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CIV/APN/334/97

IN THE
HIGH COURT OF LESOTHO

In the
Application between:

LEETO
MACHOBANE APPLICANT

and

OFFICER
COMMANDING POLICE BEREA 1ST RESPONDENT

ATTORNEY-GENERAL
2ND RESPONDENT

KANANELO
KHECHANE 3RD RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 6th May day of May
1999

I made
and order that the vehicle in question be released to the Applicant
who was Mr. Fantši's client. It was because "its

detention did not serve any purpose". I also ordered that the
Applicant shall not dispose of the vehicle for a period or thirty

days to enable the Third Respondent, if he so wished, to file
summons. I further ordered that the Third Respondent, Mr. Fosa'a

client, should also pay costs of suit on the principle that costs
follow the result.

I had
earlier, when I took possession of this file, remarked at the stark

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suspiciousness
of an annexure "A" on page 26 and an annexure "B"
on page 27 of the proceedings. These were registration
certificates
and motor vehicle licence and a so called notice of transfer of
ownership in respect of motor vehicle, allegedly having
been
registered in the Republic of Transkei. These two documents purport
to emanate from the Republic of Transkei. Could there
have been that
Republic on the map in 1997? Could this Court on the available
evidence conclude that the documents were irregular
only because they
looked suspiciously obscure? Without a statement from their purported
Road Transport registry office (of the
Republic of Transkei) that
would be unsafe.

There are
so many things that are suspicious about the above two documents. It
has to do with the dates, it has to do with the other
particulars and
the rubber stamp impression. With respect to the second document it
has to do with the fact that when the vehicle
was being sold to one
Moruti Makoloane, even before he was placed in possession of the
vehicle, the vehicle appeared to be transferred
to one Leeto
Machobane who is the Applicant herein. I indicated these grounds of
my suspicion to the Third Respondent's Attorney.
At the same time I
was remarking as to why there was no opposition from the Second
Respondent, the First Respondent, the Attorney
General and the
Officer Commanding Berea police. Based on the resourcefulness of
these Respondents, such opposition that would
come forth would
demonstrably point at the weakness of the documents that I have
spoken about.

I had
felt that it would be proper and useful to this Court if a statement
would be sought from the registering office in the Transkei
who

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would
forward the statement to this Court. It would then be a good basis
for this Court to accept an application for viva voce evidence
if
sought. That was to seek to prove or to seek to persuade the Court to
a conclusion that there was something seriously at fault
with these
two annexures. Without anything more what would be perceived to be my
attitude to these documents would merely be a
very strong suspicion
and nothing more. I found nothing to make me conclude that the
Applicant had no rightful possession of the
vehicle. Nothing could be
seen to remove or militate against the bona fide possession by the
Applicant. Such possession was a basis
for a good claim by the
Applicant See MAKAKOLE vs OFFICER COMMANDING, CID MASERU AND ANOTHER
LAC (1985-1989)207 at 209 D-F. Neither
did it make me to conclude
that that Applicant was the owner of the vehicle. Proof of ownership
would neither be needed for the
claimant to have locus standi for
relief sought by him. See MAKAKOLE case.

On the
second part I had another problem. This problem was that the Third
Respondent alleged that he has himself been sold this
vehicle by one
Matlere Matlere of Ha Seutloali. And that he paid M1 0,000.00 deposit
and then he took possession of the vehicle
from that Matlere. He
annexed the document annexure "KK1" (agreement of sale) to
his answering affidavit. He went on
to say that at the time of the
sale it bore temporary plate numbers E1701). The blue card
(registration certificate) (annesure
"KK2") of this vehicle
was in the name of one Mary Puleng Ketane and the first year of
payment of registration fees is
reflected as 1995. The Respondent
said he asked the said Matlere about the names Mary Puleng Ketane and
he explained (not least
astounding) that she was his ex-wife.

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These
gave me a problem in that I did not have an affidavit from that
Matlere nor one from Mary Puleng Ketane. What was important
was that
the vehicle was not registered in the name of the Third Respondent.

Thirdly,
the chassis and the engine numbers on the vehicle did not tally with
the blue card given to the Third Respondent. On the
contrary they
tallied with the Applicant's documents, annexed to the notice of
motion, that emanated from the Transkei as earlier
recited. It was
suggested to me by Mr. Fosa that the numbers to on the vehicle
accorded with those on the papers of the Applicant
could only suggest
that there was unlawful tampering by the Applicant. I thought that it
was difficult for me to accept this version
and to conclude so in the
absence of more facts or more information.

Perhaps
if Mr. Fosa had been prepared to and pointed out those features which
he said would show that the vehicle was his client's
then I would
have just been persuaded that there had been tampering. But he just
ran short of spelling out what those features
were. And he used words
to the effect that he was reluctant to do so because if the police
had got information about those features
the police would have
tempered with the vehicle even more. I refused to accept that this
attitude (which did not enable the Court
to do justice) was helpful.
Rather I thought it amounted to the Third Respondent refusing to be
candid to this Court. So that this
aspect of the numbers on the
vehicle tallying with the papers possessed by the Applicant just
persuaded me that the Applicant made
a strong case for possession of
the vehicle in his hands as against ownership. I was neither
persuaded that the Third Respondent
was able to prove ownership in
the

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circumstances
of the case.

The story
by the Respondent about the disappearance of the vehicle from him
bordered on the comical. The vehicle as he said was
lent to his
cousin. His cousin then later said he sold the car to one Motlatsi
Makoioane. The latter is the man who the Applicant
says got paper
from the Transkei. Incidentally this Moruti Makoioane is the man who
all along the Applicant has referred to as
being the seller of the
vehicle. He swore to an affidavit that he bought the vehicle from one
Delio Nqcobondwana.

It might
perhaps be that the vehicle was stolen from the Third Respondent. It
might perhaps be that this Applicant himself got the
vehicle from a
thief who got it from a legitimate seller or something of that kind.
These all possible inferences are suggested
by the fact that neither
the Applicant held valid Lesotho registration papers. As matters
stood, despite the fact that the numbers
on the vehicle appeared to
tally with those of the Applicant and that none of the parties appear
to be possessed of the registration
papers. I became reluctant to
decide the question of ownership. And in fact there would have been
no basis for that in the absence
of a clear counter-application from
the Third Respondent. And indeed this conclusion was called for in
the absence of further evidence
that would stand the test of
ownership. On the papers before me I thought that it was fair and
correct that the Respondent should
be advised to opt out for filing
an action for ownership or damages or whatever.

There
were certain further aspects which were quite worrisome judging from
the paragraph 9 of the Third Respondent's affidavits.
Firstly,

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the
Respondent lend the vehicle to his cousin's child, one Bokang Lebona
that Bokang Lebona was going about selling a vehicle for
about
M8,000.00 which the Respondent did not buy but promised to look for
buyers. The Respondent gave instruction that the vehicle
must be left
at his brother's place. The vehicle was not left at his brother's
place. This the Respondent discovered after inquiry.
He also went in
search of the vehicle from Bokang's companion, one Thabang. There was
a statement from that Thabang that the vehicle
could have gone to be
repaired for a faulty exhaust pipe.

On the
following day Respondent went to Thabang's place. Thabang told him
"point blank" that he (Thabang) and Bokang had
sold a
vehicle for M5,000.00 to one Makoloane and this was in terms of
agreement between the Respondent (as Thabang alleged) and
Bokang.
These are the said aspects which needed a lot of ventilation in order
to resolve the main problem which remained. That
was the problem of
the ownership of the vehicle which stood contested by the Applicant
and Third Respondent. This contest may presumably
be the reason why
the first and Second Respondent were not opposing the application. If
that was the case I would hasten to say
that it was against public
policy and it was a dereliction of duty on the part of those
Respondents who resources could have facilitated
the just decision of
the matter. They (the State) normally have the onus to show that the
Applicant did not legally possess the
vehicle. See BOHLOK.O vs
COMMISSIONER OF POLICE AND ANOTHER 1991-1996(1)LLR67 at 70

I did not
find therefore that there was anything that stood in the way

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of the
Applicant being given the possession of the vehicle moreso because
the police and the other Respondents, except the Third
Respondent who
was later joined, did not oppose. I made the order merely for the
Applicant to be given possession of the vehicle.
My understanding was
that the question of proof of ownership stood to be undertaken in an
action. Criminal prosecution would surely
not be closed out.

I made
this order as it were even against the Third Respondent as I
indicated earlier even though I had had my own reservations.
But
these reservations or strong suspicions could not stand as
conclusions by a civil court even on a balance of probabilities.

Hence the order that I made as earlier stated. That the possession of
the vehicle be given back to the Applicant.

T.
MONAPATHI

JUDGE

For the
Applicant : Mr. Fantši

For the
3rd Respondent: Mr. Fosa