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CIV/APN/114/99
IN THE HIGH COURT OF LESOTHO
In the Application
of: JOHANNES N. ALOTSI Applicant
vs
OFFICER COMMANDING(R.L.M.P. HEADQUARTERS) 1St Respondent
ATTORNEY-GENERAL 2nd Respondent
REASONS FOR JUDGMENT
Filed by Hon. Mr Justice M.L. Lehohla on the 15th day of November. 1999
On 8th November, 1999, after hearing arguments by Mr Nteso for the applicant and Miss Mothepu for the two respondents respectively, this Court gave a final verdict in terms of which the application was refused with costs.
Reasons for that refusal follow below.
The applicant had approached this Court in March this year by way of a Notice of Motion moved ex parte. My learned brother Peete J granted an interim order on
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19th March 1999 returnable on 23rd April, 1999.
After a number of extensions of this order the matter finally came to be argued on 8th November, 1999.
In the notice of motion referred to above the applicant sought an order emanating from an application couched in the following terms :-
1. A Rule Nisi be issued returnable on the...............day of March 1999 calling
upon the Respondents to show cause, why;
The Rules of this Honourable Court relating to notice shall not be dispensed with on account of urgency of this matter;
That (sic) first respondent shall not be ordered to release to the Applicant, a Toyota bakkie which was in applicants lawfully (sic) possession, the particulars of which are :-
- white Toyota Hilux bakkie
- Registration No. Special permits
- Engine No. 2Y9020690
- Chassis No. YN51-0004858
Respondent shall not be ordered to pay costs of this application
Granting (sic) applicant further and/or alternative relief;
2. Prayer l(a) to operate with immediate effect.
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As said earlier prayer l(a) which merely relates to abridgement of periods of notice was granted. But amazingly the Interim Order prepared by the applicants lawyers and signed by the Registrar of this Court gives the impression that every rule prayed for in the notice of motion had been granted ex parte. This was not only prejudicial to the respondents but patently wrong as the minuted interim order of my learned Brother Peete does not remotely suggest that the entire prayers in the notice of motion were granted by him. It is essential therefore that the Registrar and or Deputy Registrar or Assistant ones should be careful when signing court orders that they accord with what was sanctioned by the Judge in question in the first place. It occasions no harm in the event of any doubt or even as a matter of routine to verify with the Judge in question that the draft orders from legal practitioners accord with what the judge authorised. Any draft order that does not accord with that granted by a judge should be rejected by the Registrar or any of her Assistants who happens to be called upon to sign any such document.
The main thrust of the applicants contention in this application is that whereas he was found not guilty of an unlawful possession of the vehicle in question in the Court below where he was facing a criminal charge, then even in the absence of the learned Magistrate's
pronouncement that the applicant may lawfully possess the
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vehicle in question, it follows that the vehicle either was awarded to him or should
be awarded to him.
In my view the applicants contention is wrong. A proper reading of section 56 of the Criminal Procedure and Evidence Act No.7 of 1981 reveals how mistaken the applicants contention is.
This section reads :-
"56(1) The judge or judicial officer presiding at criminal proceedings shall at the conclusion of such proceedings, but subject
to this Act or any other law under which any matter shall or may be forfeited, make an order that any article referred to in section 55:-
be returned to the person from whom it was seized, if such person may lawfully possess such article; or
if such person is not entitled to the article or cannot lawfully possess the article, be returned to any other person entitled
thereto if such person may lawfully possess the article; or
if no person is entitled to the article or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the Crown.
(2) The court may, for the purpose of any order under subsection (1), hear such additional evidence, whether by affidavit or orally, as it may deem fit".
In my view the sort of application that the applicant is moving before this Court
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is the type that he was not precluded from pursuing before the very judicial officer who acquitted him therefore who presumably, on account of the evidence he or she weighed and assessed, could not have awarded the vehicle to the applicant on acquitting him without thereby prejudicing proper application of the relevant subsections of section 56 referred to above.
It was quite inauspicious though not unacceptable that this application was moved immediately after I read this Courts review Judgment in CRI/REV/75/99 Rex vs Second Class Magistrate (Leribe District) and Nyatso Lehaliko (unreported)
where it was observed that the learned Magistrate was wrong to have released the vehicle involved therein to the 2nd respondent before the start of a criminal trial notwithstanding the fact that no additional evidence had been heard to determine if the second respondent was such a person as perceived by the statute as may lawfully possess such article. (Italics added)
The Court pointed out to Mr Nteso for the applicant in the instant matter that it would be the height of inconsistency if the Court could say ditto to the claim of his client hardly ten minutes after disobliging a litigant who was in almost exactly similar circumstances.
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It therefore behoves the applicant to satisfy the Court that presided over his criminal trial that he may lawfully possess that vehicle. The police were correct in contending that they could only release it to him if there is a Court Order to that effect. That is exactly what the investigating officer did in Lehaliko above. He bowed to the Subordinate's Court Order to release the vehicle to Lehaliko notwithstanding that he had good grounds for challenging Lehaliko's possession thereof.
Mr Nteso informed Court in argument that the applicant was no longer relying on Annexure "B". This was regarded by this Court as proper.
Miss Mothepu brought to the Courts attention that by mistake the Crown admitted the contents of the applicants paragraph 5, and that the Crown meant to object to contents of paragraphs 5 and 6.
The Courts ruling was that the contents of an affidavit are evidence. An attempt to alter such evidence after it has even been responded to by the other party is not proper and cannot be allowed as it prejudices the other party to the dispute.
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However the overall position as discerned by this Court remains unaffected by this blunder on the part of the Crown.
Consequently the application was refused with costs.
JUDGE
15th November, 1999
For Applicant: Mr Nteso
For Respondents : Miss Mothepu
