THE
HIGH COURT OF SWAZILAND
LUCKY
GAMEDZE
Plaintiff
And
SWAZILAND
GOVERNMENT Defendant
Civil
case No. 1232/2000
Coram
S.B.
MAPHALALA – J
For
the Plaintiff MR.
D. MADAU
For
the Defendant MISS S.
MASEKO
RULING
(On
points in limine) (04/02/2004)
Plaintiff
filed an action for the return of motor vehicle bearing registration
number NND 2515 engine number 9016205 and chassis number 9006315.
Alternatively payment of the sum of E65, 000-00 being the value of
the motor vehicle when it was attached by the Defendant. Interest
calculated at the rate of 9% per annum a tempore morae. Costs of
suit.
The
Plaintiff alleges in his Particulars of Claim as follows:
2
"...4.
During the month of July 1994, members of the Royal Swaziland Police
acting during and within their scope of employment as servants of the
Swaziland Government, seized and attached the aforesaid motor vehicle
for investigation purposes.
5.
Subsequently Plaintiff made an application for the return of the
motor vehicle and the Mbabane magistrate ordered that it be so
released to Plaintiff. A copy of the court order is attached hereto
marked "B".
6.
On or about November 1997 and at Lugaganeni, Manzini, members of
the Royal Swaziland Police acting during and within their scope as
servants of the Swaziland Government seized and attached the
aforesaid.
7.
Plaintiff lodged an application for the return of the motor vehicle
and court ordered that it be so returned on 1st December 1997. A
copy of the court order is attached hereto marked "C",
8.
During the month of June 1999, Plaintiff approached the police at
Manzini and Lobamba with the court order so that it be released but
they could not produce it but stating that they have released same to
the another person.
At
the time the motor vehicle was seized and attached by Defendant it
was valued at E65, 000-00, a sum which Defendant fails, neglects,
refuses to pay despite lawful demand and in terms of the Limitation
of Action Against the Government Act 21/1972".
The
Defendant has filed its intention to defend and thereafter the
requisites plea. The defence advanced by the Defendant is that
investigations carried on this motor vehicle revealed that the said
motor vehicle was stolen from one Victor Mthembu of 1935 Montsu
Extension 5, Tembisa, Kempton Park, South Africa on the 30th March
1997. The motor vehicle was lawfully detained pursuant to the
provisions of Act No. 16 of 1991 (Theft of Motor Vehicle) upon a
reasonable suspicion of being stolen and to further police
investigations. Thereafter, the Defendant avers that the motor
vehicle in question was released to its lawful owner by a competent
court of law on the 9th January 1998.
