HIGH COURT OF LESOTHO
TELEKO MOSAO Applicant
COMMISSIONER OF POLICE 1st Respondent
ATTORNEY-GENERAL N.O. 2nd Respondent
by the Hon. Mr. Justice Sir Peter Allen on the 24th day of October,
applicant has applied by Notice of Motion for the release of three
motor vehicles and their documents and keys at present held
vehicles are a Mercedes Benz truck registered number E1660, a white
Datsun van registered number AA 300 and a blue Toyota von
number OW 914. These vehicles were seized from the residence of the
applicant on 7 April 19 88 on the grounds that they
were suspected to
be stolen property.
present application was filed by the applicant on 27 May 1988
requesting that the respondents give notice of intention to oppose
(if any) before 13 July. At that time no criminal charges had been
preferred against the applicant.
On 7 June
1988 the applicant was taken before a magistrate in Maseru charged on
two counts. The first was for theft of a motor vehicle
number ND 328105, which is not one of the three vehicles that we are
here concerned with. The second count was for unlawful
a motor vehicle registration number E 1660, which is . the first
vehicle referred to above, the Mercedes Benz truck,
though it is not
so described in the charge
June the Attorney-General filed a Notice of Intention to Oppose in
the present case. No charges have so far been preferred
with the other two vehicles, the vans.
August this application was set down for hearing on 18 October.
Before that date arrived, on 5 September, the public prosecutor
the magistrate to strike the criminal charge off the Roll and this
was done. Thus, when this application came up before me
on 18 October there were no criminal charges standing against the
applicant in relation to any of the three motor vehicles.
respondents Answering Affidavit there were contained affidavits of
five police officers. Two of these. Major Khoza and Major
stated that they were the CID investigating officers in this case.
The other three were all S.A.P. officers from Ladybrand,
Waal, Sergeant Kramer and Detective Constable Jagga all of the Motor
Vehicle Theft Branch.
RLMP officers stated that, on information received, they believed the
three vehicles to have been stolen and that was the
reason why they
were seized. The three SAP officers claimed to be experts but their
affidavits were very inadequate. They did not
their mechanical or engineering qualifications nor the length of
their experience in the examination of stolen motor vehicles
could entitle them to justify their claims that they were experts.
Kramer stated that he examined the first vehicle, registered number E
1660. He did not give any description identifying the
type and make
of vehicle nor did he mention the date and place where he examined
it, nor who was present at the time. His sole
finding was "that
the vehicle had been tampered with." He made no attempt to
describe in what way it had been tampered
with and I find, this
affidavit to be quite useless.
Waal stated that he examined a white Datsun van registered number AA
300. He did not say when or where he saw the vehicle
nor who was
present at the time. His sole finding was that the vehicle "had
been tampered with upon the engine and the chassis."
He did not
explain or describe in what way it had been tampered with and I find
this affidavit also to be of no assistance to the
Court or indeed
Constable Jagga did not bother to state or describe which vehicle he
examined nor when or where he saw it. He too merely found
engine and chassis numbers had been tampered with." There was no
explanation of what he meant by tampering
with these numbers. It
would seem from Major Khoza's affidavit that this constable examined
the third vehicle, the van registered
number OW 914,
why the constable could not say so in his affidavit was not revealed.
It does not seem to be very competent.
opinion none of these police officers is shown to be an expert in
anything relevant here and their affidavits are of no real
assistance to the Court in this matter. No documents concerning these
vehicles were exhibited and there was no convincing
that the vehicles were or might have been stolen.
charge with regard to the first vehicle was withdrawn last month, and
no charges have been brought against the plaintiff
with regard to the
other two vehicles, it would appear that the Maseru Police also do
not find the so-called evidence of these
SAP officers of any great
assistance or support in making out a case for the prosecution
of the applicant.
for the respondents tried hard in Court to make bricks without straw.
He submitted that the case was still being investigated
and that the
vehicles had not been detained for very long (over six months in
fact). However, there was no indication given that
any other evidence
was likely to be discovered nor that it is proposed to bring any
specific charges against the applicant
in this matter.
similar case which came before the Court of Appeal in January. 1987,
Ikaneng Makakole v The Officer Commanding CID Maseru &
Attorney-General C of A (Civ) No. 18/85, (unreported) Miller J.A.
Moreover, no prosecutions have been instituted in respect of any
offence concerning the car during the lengthy period that has
since the police took possession of it. There does not appear to be
any justification for the continued detention thereof.
It must be
recognised that the statutory provisions relating to detention of
property generally anticipate prosecution for a relevant
result of the prosecution might, and usually does, determine the fate
of the detained property which might be
ordered by the Court to
be forfeited to the state or, in the event of the prosecution ending
in an acquittal, to be returned to
the person from whom it was taken
for detention. In short, what was visualized by the legislative
was purposeful detention..
If a stage is reached when the detention
appears no longer to be purposeful, there can surely be no point in
of the property.
opinion that closely describes the situation in the present case.
There are no pending charges against the applicant concerning
three vehicles and it would appear that there are none likely to be
brought against him in the foreseable future. Thus their
not purposeful and so it cannot be allowed to continue.
this application is allowed and the respondents must now release to
the applicant the three
identified in the Notice of Motion together with their keys and
documents. The applicant is to receive his costs in this
P. A. P.
Phafane for the applicant
for the respondents
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