Criminal court for car sold to pay E4k loan
MANZINI – The Small Claims Court has referred a case involving the alleged sale of a car by a court messenger to a criminal court in an interlocutory case.
The term interlocutory is used to indicate a lack of finality. An interlocutory decree is a judgment that does not settle all of the issues of a case and where further action by the court is needed to settle the controversy.
This is after the messenger, Mlamuli Simelane, was accused of selling a debtor’s car to settle a E4 000 loan, which he owed to Steven Shongwe. Acting Commissioner of the Small Claims Court, Sifiso Ngozo, stated that the case involved criminal elements and should be heard by the criminal court. The Small Claims Court typically deals with civil matters that involve money less than E20 000 and no legal representation is required. Shongwe, the plaintiff in the main matter, had taken Mboni Nhleko to the Small Claims Court over the E4 000 loan.
According to the defendant (Nhleko), on or about December 22, 2022, the messenger (Simelane) came to him at Matsapha Industrial Site, and demanded the payment of Shongwe, the plaintiff. Nhleko relayed that the messenger, who was in the company of another man, requested that he pay the E4 000 in instalments.
Mboni said he then requested to pay instalments of E500 monthly.
“After about two or three weeks, I discovered that the messenger in my absence took, from my residence, a Toyota Vitz vehicle with the registration KSD 577 CM. He took the car without its keys in the presence of a minor, a 17-year-old,” Mboni submitted.
Messenger
He further narrated that he was told that the messenger towed the car. Upon learning that the car had been supposedly taken by the messenger, he mentioned that he then called and told the messenger that the car did not belong to him, but to his brother, Vusi Nhleko. Mboni told the court that the plaintiff instructed him to get a lawyer. He added that he told the messenger to return the car to its owner but was again told to get a lawyer. It is of note that lawyers are not involved in small claims. Vusi, brother to Mboni, said he had been bedridden and was unable to attend to the issue. He provided the court with the car’s blue book, which was dated 2020. It showed that the vehicle belonged to Nagra Motors. The court was informed by a traffic officer, who gave evidence, that normally, when the blue book had a car dealership’s name, it was when the owner had not settled the payment.
“I found myself paying for a car that I wasn’t able to make use of,” Vusi said.
On the other hand, the messenger (Simelane) submitted that the court issued a warrant of execution on or about October 2022. He said he had been in contact with the plaintiff. Simelane also mentioned that he went to the plaintiff’s residence where he found a young lady.
“Mboni said I should come to Matsapha to get payment but when I got there, he failed to pay,” the messenger submitted. He elaborated that again, he went to his residence and met Mboni’s wife but received empty promises.
Auction
“I then attached the motor vehicle in the presence of his wife and sold it in public auction. I have been in possession of the car for a long time and I then requested advice from lawyers, who told me not to release it until the owner produces evidence of ownership,” said the messenger.
According to the messenger, he had kept the vehicle for more than 21 days and the law stated that he was allowed to auction it after advertising in the local newspapers. He mentioned that when Mboni told him that the car did not belong to him, he went to the police headquarters to verify ownership of the car, to which he discovered that it did not belong to Nhleko but the car dealership.
Meanwhile, the acting commissioner revealed that the file showed that there was no auction as it was supposed. He said the cut-out of the advert of the auction or a copy thereof, and a report of how the auction went, should have been filed, but that was not the case.
Acting commissioner Ngozo said it was for that reason that his duties were functus officio, meaning his official functions were over as an order was issued. Ngozo further stated that due to the fact that messengers of the court were not employed by government or by any employer for disciplinary hearings, and that there were criminal allegations, he advised that Nhleko should open a criminal case against the messenger if they saw criminality.
He could only issue advice and not an order in the matter that the Nhleko brothers should open a criminal case as an order was issued for the payment of the E4 000.