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CIV/APN/286/93

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

RAMOSAMO
MAKHABANE Applicant

and

OFFICER
COMMANDING (CID)(MAFETENG) 1st Respondent

THE
ATTORNEY-GENERAL 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 12th day of August. 1993.

The
applicant seeks, inter alia, an order directing the Respondents to
release to him a Datsun E.20 Combi with registration numbers
A.1182.
The Respondents oppose the granting of the order. Affidavits have
been duly filed by the parties.

In as far
as it is relevant, the facts disclosed by affidavits are common cause
viz. that prior to 5th November, 1985, the applicant
was in
possession of the vehicle, the subject matter of this dispute. On the
day in

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question,
5th November, 1985, the police in Mafeteng seized and retained the
vehicle. Consequently the applicant instituted these
proceedings for
an order as aforesaid on the ground that the vehicle was his lawful
property. The Respondents resisted the order
on the ground that the
vehicle was the subject matter of a criminal charge against the
applicant.

It would
appear that a criminal charge of theft was indeed, preferred against
the applicant on 1st April, 1987 in connection with
this vehicle. The
charge was, on 23rd August, 1990 dismissed on the ground that some
witnesses for the prosecution had failed to
turn up. As he had
already pleaded to the charge, the applicant was found not guilty and
discharged.

It is
significant that having disposed of the criminal trial against the
accused in the manner she did, the presiding officer did
not make an
order as to the disposal of the vehicle, the subject matter of this
dispute. the question that arises is whether or
not the High Court
should, in the circumstances, make the order. In the contention of
the applicant, the High Court should make
the order and finds support
for his contention in the decision of the court of Appeal in Ikanenq
Makakole v. The Officer

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Commanding
C.I.P.. Maseru and Another C.of A. (CIV) No. 18/85.

It is,
however, important to observe that in Ikaneng Makakole v. The Officer
Commanding C.I.P.. Maseru and Another, supra, the court
was dealing
with a case in which the applicant had never been criminally charged
and found not guilty by any court. In the present
case, the applicant
has been criminally charged and found not guilty in connection with
the theft of the vehicle, the subject matter
of this dispute. That
being so, the case of Ikaneng Makakole v. The Officer Commanding
C.I.P.. Maseru and Another, supra. is clearly
distinguishable from
the present case and it is no authority that where the applicant had
been criminally charged and found not
guilty by a subordinate court,
the High Court should make the order sought by the applicant.

In my
view the provisions of subsection (3) of section 56 of the Criminal
Procedure and Evidence Act, 1981 are applicable to the
facts of the
present case. The subsection reads:

"(3) If the judge or judicial officer concerned does not, at the
conclusion of the relevant proceedings, make an order under

subsection (1), such judge

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or judicial officer or, if he is not available, any other judge or
Judicial Officer of the court in question, may at any time after
the
conclusion of the proceedings make any such order and for that
purpose hear such additional evidence, whether by affidavit
or
orally, as he may deem fit."

(my underlining)

I have
underscored the words "judicial officer of the court in
question" in the above cited subsection (3) of section
56 of the
Criminal Procedure and Evidence Act 1981 to indicate my view that
where, at the conclusion of a criminal trial a judicial
officer
omitted to make an order of a disposal an application to make such
order must be made to the judicial officer concerned
or in the
absence of that judicial officer to any other judicial officer of the
court which heard the criminal trial involving
the subject matter of
the disposal order sought by the applicant.

In the
present case the Criminal trial was heard and concluded before a
judicial officer in the subordinate court of Mafeteng. That
being so,
this application ought to have been brought before the judicial
officer concerned in the subordinate court of Mafeteng
and not before
the High Court.

Consequently
I would dismiss this application with

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costs.

B.K.
MOLAI

JUDGE

August,
1993.

For
Applicant: Mr. Phafane

For
Respondent: Mr. Mohapi.