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.