CIV/A/10/84
IN THE HIGH COURT OF LESOTHO In the Appeal of :
OFFICER COMMANDING - QUTHING 1st Appellant SOLICITOR-GENERAL 2nd Appellant
V
GEORGE MATLOTLO Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 29th day of August, 1986.
This appeal is from the Subordinate Court of Quthing.
It appears from the record of proceedings that on 1st December, 1983 the Respondent (hereinafter called Applicant) moved an ex-parte application and obtained against the 1st and 2nd appellants (hereinafter called Respondents) an interim order framed in the following terms :
"That a Rule nisi do hereby issue calling upon the Respondents to show cause, if any, on January 6th, 1984 at 9.30 a.m. in the forenoon or so soon thereafter as the matter may be heard by this Honourable Court why :
1.(a) Respondents shall not forthwith release to applicant a certain white Datsun E 20 registration number G0615 the property of the applicant.
Costs of suit. For further and/alternative relief.
That Rule 1.(a) above operates with immediate effect."
/It is
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it Is not clear when the interim order was served on the Respondents who intimated their intention to oppose its confirmation. The order was, however, confirmed with costs on the return day, 6th January, 1984, and it is against this decision that the Respondents have appealed to the high Court.
The facts that emerge from the affidavits are briefly that in December 1982 the applicant bought a certain yellow and white Datsun E 20 registration G0424 from one Stephen Letsipa. It was a 10 seater with wipers for the hindscreen. The vehicle was, on 31st December, 1982, registered in the name of the applicant after the C.I.D. police had cleared it against its papers. After it had been delivered to him the applicant re-sprayed the vehicle white and took it to the C.I.D. police who were satisfied that it was still the same vehicle that he had bought from Stephen Letsipa.
According to the applicant he was using the vehicle
in his taxi business when on 23rd November, 1983 the C.I.D. police unlawfully seized it. No withstanding demand the police refused to release the vehicle. Wherefor he applied for an order as aforesaid.
The answering affidavits were filed on behalf of the Respondents by W/0 Phineas Moahloli, D/W/0 Ntaitsane and Stephen Letsipa, In his affidavit W/0 Moahloli confirmed that the police did find a white Datsun E 20 in the possession of the applicant and seized it. He deposed that while the vehicle which had been bought
/by the
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by the applicant from Stephen Letsipa was a 10 seater
with registration number 00424 the one seized by the
police from the applicant was a 15 seater with
registration number 00615 end its identification marks,-
i.e. engine and chassis numbers, appeared to have been
tampered with. The seisure was to facilitate further
investigations and it could not,in the circumstances,
have been unlawful. Indeed, a Criminal charge had already
been preferred against the applicant (a charge sheet
CR. 395/83 was annexed). If it were released to the applicantthere was therefore a real danger of the vehicle being
involved in an accident or disappearing altogether with
the resultant frustration of the administration of
justice or the evasion of Court proceedings by the applicant.
The avernment of W/0 Moahloli that the vehicle seized from the applicant was not the one that the latter had bought from Stephen Letsipa was confirmed by Stephen Letsipa himself who deposed that, on the request of the police, he inspected vehicle G0615 on 24th November, 1983 and found that it was definitely not the one he had sold to the applicant.
D/W/0 Ntaitsane, an expert in the examination of engines and chassis of motor vehicles, stated that in November 1983 he subjected vehicle GO615 to an "acid test" and the results revealed that its engine and chassis numbers had been tampered with.
On the facts disclosed by the affidavits it seems to me the Respondents had, at least on a balance of probabilities, proved that the vehicle seized from the possession of the applicant had its engine and chassis
/numbers
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numbers tampered with. That being so, the applicant had apparently contravened the provisions of S. 15 (1) of the Road Traffic Act No. 8 of 1981. The section reads :
"A person driving, or found in possession of a motor vehicle or trailer the chassis or engine number or other identification mark of which has been obliterated or tampered with otherwise than by a registering authority under section 9 is, unless he proves to the Court that :-
in the case of a motor vehicle ortrailer purchased from outside Lesothothat such obliteration or tampering wasdone by a lawful authority of the placewhere the vehicle was purchased;
that he did not know or could not haveknown that the number had been tamperedwith;
Guilty of an offence and liable to M2000
or 2 years' imprisonment."
I find nothing unreasonable in the Respondents' submission that if the vehicle were to be released to him, in the circumstances, there was a risk of the applicant causing the vehicle to disappear and thus frustrating the administration of justice or evading court proceedings. That granted, there is no doubt in my mind that the Respondents were empowered to seize and impound the vehicle in terms of the Road Traffic Act, supra. of which S. 110(1) (a) provides :
"110(1) In addition to the powers and duties referred to elsewhere in this Act a police officer may -
(a) seize and impound any motor vehicle if he has reasonable grounds to suspect that the continuation of the use of such vehicle would cause danger to other road users or that the owner or driver of such vehicle
/would
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would otherwise evade Court proceedings or payment of a spot fine;
(My underlining).
From the foregoing it is obvious that I take the view that in the circumstances, the Respondents were entitled to impound the vehicle and the magistrate should have discharged the rule. The appeal ought to succeed and it is accordingly allowed with costs both in the magistrate and the High Court.
JUDGE
29th August, 1986.
For Appellants : Mr. Mafisa For Respondent : Mr. Jobodwana.