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