CIV/A/5/84

IN THE HIGH COURT OF LESOTHO

In the Appeal of :

EDWARD LEPHATSOE Appellant

V

THE OFFICER COMMANDING

L.M.P,
OUTHING Respondent

J U D G M E N T

Delivered by the Hon. Mr Justice B.K. Molai on the
27th day of August,, 1986.

This appeal is from the Subordinate Court of Outhing.

It appears from the record of proceedings that on 25th
December 1983 the appellant (hereinafter called the applicant) filed
with the
clerk of the magistrate's court. Outhing, a notice of motion
in which he prayed for an order, against the Respondent, in the
following
terms :

"(a) that motor vehicle registration number DZB
602T be restored to the custody of the applicant forthwith;

(b) that the said motor vehicle number DZB 602T be not
removed from Lesotho for a period of (six) 6 months should the
Respondent require
it in connection with any prosecution;

(/c) that Respondent pays the costs of this application
should he oppose it."

The Respondent intimated his intention to oppose the
application' The founding and the answering affidavits were filed by
the parties.
No replying affidavit was, however, filed by the
applicant.

/Briefly

—2—

Briefly the facts that emerged from the affidavits were
that some time in 1983 the police found the vehicle, the subject
matter of
this case, in the possession of one Sipho Mebusa who could
not produce, on demand, any document covering the vehicle nor could
he
give a satisfactory explanation as to how he had acquired
possession thereof. The vehicle was seized and retained by the
police
from Sipho Mabusa.

In their investigations,the police found that the
vehicle, in fact, belonged to one Peter Crnecuis Buitendach of Kibler
Park Johannesburg
in the Republic of South Africa from where it had
been stolen on 31st January, 1983. Sipho Mabusa was then criminally
charged with
theft of the vehicle under CR. 62/83. However, he was
subsequently released on bail. Copies of both the charge sheet and
the bail
forms were annexed.

Whilst the Criminal charge against Sipho Mabusa was
ponding the applicant brought the application for an order as
aforesaid on the
ground that the vehicle belonged to him and had
always been in his possession. The trial magistrate dismissed the
application but
made no order as to costs. It was against the
magistrate's order of no costs that the Respondent appealed to this
Court on the ground
that it was a misdirection on the part of the
magistrate not to have awarded him the costs. The applicant also
cross-appealed on
the grounds that the Respondent had failed to
establish either legal possession or ownership and viva voce
evidence should have been ordered by the magistrate.

On the facts, there can be no doubt that Sipho Mabusa

/was

-3-

was criminally charged with theft of the vehicle, the
subject matter of this case, which was naturally used as exhibit in
CR 62/83.
That being so, the Respondent no longer had the right to
release the vehicle. That was the matter for the decision of the
trial magistrate
at the conclusion of the criminal case which had
been preferred against Sipho Mobusa - See 8. 56 of the Criminal
Procedure and Evidence
Act, 1981.

On the first ground of cross-appeal it is to be borne in
mind that it was the applicant and not the Respondent who claimed
legal possession
and ownership of the vehicle. In his answering
affidavit the Respondent disputed that claim and averred that the
vehicle had been
seized from the possession of Sipho Mabusa who was
subsequently charged with its theft as indicated by the annexed
charge sheet.
No replying affidavit was filed by the applicant to
gainsay the avernment of the Respondent on this point.

Granted that the question of legal possession and/ or
ownership was raised by him the applicant, and not the Respondent,
bore the
onus of proof on the well known principle that he who
avers bears the onus.

As regards the second ground of cross-appeal viz. that
the trial magistrate should have ordered viva voce evidence to
be adduced, it seems to me that depended on whether or not a fair
decision could be reached on the evidence established
by the
affidavits. It has already been pointed out that the release of the
vehicle which was used as exhibit in a pending criminal
case was a
matter for the decision of the trial magistrate at the conclusion of
that criminal case in terms of the

/provisions

—4-

provisions of S. 56 of the Criminal Procedure and
Evidence Act, supra. It was therefore unnecessary to bring the
application before the conclusion of that Criminal case. In that
event the trial magistrate
could have no difficulty in reaching a
fair decision by dismissing, as he did, the application which was
clearly brought before the
Court prematurely.

Coming now to Respondent's ground of appeal that the
trial magistrate misdirected himself by not awarding him costs, it is
trite law
that the question of costs is a matter within the
discretion of the Court. That discretion has, however, to be
judicial i.e. it
must be based on some reasonable grounds. In his
written reply to the grounds of appeal the trial magistrate had this
to say on the
issue : "It was not necessary to award costs as
applicant still had a right to make another application if he has
enough grounds."

The general rule is that costs follow the event. The
fact that the applicant was, at some later stage, likely to approach
the court
with another application could not, in my opinion, hove
established a reasonable ground on which to deny costs to a
successful party
in a case with which the Court was seized I am
convinced that the magistrate's denial to award coats in the
circumstances of this
case was unreasonable departure from the
general rule and for that reason an irregularity.

In the premises I would allow the appeal and dismiss

/the

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the cross-appeal with costs to the Respondent in both
the magistrate and the High Court.

JUDGE

For Appellant : Mr. Mafisa
For Respondent : Mr.
Matlhare.