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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