindication thus:-


'It may be difficult to define dominium comprehensively (cf Johannesburg Municipal Council vs Rand Townships Regishar and others, 1910 T.S. 1314 at 1319), but there can be little doubt (despite some reservations expressed in Munsamy vs (Genyemma, 1954(4) SA 468 (N) at 470H-471E) that one of the incidents of the right to exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever is holding it is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g a right or relenlion or a com factual right).'


I have already said that in the agreement entered into between ADF and the 1st respondent there is no such right of retention or a contractual right. Besides, I do not understand why since the ADF funded other items and agricultural machinery, the vehicle should be treated as an exceptional


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item to the general rule or retention. Enforcement of agreements to be fair must be across the board, uniform and not selective.


This is not a straight forward application there being serious dispute of fact for example, whether the project is defunct having ceased to operate and whether the vehicle is used for private purposes other than in the interests of the project.


Nor indeed is there anything wrong with Mr. Ford or ADF except that information to Mr. Ford and by extension ADF came from secondary undisclosed sources whose veracity was not tested making in inconclusive.


In view of the fact that this matter came by way of application and there were dispute of fact which could not be resolved on paper and moreover as there was not enough investigation by ADF to determine whether the project was defunct 1st respondent having denied that it was defunct, 1 have had no option but to agree with 1 respondent that the project is fully active in producing agricultural products; that there arc no pending liquidation or dissolution proceedings; moreover, that 1St respondent is active well as a legal persona and keeps on producing tomatoes, butter nuts, carrots, beetroot, beans, peas, wheat and various cash crops save being handicapped by the wrongful seizure of its vehicle. By the way, unless the 1st respondent acceded to the seizure of the vehicle, I don't see how the 1st respondent could have parted with the vehicle except it having been seized from the 1st respondent by means other than due process of law.


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Accordingly, I have had no hesitation whatsoever dismissing this application and discharging the rule with costs to the 1st respondent. It is a specific order of this court that the vehicle AG 422 be restored with immediate effect to 1st respondent wherever it may be and with whom it may be.


G: N. MOFQLO

JUDGE


For the Applicant: Mr. Phoofolo

For the 1st and 2nd Respondents: Mr. Mpopo


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