CIV/APN/52/87

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

JACK
MABENA Applicant

v

DIRECTOR
OF PUBLIC PROSECUTIONS 1st Respondent

OFFICER
COMMANDING, ROYAL LESOTHO MOUNTED

POLICE
(THABA-TSEKA) 2nd Respondent

JUDGMENT

Delivered
by the Honourable The Chief Justice Mr. Justice B.P. Cullinan on the
21st day of July, 1987.

This is
an application for the restoration of a motor vehicle.

It is not
disputed that the vehicle was seized by the Royal Lesotho Mounted
Police. There are two affidavits before me. The applicant
deposes
that he resides in the Republic of South Africa. He deposes that on
the 26th January, 1986, his vehicle "went missing"
at his
residence in Durban.. He reported the matter to the South African
Police. On the 24th November, 1986, he"received information
that
a vehicle fitting the description of my vehicle was in the custody of
Lesotho Mounted Police at Thaba-Tseka". He contacted
the learned
Counsel for the applicant, Mr. Matlhare, in the matter. He deposes
that "it came to me as a shock to learn from
my Attorney .....
that my vehicle was conveying or was being used for conveying dagga."

There is
an opposing affidavit, sworn by a Captain of the Royal Lesotho
Mounted Police, stationed at Thaba-Tseka. He deposes that
on the 10th
of February, 1986, he arrested the applicant and four other persons
"for conveying or being in possession of 20
bags of dagga in the
vehicle which is

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the
subject matter of this application": after arrest and seizure of
the vehicle, the applicant and the four others escaped
from lawful
custody.

I observe
that under the Dangerous Medicines Act 1973, there is seemingly no
power of seizure of a vehicle used in connection with
an offence
under the Act (see section 20 (4) and section 32 (1)). There is,
under section 26(1)(b)of the Act, a mandatory power
of forfeiture by
the court in the matter, that is, upon conviction of an offence under
the Act. The learned Crown Counsel Mrs.
Ntsonyana has however pointed
to the provisions of section 51 of and Part I of the First Schedule
to the Criminal Procedure &
Evidence Act 1981, under which, upon
the arrest of a person for an offence, say, under the Dangerous
Medicines Act, there is a
power of seizure of a vehicle used in
connection with such an offence.

Clearly
there are issues of credibility arising from the affidavits, which
can only be settled by viva voce evidence. Mr. Matlhare
submits that
in view of the applicant's difficulties in coming to Lesotho, the
court should make an order for a commission to examine
the applicant
in the matter, that is, in the Republic of South Africa. No formal
evidence is here involved. I cannot see how such
issues of
credibility could be settled by ordering a commission.

The Court
has been advised this morning of the unsuccessful efforts made to
obtain travel documents for the applicant, and so secure
attendance
before the Court: the applicant on the other hand deposes to
unemployment,and thus his financial inability to attend
trial. As
Mrs. Ntsonyana submits, the applicant also deposes that upon
receiving information concerning his vehicle he "immediately

proceeded to Lesotho", where he contacted his Attorney. He was
of course free to contact his Attorney. As owner of a vehicle
alleged
to have been connected with the commission of an offence, however, it
was the applicant's duty to also contact the police
in the matter,
and to assist them with their investigations.

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He never
did so. He does not, incidentally, state the source of his
information that the vehicle was in police custody at Thaba-Tseka.

More importantly, having journeyed once to Lesotho, I fail to
appreciate his difficulties in seeking to come here again.

Even when
it comes to ownership of the vehicle, there is no more than the bald
statement of ownership thereof. Such claim is not
admitted by the
Crown. As Mrs. Ntsonyana submits, there is no documentary evidence of
ownership before the court.

The onus
is upon the applicant in the matter. It is his application. Clearly
he has failed to discharge such onus. The application
is therefore
dismissed with costs to the Crown.

B.P.
CULLINAN

CHIEF
JUSTICE

21th
July, 1987.

For the
Applicant : Mr. I. Matlhare

For the
Respondents : Mrs. T.N. Ntsonyana, Crown Counsel