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
applicant
there 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 or
trailer purchased from
outside Lesotho
that such obliteration or tampering
was
done by a lawful authority of the place
where the
vehicle was purchased;

that he did not know or could not have
known that the number
had been tampered
with;

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

-5-

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.

Mercurial Victory CR7 Low