IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) 26/2011
In the matter between:
SEENYANE TAKALIMANE APPELLANT
LITEBOHO SEROBANYANE RESPONDENT
CORAM: SCOTT, JA
HEARD : 13 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
Order for the release of motor vehicle suspected of having been stolen. Invalidity of such an order if made before conclusion of criminal proceedings. Police sergeant refusing to release such vehicle – guilty of contempt notwithstanding invalidity of order.
 The appellant is a member of the CID and is stationed at Leribe. He holds the rank of sergeant. The respondent is the accused in criminal proceedings pending in the subordinate court, Leribe, in which he is charged with stealing a Volkswagen Golf motor car. His counsel has recently written to the Registrar advising that he does not contest the appeal.
 The appeal arises from an application brought by the appellant in the High Court in which he sought the review and setting aside of an order made by the Magistrate, Leribe, committing the appellant to prison for contempt and for the review and setting aside of an order directing that the Volkswagen Golf motor car, alleged to have been stolen by the respondent, be released into the custody of the respondent. The latter order is the order in respect of which the appellant was held to be in contempt. The application was opposed by the respondent who was cited as the first respondent in the court below. The other respondents, including the magistrate, took no part in the proceedings. On 14 May 2010 Nomngcongo J granted an order in the following terms:
“The learned magistrate be and is ordered to issue a warrant for the arrest of the applicant so that he should show cause why he cannot be committed to prison for contempt of court which by his own admission he committed by refusing to comply.”
To date no written judgment has been forthcoming. I accordingly took the liberty of calling for the High Court file. I found its contents to include a hand-written note of one and a half pages in point form, presumably made for the purpose of a judgment. It was neither signed nor dated. We were informed by counsel for the appellant that following argument by both sides the judge a quo had given a brief ex tempore judgment which was not recorded. He said that in the course of his judgment the judge had also dismissed the prayer for the review and setting aside of the order directing the motor car to be released and had ordered the appellant to pay the costs of suit. In addition, counsel informed us that he did not find the hand written note in the file when he prepared the appeal record.
 In May 2011 the judge granted leave to appeal in terms of section 8 (2), read with section 17, of the Court of Appeal Act, 10 of 1978. He therefore knew of the appeal. None the less, there is no written judgment. It goes without saying that the absence of a written judgment not only causes considerable inconvenience for this Court which is obliged to hear the appeal without knowing the reasons for which the court a quo came to the conclusion it did, but it is similarly prejudicial to the parties who are obliged to argue the appeal without those reasons. In the present case, more than a year has elapsed since the order was given and in the circumstances it is undesirable to postpone the appeal so as to afford the judge a quo more time to deliver a written judgment. In the result we have been obliged to rely on the brief handwritten note found in the file and on what we are told by counsel.
 Before considering the issues raised in the appeal it is necessary to set out as briefly as the circumstances permit the events leading up to the application in the court below.
 On 2 April 2009, when the respondent, who had previously been released on bail, appeared in the subordinate court, Leribe, for the case against him to be remanded, his counsel applied for an order directing that the Golf motor car, which the respondent was alleged to have stolen, be released into his custody pending the finalization of the criminal case against him. It appears from the magistrate’s hand-written notes that the crown prosecutor advised her that he had no objection and that he had spoken to someone in the criminal section of the office who in turn had spoken to a detective trooper Mokebisa who likewise had no objection. On the strength of this the magistrate granted the order for the release of the vehicle “into the custody and safekeeping” of the respondent subject to certain conditions. The order was not directed at any particular person or persons. It bore a criminal case number and cited the parties as Rex and Liteboho Serobanyane as the accused (respondent in the appeal).
 The following day, 3 April 2009, the order was served by the Messenger of the Court on the appellant who queried the “authenticity” of the order and refused to release the motor car. The appellant described himself in his founding affidavit as “the leading investigating officer in the case”. This was denied by the respondent who said that trooper Mokebisa was the investigating officer. But there can be no reason to doubt the appellant’s assertion. He was Mokebisa’s senior, the order was served on him and it was he who refused to release the vehicle.
 On 12 June 2009 the same magistrate, Ms Mahamo, granted a rule nisi at the instance of the respondent calling on the appellant (as well as the Officer Commanding Hlotse Police, the Commissioner of Police and the Director of Public Prosecutions) to show cause why he should not be committed to prison for contempt of the order granted on 2 April 2009. The rule was returnable on 26 June 2009. It was served on the appellant on 23 June 2009. However, on 26 June 2009 Barloworld Motor (Pty) Ltd, trading as Tokai Motors, sought and obtained a rule nisi calling on the respondent and other named parties to show cause why the execution of the order for the release of the vehicle and the contempt proceedings should not be stayed pending the finalization of an application for the rescission of the order for the release of the vehicle. Presumably Barloworld were, or claimed to be, the owners of the Golf motor car in question. According to the charge sheet the complainant was “Suiney Nicollet” who was stated to be the person who was in possession of the vehicle when it was stolen.
 On 17 September 2009, Barloworld’s application, which was opposed by the respondent, was dismissed with costs. The only indication of why it was dismissed is a sentence in the order reading: “The point of law of jurisdiction be and is hereby upheld.” With this application out of the way, the respondent on 23 September 2009 sought an order committing the appellant to prison for contempt “by failing to comply with an order of court granted on 2 April 2009.” The order was granted by the same magistrate, Ms. Mahamo, and was served on the appellant the following day. This in turn prompted the review proceedings in the High Court giving rise to the present appeal. On 14 October Chaka-Makhooane J granted an order staying the appellant’s committal to prison pending finalization of review proceedings.
 It is convenient to deal first with the release order granted by the magistrate on 2 April 2009. It was clearly granted per incuriam. Section 14 (3), read with section 14 (1) of the Motor Vehicle Theft Act, 13 of 2000, expressly prohibits a court from ordering the release of a motor vehicle that has been seized by any police officer in the belief that it is a stolen vehicle “until the conclusion of any such prosecution, and unless, within 6 months of the date of such conclusion, or the date of the seizure of the vehicle whichever is the later, an application is made for such release supported by satisfactory documentary proof of lawful ownership or lawful possession”. In his answering affidavit the respondent contended that section 14 of the Act did not apply to his case as he was not charged under that Act. There is no merit in this contention. It is quite clear from section 14 (1) that the prohibition in section 14 (3) applies to any motor vehicle seized by any police officer who believes on reasonable grounds that the vehicle is a stolen vehicle. In other words, the prohibition is applicable regardless of whether the charge is framed in terms of the Act or at common law. It is a great pity that the provisions of s14 of the Motor Vehicle Theft Act were not brought to the attention of the magistrate. Had this been done, the plethora of applications in the subordinate court, the review proceedings in the High Court and this appeal could all have been avoided.
 It appears from the appellant’s grounds of appeal and from the note found in the High Court file that the court a quo held that the appellant lacked locus standi to seek to review the order of the magistrate for the release of the motor car, or to put it more accurately, that the appellant’s interest in the review and setting aside of the order for the release of the motor car was insufficient to entitle him to institute proceedings for that relief. The appellant faced the prospect of imprisonment for contempt arising from his failure to obey that very order. It is no doubt true that save in exceptional cases a person may not refuse to obey a court order because it has been wrongly made. But at the very least the validity of the order would be a consideration when it comes to the sanction for failing to obey it. The present case is an illustration of the point. The contempt order granted on 23 September 2009 commits the appellant to prison for an indefinite period. No doubt the object of the Order was to keep the appellant in prison until he purged his contempt by releasing the vehicle. But if the release order was illegally made, it strikes me as bizarre to hold that he has no standing to challenge its legality. The result would be to keep him in prison until he obeys an order while at the same time precluding him from challenging its legality.
 It follows that in my view the appellant was entitled to an order reviewing and setting aside the order made by the Magistrate, Leribe, on 2 April 2009 releasing a Volkswagen Golf motor car into the custody of the respondent. I turn now to the question of the appellant’s contempt.
 As I have previously indicated, a person may not, save in exceptional circumstances, refuse to obey a court order because it has been wrongly made. If this were not the case, as observed by Caney J in S v Zungo 1966 (1) SA 268 (N) at 271 E; “……the conduct of legal proceedings would become chaotic”. A person directed to obey an order supposed invalid must as a general rule first obey it and thereafter seek his or her remedy elsewhere, whether by way of appeal or review. In S v Mushonga 1994 (2) SACR 782 (ZS) at 787 g-i Gubbay CJ stated the exception to the rule as follows:
“The exception to the general proposition is where blind compliance with an obviously invalid order would itself tend to weaken respect for the administration of justice. Suppose, for instance, that a judicial officer had ordered a person to do something quite absurd and blatantly in violation of his legal rights; his disobedience could not be regarded as contemptuous.”
In this Court counsel sought to rely on this dictum to justify the appellant’s refusal to obey the order of 2 April 2009. I do not think the present case falls within the exception formulated by Gubbay CJ. In Makapan v Khope 1923 AD 551 at 556–557 Solomon JA said:
“It is conceivable no doubt that a judge with full knowledge of the fact that he had no jurisdiction to hear a case might persist in doing so, but in that event he would be acting mala fide, and then different considerations would arise. But once granted that a court has been duly constituted, and that the judge on the bench bona fide believes he has jurisdiction to try the case, it is in my opinion immaterial whether in fact he has such jurisdiction or not. In either case he has the power to punish anyone whether he be a party to the case or not, who misbehaves himself in facie curiae.”
 The order granted by the magistrate on 2 April 2009, as I have found, was an invalid order. There can be no doubt, however, that the magistrate bona fide believed that she was entitled to make the order she did. Not only did the respondent’s counsel apply for the order but his application was not opposed by the crown prosecutor. Neither party drew the provisions of the Motor Vehicle Theft Act to the attention of the magistrate. Nor could the order, although invalid, be described as “quite absurd” or “obviously invalid”. Indeed, in his opposing affidavit the respondent sought to argue that the provisions of section 14 applied only to cases where the accused was charged with the theft of a motor vehicle in terms of the Act.
 The order of 2 April 2009 for the release of the vehicle admittedly did not cite the appellant as a respondent. But its import was clear enough. None the less, when the order was served on the appellant he refused to release the vehicle. Subsequently on 23 September 2009 an order in which he was cited as a respondent was served on him calling upon him to show cause on 26 June 2009 why he should not be committed to prison for contempt. He says that he attended court on the latter date but the magistrate was not available. Thereafter he appears simply to have ignored the order until the order for his committal dated 23 September 2009 was served on him. By that time Barloworld’s application to stay the contempt proceedings had been set aside. It is clear that the appellant had the requisite mens rea and that he was in contempt of the order of 2 April 2009.
 The court a quo, correctly in my view, set aside the magistrate’s order committing the appellant to prison and substituted an order directing the appellant to show cause why he should not be committed to prison for contempt. (The order is quoted in paragraph 2 above.) Given the somewhat unusual circumstances of the case, it strikes me as unnecessary to have the appellant arrested in pursuance of a warrant of arrest and brought to court to explain his contempt. In my view, he should be warned to appear for this purpose and only in the event of his failure to do so should a warrant of arrest be issued. A copy of this judgment should also be given to the magistrate concerned.
 In the result, the following order is made:
(1) The appeal is upheld with costs;
(2) The order of the court a quo is set aside and the following substituted in its stead:
“(a) The order of the Magistrate, Leribe, dated 2 April 2009, directing that a Volkswagen Golf motor car be released into the custody of the first respondent, Liteboho Serobanyane, is reviewed and set aside;
(b) The applicant, Seenyane Takalimane, is to be warned to appear on a date to be arranged before the Magistrate who granted the order referred to in paragraph (a) above to show cause why he should not be committed to prison for contempt of the said order. In the event of his failure to appear on the date so arranged a warrant for his arrest is to be issued;
(c) The first respondent is ordered to pay the applicant’s costs of suit.”
JUSTICE OF APPEAL
For the Appellant : Adv T.R. Mpaka
Respondent : Adv L.E. Molapo
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law