Aqua Transport (Pty) Ltd v Ntseno and Others (CIV7APN/190/2004)

Media Neutral Citation: 
[2004] LSHC 81
Judgment Date: 
17 June, 2004

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CIV7APN/190/2004 IN THE HIGH COURT OF LESOTHO

In the matter between:-

AQUA TRANSPORT (PTY) LTD APPLICANT

and

PHOKA NTSENO 1st RESPONDENT

THE COMMISSIONER OF POLICE 2nd RESPONDENT

THE ATTORNEY GENERAL 3rd RESPONDENT

JUDGMENT

Delivered by the Honourable Mrs Justice A.M. Hlajoane

on 17th June. 2004.

The Court was approached ex parte and on urgent basis in ordering that the vehicle, a white Mercedez Benz Tipper Truck, be released to the Applicant as a recovered stolen vehicle. The vehicle is presently in the custody and care of the second Respondent's officers.

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In compliance with the provisions of Section 8 (22) (c) of the High Court

Rules, the Applicant advanced the following as his reasons for urgency:-(a) This matter involves recovered stolen vehicles; (b) Third Respondent's officers may release them to first Respondent anytime from today as they have declined to charge first Respondent; (c) Applicant desperately needs this vehicle to resume wok.

I must point out that though the certificate of urgency referred to stolen vehicles, Applicant's counsel in argument referred only to one vehicle. Even in (b) above though he has referred to third Respondent's officers, in argument and on the papers has referred to second Respondent's officers.

The prayers sought were framed as follows:

(a) THAT the rules of this Honourable Court as pertains to periods and modes of service be dispensed with, regard being had to the urgency of this matter.

(b) THAT second Respondent and or officers subordinate to him be interdicted from releasing or cause to be released to first Respondent herein a certain white Mercedes Benz Tipper Truck currently bearing registration letters and numbers, false engine and chassis letters and numbers 35391220338671 and 34005362011037 respectively;


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originally NPN 25442; V0030264554 and 62413126002000 respectively, in his custody or officers subordinate to him pending the finalisation of the ordinary relief.

(c) THAT a rule nisi be issued returnable on a date and time to be determined by this Honourable Court, calling upon Respondents to show cause if any, why the following ordinary relief shall not be granted as a final order.

I must also state that there was an urgent relief sought as above stated and also some ordinary relief as will be shown here under:

(a) Ordering and directing that the above mentioned vehicle be released to Applicant herein or his Attorneys of record.

(b) THAT Respondents pay costs of this application jointly and severally, the one paying the others absolved, only in the event of opposition.

(c) Granting Applicant such further and or alternative relief.

The Applicant's case went to show that it was a company duly registered under the Laws of the Republic of South Africa and carrying on business of transport. That it has under it two subsidiaries, Siyadayisa Commercial Vehicles and KD Enterprises. The truck in question, was working at Mdantsane in East London in the course of Applicant's

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business when it was hijacked at gun point. That a docket for this was opened with South African Police.

According to the Applicant, that truck was spotted sometime during

Easter weekend by one whom he called as his agent, Abdul Karim Ismail at Masianokeng here in Maseru. Abdul reported the matter to Mabote Police who responded by taking the truck in their possession where Abdul identified it as that of the Applicant.

It also came from the Applicant that when its agent, Abdul asked for the truck to be released to him, after he had identified it, the Police could not, as the first Respondent also claimed the same truck as his and even produced documents to prove his claim.

It has been the Applicant's case that since his agent's identification had only been physical, Mabote Police had to call their South African counter part to conduct some examination on the vehicle. The examination which according to the applicant revealed other identity particulars. That when all that had been done Mabote Police declined to lay any charges against the first Respondent.

In contesting this Application, the first Respondent has raised some

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points in limine, that there is a material dispute of facts. Applicant claimed the vehicle as his own property and that the true history and correct particulars of that vehicle were those as set out by him. On the other hand, the 1st Respondent also claimed the same vehicle as his with a history and particulars set out by him. First Respondent denied the description given by the Applicant and gave a totally different history to that given by the Applicant.

From the above, it was clear that a dispute of fact was bound to exist, yet all the same, the Applicant chose to go by way of Application proceedings. It could not in this case be said that the Applicant was not aware when launching this Application that a serious dispute of fact was bound to develop. They have been before the Police who even declined to lay any charges against the first Respondent after he had produced documents to establish ownership. This dispute of fact arose from the time the first Respondent denied the allegations by the Applicant and instead adduced evidence in support of his version, Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) S.A. 1155.

As rightly pointed out by the first Respondent, the Applicant did not reasonably expect that a serious dispute of fact would arise but he positively knew that it would arise. This became even obvious when

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Police declined to charge first Respondent and even refused to release the vehicle to the Applicant. The claim by the first Respondent did not come as a surprise but had been reasonably forseen by the Applicant.

Unlike (he Applicant's agent, the first Respondent's claim was substantiated by documentary proof to the Police, whilst Abdul only made physical identification of the vehicle and this came from the Applicant himself in his papers filed of record. On this ground alone the Application ought to be dismissed with costs.

First Respondent also indicated that the Applicant chose to proceed ex parte without having satisfied the requirements of approaching Court ex parte, Could it be said that;

- The Applicant was the only person interested in the relief sought?

- Was the relief sought a primary step in the proceedings e.g. application to sue by edictal citation?

- Was there any danger that a delay or notice to the other side might precipitate the very harm which Applicant tried to forestall?

If the answer to all these questions is no, then I would not see any reason why the Applicant proceeded by way of ex parte application, which

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in any event has been the case. Applicant was not the only person interested in the relief sought as both parties are claiming the same vehicle. The relief sought would be a primary step but Applicant was seeking for a final relief of releasing the vehicle to Applicant or his Attorneys. It would have been different if it had been for an interim interdict pending an action to be instituted.

The principle of audi alteram partem has been violated in this case where it had been clear that the Applicant was not the only person interested in the relief sought, but also the first Respondent. The rights of the other party were affected by the interim order that was granted yet no exceptional case justified the granting of such an order. Khaketla v Malahleha & Others 1990-1994 LAC 275 at 280. For this ground also, the application ought to be dismissed with costs.

Coming now to the merits of this Application, the Applicant's cause of action is based on rei vindicatio, as he is claiming possession of the vehicle by virtue of being the owner. Applicant claimed to be the owner of the vehicle through one of its subsidiaries, KD ENTERPRISES. He has attached registration certificate to prove that ownership. The certificate is in the name of KD Enterprises.

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Attached to the founding papers is Annexure AT "1" which was a resolution by the Applicant and not the subsidiary company. Nothing in the papers to show that KD Enterprises had authorized the Applicant to institute these proceedings, nor any proof that KD Enterprise is a subsidiary of the Applicant. A company would be deemed to be a subsidiary of another company if that other company is a member of it and

controls the composition of its board of directors ................................

South African Company Law through cases 3rd Edition p.52. There has been no such a proposition in this case.

Applicant has also tendered documents containing information given by people who have not deposed to any affidavits in this case, AT2, 3, 7 and 8 respectively. Neither has the authenticity of such documents been established. Herbstein and Van Winsen - The Civil Practice of Superior Courts in South Africa 3rd Ed. at 81 and Hoffmann - South African Law of Evidence 2nd Ed. at 282 respectively.

Applicant having therefore failed to establish the authenticity of the documents attached to his papers must fail in his case as contents of such documents could not be used in evidence. As such the documents failed to support his claim.

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In the circumstances of this case, the Application is dismissed with costs.

A. M. HLAJOANE JUDGE

For Applicant: Mr Mpaka

For Respondents: Mr Mda