Windhoek-Windhoek High Court Judge Boas Usiku last Friday dismissed an urgent application by a Windhoek resident to have his licence disc returned after he was caught with LED lights on his Land Cruiser by a Windhoek City Traffic Cop.
Simon Raines instituted the urgent application after he failed to get his disc back after two tries through his lawyer, Samuel Philander at ENSAfrica, who instructed Hettie Garbers-Kirsten in the urgent application.
The City cop that impounded the licence disc and his boss, Superintendent Adam Eiseb, the chief of the City Traffic Police, opposed the application and instructed Henry Shimutwikeni, who instructed Advocates Eliaser Nekwaya and Tuafeni Muhongo to argue the matter.
According to documents filed by Raines, he was driving his car along Mandume Ndemufayo Avenue, motioning to turn into Sam Nujoma Drive when Constable Erwin Katiti signalled for him to stop – which he did.
When the officer arrived at his window, Raines said, he mentioned that Raines was carrying LED lights on his car which is not according to regulations. Katiti then ordered Raines to hand over his licence disc, but the latter refused, saying the lights operate differently from the regular lights and are switched on and off by separate switches.
Despite his vehement protests, Raines said, Katiti insisted on taking his disc and he relented, as he had two minor children at home unsupervised. He then proceeded to contact his lawyers, who sent letters to Eiseb to return the disc with immediate effect, but to no avail, which prompted him to launch the urgent application.
He claimed that his case is of an urgent nature, as he needs the car in his day-to-day activities and cannot wait for due course, which could take a few months.
According to Raines, the conduct of the respondents, Katiti and Eiseb, was improper and boils down to spoliation in the circumstances, as he is been unlawfully deprived by them of the use and enjoyment of the car.
He said he had free and undisturbed possession of his car, which was disturbed without any proper legal consent or authority provided and asked the court to give him back his undisturbed possession without delay. He also asked the court to grant him costs in the matter to include one instructing and one instructed counsel.
Hold on, said the respondents, first of all Raines must prove the matter is urgent before they can go into the merits. According to them, the application was launched prematurely. They further hold that Raines had a much cheaper option to follow, taking his car to be tested by a vehicle examiner who will cancel the notice of suspension if the car is roadworthy and return his licence disc.
They further argued through Nekwaya and Muhongo that Raines did not exhaust all his options before he rushed to court. According to them, Raines was merely directed to take his vehicle to the vehicle testing station to determine whether the vehicle complied with regulations.
“Accordingly, if the opinion of the traffic officer is not correct, the regulations provide for a mechanism for a final decision to be made by the vehicle examiner at the testing centre,” they said and continued: “What the applicant seeks to do in these proceedings is to ask the court to usurp the functions of the vehicle examiners to make findings on roadworthiness, or otherwise of the vehicle in respect of the lights.”
They further submitted that it would not be in the interest of the administration of justice for any vehicle user to approach this court to assert the functions of a statutory functionary and make a final decision.
Accordingly, Nekwaya and Muhongo said the application was not ripe for determination in the absence a decision of the vehicle examiner in terms of the regulations and asked that the application be dismissed with costs, which request was granted by Judge Usiku.