SWAZILAND
HIGH COURT
DE
SOUSA Feaelis
Applicant
V
COMMISSIONER
OF POLICE
1st
Respondent
ATTORNEY
GENERAL
2nd
Respondent
MIKE
MAMBA
3rd
RESPONDENT CIVIL
CASE
NO. 1253/02
CORAM SAPIRE
CJ
FOR
APPLICANT MR. RODRIQUES
FOR
1st & 2nd APPLICANT
FOR
3rd RESPONDENT MR. MABILA
JUDGMENT
03/06/02
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This
is an application in which the applicant seeks delivery to him of a
vehicle of which he claims as his own. The vehicle, at the time of
the making of the application and as the position still is, that the
vehicle in question, registration MMF78/11 is in the possession of
the first respondent.
I
will consider later how the vehicle got there but before coming to
the merits of the matter I will deal with two points in limine raised
on behalf of the third respondent. The points in limine are as
follows:
1. There
are no allegations in the founding affidavit to establish the
jurisdiction of this court.
i. Such
a contention is untenable because first of all it is quite clear that
this court has jurisdiction in matters such as this over all persons,
resident or conducting business in Swaziland.
ii. The
Royal Swazi Police is part of the establishment of the country as is
the Attorney General and the third respondent who seems to have an
interest in the matter or who claims interest in the matter is also
said to be resident in Fairview North in the Manzini District.
iii. Although
the word 'jurisdiction' does not appear in the founding affidavit,
the allegations do establish that the court prima facie has
Jurisdictions to hear this matter as the respondents are within the
area of its jurisdiction.
iv. The
point is therefore without substance
2. The
form of notice used by the applicant is defective
i. Indeed
in some respects it does not comply with the provisions of the rules
of court.
ii. My
attention has been drawn to an earlier judgment; of this Court, in
which Masuku J held that such a notice is irregular. This case the
position is somewhat different.
iii. It
has been said time and again in the Appeal Court that the Rules of
Court are not there to provide scope for the attorneys to score
points against each other.
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iv. The
purpose is of a notice of motion is to ensure that
1. The
Respondent is informed of the proceedings being brought against him,
2. What
the nature and particulars are of the claim being made,
3. When
such claim will be heard, and
4. What
is required of him if he wishes to oppose.
so
that the respondent is not taken by surprise and given such
information as is necessary to enable him to oppose the granting of
the relief sought.
v. It
is open to anyone served with papers, which are not in the form
prescribed by the rules, if prejudiced by such nonconformity to
have the service and proceedings set aside
vi. In
the instant case, however defective, the notice of application or the
notice of motion may be, the respondents have all received the
notice, they have all reacted to thereto and filed affidavits placing
before the court such facts, as they have considered relevant. Third
Respondent who has raised the point is represented by an attorney who
is in a position to present full argument None of the respondents has
taken the step of setting aside the irregular notice in terms of Rule
30. No prejudice to the respondents due to the form of the notice
alone or occasioned by the defective notice has been suggested by any
of the parties. First and Second Respondents do not in fact oppose
the relief claimed. In so far as it may be necessary I condone any
non-compliance of the rules and will proceed to deal with the merits.
The
applicant seeks return to him of a motor car which is in the
possession of the police. It is a vehicle that has been registered as
it appears from the registration number to have been registered by
Applicant in a neighbouring country. The applicant himself is
apparently or may be, a peregrinus for he describes himself as
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"an
adult male, a Mozambican an Information Officer in the Ministry of
Foreign Affairs in the Republic of Mozambique." He claims
ownership of the vehicle in question. The affidavits reveal that he
acquired this vehicle by purchase from one Danny Kruger who in turn
had shortly before acquired it from the third respondent by exchange.
The vehicle in question was one of three given as quid pro quo for a
BMW. The three vehicles that were given in exchange became by
traditio the property of, initially Kruger, who on sale and delivery
of one of them namely that now claimed by the applicant, to the
applicant, transferred ownership therein to the applicant.. There is
really nothing to contradict Applicant's allegation that he is the
owner.
Sometime
after the exchange transaction had taken place, the police
dispossessed the third respondent of the BMW. It seems to be alleged
that the vehicle was a stolen one, though on the papers this has not
been established.
It
is the third respondent's case, that the exchange transaction was
fraudulent. This is not clearly established on the papers. It is
clear that the Royal Swazi Police removed the BMW motor vehicle that
he had acquired from his possession. There is nothing to show that
the police were entitled to remove the vehicle or that it was in
fact, to Kruger's knowledge, a stolen vehicle. The matter is left
entirely undecided. More important is that there is nothing to
support 3rd respondent's assertion that the applicant was not an
innocent third party.
Sometime
after the third respondent was dispossessed of the BMW he saw the
applicant driving the vehicle in Swaziland. He succeeded apparently
in stopping the applicant and either by force or otherwise in
inducing the applicant to part with possession of the vehicle to the
third respondent, who took it and placed it in the hands of the
police.
The
question of spoliation does not really arise in this case. This is,
as appears from the notice of motion and the affidavits, which have
been filed, a vindicatory claim. It is a claim for delivery of the
vehicle that is owned by the applicant and which is presently in the
possession of the police. The police represented by the respondents
one and two are willing to hand over the vehicle and to abide the
decision of the court.
The
attitude of the first and second respondent which are the
Commissioner of Police and the Attorney General is quite clear, they
made no claim to this vehicle and
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are
prepared to deal with it as ordered by the court. The vehicle does
not appear from the papers to have been seized by the police in
connection with any pending case prosecuted against the Applicant.
There is really no reason at all why the first and second respondents
should not hand over the vehicle to the applicant.
The
third respondent was given notice of the proceedings but the relief
claimed in the notice of motion does not calling upon him to do
anything.. All the relief claimed is, an order directing the first
respondent to release forthwith to the applicant or his attorneys the
motor vehicle, which is fully described.
For
these reasons an order would be made in terms of prayer (1) of the
notice of motion directing the first respondent to release the
vehicle to the applicant including applicant's attorney forthwith.
In
view of the attitude taken by the first and second respondent it
would be unfair to make any order for costs against them and the
costs of this application would have to be borne by the third
respondent whose opposition to the order is unjustified.
S.W.
SAPRE
CHIEF
JUSTICE
