C OF A (CIV) NO. 9/91

IN THE COURT OF APPEAL OF LESOTHO

HELD AT MASERU

In the matter between:

FAKO GRIFFITHS APPELLANT

AND

THE COMMISSIONER OF POLICE 1ST RESPONDENT

THE ATTORNEY-GENERAL 2ND RESPONDENT

Coram:

Mahomed,P.
Ackermann,J.A.
Steyn, J.A.

JUDGMENT
Ackermann. J.A.

In March 1991 the appellant applied in the High Court on Notice of Motion for an order directing the respondents to release to the appellant a certain Toyota Combi motor vehicle with registration number A2032 (*the vehicle"). The application was dismissed with costs by Molai J. The present appeal is against this dismissal.

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On the 1st April, 1988 the vehicle in question, which appellant alleges is his property, was seized by the Lesotho police. During or about May 1988 one Nthethe was charged in the Maseru Magistrates' Court with a contravention of section 343(1) of the Criminal Procedure and Evidence Act No.7 of 1981as amended ("the code"), it being alleged that he had been wrongfully and unlawfully found in possession of the vehicle in question as well as another vehicle (not relevant to these proceedings) in regard to which there was a reasonable suspicion that they had been stolen and that he was unable to give a satisfactory account of such possession.

On the 14th June, 1988 in CIV/APN/192/88 the appellant launched an application (the "first application") in the High Court for the release of the vehicle. The first application was opposed by the present respondents on the ground that the vehicle had been seized by the police on a reasonable suspicion that it was stolen property.

Sometime after the 1st April, 1988 the appellant was arrested by the police but released
again before the 9th June, 1988. Sometime between the 12th July and the 1st August, 1988 (the precise date cannot be established on the papers) the appellant was joined as a co- accused in the aforementioned criminal charge against Nthethe.

This criminal prosecution was postponed from time to time because the police investigations had not been completed andthe prosecution could not proceed with its case.

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From the record of those criminal proceedings (which were proved in the present application) it emerges that the vehicle was seized by the police in terms of section 52 f the Code which provides, inter alia, for the seizure by the police of any article which is concerned in or on reasonable grounds believed to be concerned in the commission or suspected commission of an offence. Section 52 makes provision in paragraphs (a), (b) and (c) for the manner in which such seized article is to be dealt with. If not disposed of in terms of paragraphs (a) and (b) it must, in terms of paragraph (c) be
given a distinctive identification mark and retained in police custody or other arrangements made as the circumstances might require.

Sub-section 55(1) of the Code provides that if Criminal proceedings are instituted in respect of any article referred to in section 52(c) and such article is required at the trial
for the purposes of evidence or for the purposes of an order of Court, the police official concerned must, subject to the provisions of sub-section (2), deliver such article to the Clerk of the Court where such Criminal proceedings are instituted or to the Registrar of the High Court, as the case may be.

Sub-section 55(2) in turn provides that if, by reason of the nature, bulk or value of the article in question, it is

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impracticable or undesirable that the article should be delivered to the Clerk of the Court in terms of sub-section (1), the Clerk of the Court may require the police official concerned to retain the article in police custody or in such other custody as may be determined in terms of section 52(c).

From the record of the aforementioned criminal proceedings it appears that the vehicle in question was in terms of sub- section 55(2) placed in the custody of Major Khoza, the investigating officer and PW1 in the criminal proceedings.

When, on the 2nd September. 1988, it emerged that the prosecution was still not ready to proceed with its case in the above criminal proceedings, the appellant, who had still not pleaded to the charge, applied for the case to be struck off the roll. The presiding Magistrate thereupon made the following order;

"The application that the case be struck off is granted but exhibits and other
documents will be kept by PW1 until the case is disposed of or otherwise
determined.”

Although the wording of this order (the "Magistrate's order") is open to some doubt it is clear enough from the context that

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the Magistrate intended the order to apply to the vehicle as well, and the order was so understood and accepted by all parties.

At the time when the Magistrate's order was made the first application between the present parties was still pending. Thereafter, on the 7th March, 1989, appellant caused the first application to be withdrawn because counsel for the Respondents had indicated that the Crown intended proceeding with the criminal case against the appellant forthwith and appellant was desirous of having the criminal charge brought to finality.

When very nearly two further years had passed and the Crown had still not proceeded with the criminal charge against appellant, the present proceedings were launched.

At the hearing of the present application a point of law in terms of Rule 8(10)(c) of the High Court Rules was raised on behalf of respondents which was formulated as follows:

'The vehicle cannot be released to the Applicant because there is a criminal case concerning the same vehicle against the Applicant pending in
Court ....."

Molai J. , accepting the contention that a criminal case

concerning the vehicle in question was still pending against

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the applicant, held as follows:

"It will, therefore, be improper for this court, or, for that matter, any other court to release the vehicle to the applicant before the case has
been finally decided.”

He accordingly upheld the point of law taken and dismissed the application with costs.

There are various avenues open to the presiding judicial officer in an inferior court when the Crown is unable to proceed or does not proceed with its prosecution against an accused charged with a crime and who has not yet pleaded to such charge. They include the following:

If the prosecutor does not appear on the court day appointed for the trial the accused may be discharged in terms of sub-section 278(1) of the Code. This does not deprive the Director of Public Prosecutions or the public prosecutor with his authority or on his behalf, of the right in terms of sub-section 278(3) of withdrawing any charge at any time before the accused has pleaded, and framing a fresh charge for hearing before the same or any other competent court. The triat may be postponed (if necessary) from time to time in terms of section

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149. The court may, on the other hand, require the accused to plead to the charge in terms of section 150 and decline to postpone the trial. In that
event, if the prosecution were unwilling or unable to proceed with its prosecution against the accused, the accused in the event of his having pleaded not guilty, would be entitled to his acquittal.

It was contended in the High Court that because there is no provision in the Code for a Magistrate to strike a matter from the roll and in the light of the fact that a Magistrates' Court is a creature of statute, whose powers are to be found within the four corners of such statute, the Magistrate in the instant case was not empowered to make the order in question In my view it is unnecessary to deal with this contention,
inasmuch as no steps have been taken by the appellant to set aside the order made by the Magistrate. It is clear that the order made by the Magistrate striking the case off the roll did not finally dispose of the case and that the prosecution would
still be entitled to proceed with its case at a later date. In this sense it may be said that the case is still "pending" in the Magistrates' Court, although the accused in the matter
would not be obliged to come to court on any particular day unless and until summoned to do so. It is unnecessary, however, to determine the precise category into which the order made by the Magistrate is to be placed. The fact is that there

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is a binding and currently valid order in existence in that Court decreeing, inter alia, that the vehicle in question "be kept by PW1 until the case is disposed of or otherwise
determined".

It was argued, however, that a period of nearly four years has elapsed since the above order was made without any indication that the Crown is able to proceed with its case and that under these circumstances the High Court had inherent jurisdiction to order the release of the motor vehicle to the appellant. Regrettably this submission cannot be upheld. There is currently still an order of the Magistrates' court in existence dealing with the vehicle in relation to a criminal prosecution instituted in that Court. Such order has not been set aside on appeal or review. In these circumstances the High Court was obliged to respect that order and could not make an order in conflict therewith. Under these circumstances the application was rightly dismissed and the appellant's appeal can accordingly not be sustained.

It is a matter of regret that this Court cannot come to the appellant's assistance. More than four years have elapsed since the appellant was charged with an offence in relation to the vehicle in question. In giving evidence on the 2^nd September, 1988 in the criminal proceedings against the appellant the Investigating Officer Major (now Lieutenant

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Colonel) Khoza gave evidence in support of the Crown's application for a further postponement. He testified that, together with a team of assistants, he was investigating other charges against the appellant which involved "several documents
blue cards and others". He stated that he required "about a month to complete investigations" In his answering affidavit in the present application, deposed to on the 13th March, 1991 (more than two and a half years later) Colonel Khoza proffers
no explanation for the delay nor any indication that the Crown has (or ever will have) any basis for proceeding with its case against the appellant. The lapse of time (which would be unwarranted even in the case of the most complex commercial
fraud case) is wholly unjustified in the present instance. The appellant is entitled to have the case against him proceeded with immediately or the charge against him withdrawn forthwith.

The learned Judge in the Court a quo, in the passage already cited, held inter alia that it would

" ... be improper ..... for ... any other court to release the vehicle to the applicant before the case has been finally decided.’

As already indicated, the appellant is entitled to have the case against him finally decided forthwith. It is necessary to point out, however, that the learned Judge erred
in holding that the Magistrate could hot release the vehicle

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to appellant before the case was finally decided. The provisions of sub-section 56(6) of the Code were apparently not drawn to his attention. This sub-section provides that

" If the circumstances so require or if the criminal proceedings in question cannot for any reason be disposed of, the judge or judicial officer concerned may make any order referred to in sub-section (l)(a)(b) or (c) at any stage of
the proceedings" (emphasis added).

In terms of sub-section 56(1)(a) an order can be made returning the article to the person from whom it was seized.

As already indicated, however, while the order made by the Magistrate was still in force the High Court could not make an order in conflict therewith.

The appeal is accordingly dismissed with costs.

L.W.H.ACKERMANN
JUDGE OF APPEAL

I agree

I..MAHOMED
PRESIDENT

I agree

J.H. STEYN

JUDGE OF APPEAL

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Delivered at Maseru this 20th day of July, 1992.