Nqojane v Liphoto and Others (CIV/APN 5 of 80) [1980] LSHC 9 (29 January 1980)

CIV/APN/5/80 IN THE HIGH COURT OF LESOTHO In the Application of : SEISA NQOJANE Applicant v ARONE KHATISO LIPHOTO 1st Respondent TSABELA TSUNYANE 2nd Respondent JOACHIM MOKOTELI NTEBELE 3rd Respondent 4th Respondent DAVID MARUPING 5th Respondent MANTHUNYANE Respondent MAFEFOANE 7th Respondent THABO QHOBOSHEANE Respondent K. M. KHOATSA 9th Respondent LEETO LEPHOTO TS'EHLO MAHAHA 8th 6th Reasons For Judgment Filed by the Hon. Judge Mr. Justice M. P. Mofokeng on the 29th day of January, 1980. The applicant seeks confirmation of an interim Court Order granted by this Court on the 15th day of January, 1980. The said Order was couched in the following terms: IT IS ORDERED THAT: A Rule Nisi be issued returnable on the 1. 2lst January, 1980 at 9.30 a.m. calling upon the Respondent to show cause why: (a) The First, Second and Third Respondents together with other Respondents should not open the Staff Club Car and hand over the property therein to the Applicant and to the Committee of the Non-Academic Staff of which Applicant is the Chairman. (b) The Respondents should not be restrained from interferring with the affairs of the Non-Academic Staff Association and holding themselves out as the interim committee of the said Association. /(c) -2- (c) The Respondent should not be directed to pay the costs of this Application. This Rule Nisi operate as an interim inter- 2. dict. The applicant is the Chairman of the Non-Academic Staff Association (hereinafter referred to us the Association) of the National University of Lesotho. The applicant states in his affidavit that he was authorised by a meeting of the Association held on the 6th January 1980 to bring this application. I must, however, point out that no such authorisation was filed of record. However, this is not fatal; there was moreover, no dispute about it. I must also state that the Respondents were unrepresented. They had not filed properly stamped documents; some of the documents were unsigned and opposing affidavits were missing. The Court leaned backwards and allowed all these errors to be rectified. In her affidavit (annexure "A") Matebello Namane states that she was employed by the Association as a saleslady at the Staff Club Bar (hereinafter referred to as the bar). On the 7th day of January 1980 she opened the bar at 4.00 p.m. Then the first and second respondents and in the presence of the third respondent changed the locks of the bar and actually told her "to go and tell the management of the Staff Club Bar." The third respondent thereafter put up a notice on the notice board that the first respondent had closed the bar. She then informed the applicant about what had occured at the bar. The facts as deposed to by her are admitted. applicant deposed briefly, in his affidavit, that immediately he received the information from the saleslady, he proceeded to the bar and found it locked and the padlocks had been changed. The bar had been closed without his knowledge. on the 8th day of January 1960 the first and third respondents, in the company of headman went to the /home of -3- home of Tankiso Moleko. He is the treasurer of the Association. They informed him that there had been a conference where it was resolved that they should retrieve the books of account of the Association from him. As he had not been to the University for about two weeks (it was during vacation) he believed them and therefore handed them the books. However on the 10th January 1980 he met the applicant and it was from the applicant that he learnt that the first and third respondents had no authorisation to take away the books of account of the Association nor was there ever hold a conference by the Asso- ciation as they had stated. These facts are deposed to by the said Tankiso Moleko in his affidavit (annexure "B"). The applicant concludes: 6. (a) The First, Second and Third Respondents in the premises above have spoliated the lion-Academic Staff Association of the Staff Club Bar by wrongfully and unlawfully barring access to it by locking it, they have also wrongfully and unlawfully taken the books of account from the treasurer of the said Association. (b) The stock in trade in the Staff Club Car is estimated at over R3,000-00 and the loss in business has been about R100-00 a day. 7. (a) The 4th, 5th, 6th, 7th, 8th, 9th and 10th Respondents have associated themselves with the said wrongful deprivation of possession of the property of the Non- Acadcrnic Staff Association. (o) In terms of Clause 19 of the Constitution of the Non-Academic Staff Association Constitution the term of office of this committee of which I am Chairman should end at the Annual General Meeting to be hold during the last week-end of January. (c) (i) In the event of any members wishing for a special emergency meeting forty members can sign a petition in terns of section 20 of the Constitution. (ii) No such requisition was made. (d) In the premises any attempt by the Respondents to take over the property of the Non-Academic /Staff -4- Staff Association is illegal and unconstitutional." The respondents made opposing affidavits in which they associated themselves with the affidavit of the third respondent. In reference to the facts as deposed to by Tankiso Moleko, in his affidavit, the third respondent states quite clearly: " 7. Deponent (i.e. Tankiso Moleko) was collectively deposed is Treasurer of the said Union (i.e. Association) in a Special General Conference of the said Union hold on the 11th January, 1980 (My underlining). " He Guys that he was "properly authorised" to take away the books of account of the Association by the Special General Conference held on the 12th October, 1979. He further states that: " Ad para. 4: 19. Respondent accepts that closure of the Staff Club was done without the knowledge of the Applicant. But respondent does deny that the said closure was done without the knowledge of the Non-Academic Staff Union which had, in fact, authorised the action. Ad para. 7(a): 20. Respondent denies as "wrongful deprivation" actions which were carried out in protection of the interests of the Non-Academic Staff Union." and "Ad para. 8(a): 30. Respondent does verily claim that he is member of an Interim Executive Committee which committee was empowered by the Special General Conference held on 11th January, 1980." /It is quite - 5- It is quite clear that there is no dispute of facts. The respondents merely assert that they had a right to do what they did. There is no doubt that the applicant, as Chairman of the Association was in lawful possession of the assets of the Association. In this application the Court is concerned with the events that occured on the 7th and 8th of January 1980. At that time the applicant and the treasurer were not yet "collectively deposed" as the third respondent concedes and the rest of respondents also agree. They say that applicant and the treasurer were only deposed on the 11th January, 1960. But were they over deposed as the respondents allege? According to the third respondent, a Special General Conference was hold on the 12th October, 1979. Applicant was the Chairman of that conference. There was rowdiness. (The third respondent annexed an extract of the minutes of the said conference; though in Sesotho language which language this Court is not ignorant of, actually stating that to have occured. (See Annexure "B" paragraph 7 and C ) ). The Chairman then closed that conference. Thereafter, forty-three persons remained in the hall when the rest of the members left. They purported to continue that conference which had been closed by the Chairman. It was in this meeting where the decision to close the bar and take away the books of account of the Association was taken. This is what the third respondent regards as an authorisation to do what he subsequently did. There had been a request of the conference held on the 12th October, 1979. The procedure adopted followed the provisions of the constitution. The conference ended when the Chairman closed it. What the few remaining people did thereafter was certainly not a continuation of the Special General Conference, nor did it constitute another Special General Conference merely because more than forty members were present. It was contrary to the provisions of the Association's Constitution. It follows, therefore, that that purported conference was unconstitutional and all its decisions were nul and void. So much for the so-called authorisation, and that the respondents form an interm committee of the Association. /This is — 6— This is a clear case of mandament van spolie. The essence of this remedy is that the applicant enjoyed peaceful and undisturbed possession. (See hall v. Pitcoane & Others, 1911 T. P. D, 853 at 856.) The applicant's stock (which he possessed on behalf of the association) was inside the building, so was his employee Matebollo Mamane who was ready to serve the customers. In my view, these factors indicate that in law applicant was in legal possession and possession may be one of degree. (See Simon Moshoeshoe v. David Ryan, CIV/APH/114/79 (unreported)at page 6 ). The remedy sought by the applicant is available to possessors not in the strick sense as for example to a lessee (Rieseberg v. Rieseberg, 1926 T. P. D. 59 at 65; Bennett Pringle (Pty) Ltd. v. Adelaine Municipality 1977(1) S. A. 230(E) at 237.) The respondents admit that they locked the bar; drove away applicant's employee and removed the books of account. All, there- fore, the applicant had to establish (and the onus is on him) and prove is possession of some kind which "warrants the protection accorded by the remedy and that he was unlawfully outsted." per Van Blerr, J. A. in Yeko v. Cana, 1973(2) S. A. 735 at 739G. However much the respondents were aggrieved by the action of the applicant in closing the conference of the 12th October 1979 before the business was finished, they had no right to take the law into their hands. That is the fundamental principle of this remedy. The law is quite clear on this point, so clear indeed that a spoliation order is available to a thief or a robber unless he is caught flagrante delicto. That the applicant was in clear possession and was illicitly deprived of such possession by the respondents, is in no doubt. I must state, in fairness to the respondents, that they ultimately conceded that their actions were, in law, wrong and they ought to restore the status duo ante. The question of costs has occassioned me great difficulty. The general rule is that costs follow the event. The respondents opposed the application. The /applicant has - 7- applicant has been wholly successful. He has succeeded in establishing a substantial right. He had to come to Court in order to do that. I an mindful of the fact that the respondents realised their folly but that was rather too late in the day. If I simply depart from the normal rule because of this factor alone, I would not be exercising my discretion judicially. I would be acting arbitrarily. I have therefore come to the conclusion that there are no good grounds for me to depart from the general rule. In the result the order of the Court is confirmed. The respondents are ordered to pay the costs jointly and severally, the one paying the other to be absolved. JUDGE. 23th day of January, 1980. For Applicant For Respondents : In person. : Mr. C. Maqutu