CIV/APN/209/86 IN THE HIGH COURT OF
the matter of:
BOKANG SEGOETE Applicant v
THE OFFICER COMMANDING
POLICE (MORWA) 1st Respondent THE ATTORNEY
GENERAL 2nd Respondent
Delivered by the Honourable Acting Mr. Justice
M.L. Lehohla on the 17th day of February. 1987
Applicant is before Court on Notice of Motion served
last year on Respondents 1 and 2 on July 1st and 2nd respectively.
stipulated that if Respondents did not oppose this
matter, it would be set down for hearing on the 14th of that month.
was opposed and after several postponements, it was
finally argued before me on 6-2-1987.
Applicant is seeking an order in the following terms:
1. Directing the Respondents to releaseApplicant's
Golf GTS car, 1981 model,Engine Number FRO:94341, Chassis
Number178 0627367 and Registration Number
2. Directing the Respondents to pay NineThousand
Five Hundred Maloti (M9,500-00)in the event that Respondents are
unableto release the said Golf GTS car;
Directing the Respondents to pay thecosts of this
Granting Applicant further or alternativerelief.
In a supporting Affidavit, Applicant deposes that around
January, 1983, the Morija Police, amongst whom he knew one TSEKA,
his lawfully acquired vehicle in question. Applicant has
attached a fair copy of its registration certificate marked "A".
He further avers that in doing so it was in pursuance of their
official duty owed to the Second Respondent. The rest of the
are to the effect that the said Police so acted
pursuant to their contention that the said car was
property. They kept it for purposes of presenting it as
exhibit in criminal proceedings preferred against
Applicant. The criminal case was either struck off the Roll or
Applicant twice, to wit, on 18th March and
29th November, 1983. On each occasion Applicant requested his
attorneys to demand release
of this car to him but the case would be
reinstated to afford the Attorney General a basis for saying the car
could not be released
as it was intended for use as an exhibit in a
pending criminal case against Applicant.
Applicant swears that he remembers an occasion when the
Crown actually led evidence in the criminal proceedings against him
not cross examined because
when it was his attorney's turn to do so, the witness
not prepared was said to be/to attend Court for
On inquiring from the Public Prosecutor about the car,
the deponent was told and he had believed that the investigating
had made a terrible mistake to release and or give away
Applicant's car to a white man from South Africa.
Having given the approximate market value of the car,
Applicant avers that he would be content to receive M9,500 from
their ability to restore or release the car to
him. Finally, he submits, on oath, that the officers of 1st
Respondent had no cause
or legal basis to seize his car and
eventually give it away to someone without Applicant's authority or
Court's authority and thus
imputes malice to their act.
In answering Affidavits the 1st deponent Lehlohonolo
Tseka deposes that he is the investigating officer concerned in the
in which this car constitutes the subject matter. He
contends that he seized this car because it neither had any
or identification marks, be they temporary
numbers or otherwise. On closer inspection, he noticed that it had a
clearance certificate disc numbered 3A029893 on which was
reflected South African registration numbers OA 2806. The car was
seized on 17-12-82.
Having relied on information from the second deponent,
one Khotsang Lachesa, who works for the Ministry of Transport and
where, inter alia, his office deals with registration
of motor vehicles in Lesotho, and during
the course of his investigations first deponent formed
the opinion that the said car had been stolen. Subsequent information
to the car with OA 2806 registration numbers had been stolen
on 1-11-82 at Bethlehem.
On 22-12-82 when Applicant came to 1st deponent's office
the latter asked him to produce ther registration certificate of this
but Applicant failed to do so.
Then on 14-1-83 a certain Thys Kemp, from Bethlehem,
came and identified it as his. First deponent further avers that the
struck from the Roll because the complainant was no longer
prepared to come to give evidence. Consequently, he released the car
Kemp basing himself on the provisions of Section 52(b) of the
Criminal Procedure and Evidence Act 1981 and says "the Applicant
was there when I did this and he did not object."
Basing himself on what he perceived to be a
"satisfactory registration certificate" held by Kemp and
the authority derived
from the above cited provisions of the
Criminal. Procedure and Evidence Act, 1st deponent avers that his act
was not unlawful or
malicious and consequently states, therefore,
that the return of the vehicle to complainant cannot render the
Government or any of
its servants liable to Applicant for either
restoration of the said vehicle or damages resulting from failure to
restorer it to him.
The second deponent Lechesa averred that he had
seen the copy of the registration certificate attached
by Applicant to his founding Affidavit and declared it to be a
(a) Following a theft which occurred around 25th
August, 1982, the certificate in question T.C. 3 No.3897 together
with others disappeared
from printing whilst still blank and never
reached his office. Deponent says he is able to identify this
particular certificate by
its number. Furthermore, it was on account
of that theft that it became necessary for his office to report it to
of Police in writing, wherein was listed the numbers
of the missing books or certificates of which T.C. 3 No.3897
constituted a Group
Series known as Group 3. See Annexure "A"
to this deponent's Affidavit.
A Savingram from Traffic Commissioner's office to
Commissioner of Police wherein listed 12th under Column 3 appears the
The Savingram is dated 7th September, 1982,
Deponent 2 further says that according to his records,
the current owner of the motor vehicle allotted the registration
6792 is one M.D. FERREIRA and not the Applicant.
Annexure"B" to which 2nd deponent refers me shows, and this
is in keeping
with his averment, that this number was previously
allotted to BENCO INTERNATIONAL registered in Maseru.
In accordance with experience gained, no doubt, from
handling and processing of registration documents, 2nd deponent has
Court's attention to inconsistencies which would, if
believed, tend to give a lie to Applicant's
He says while Annexure "A" is for motor
vehicles registered in Maseru, Applicant has given the impression
that his clearance
certificate disc bore the number 2087; yet
the clearance certificate bearing this number was transferred
together with others to Qacha's Nek Sub-Accountancy on 4-12-80.
this regard i . am referred to Annexure "C" which is a
photocopy of some document that is so blurred and smudgy that
hardly see anything on it.
However, this deponent contends that if Applicant had in
fact registered his motor vehicle in Maseru, the first clearance
would have had "to come from the district where the
motor vehicle was being registered".
Deponent implies that this vehicle was not registered
in Maseru. Ad C of this replying affidavit, Applicant
says his vehicle was registered in Maseru.
In paragraph (d), Lechesa draws attention to the fact
that contrary to the apparent implication from Applicant's Annaxure
that he registered his motor vehicle in 1981 in terms
of Road Traffic Act 1981, as a matter of fact motor vehicles were not
in terms of that Act in 1981 because the Act had not yet
been in force. He concludes by pointing out that his office could not
given him the certificate that he is now exhibiting to the Court
for it was simply not there and submits before Court Annexure "D",
a sample of registration certificates which were issued in 1981.
Put side by side for comparison, the Registration
certificates though generally similar do have distinctive marks.
Certificate D is
syled T.C.4 and bears the words denoting the law
under which it was issued namely "Road Traffic and Transport
Order, 1970, Section
12(1) and the mark denoting the currency for
payment of Registration fee is R for Rand, whereas Certificate A is
styled T.C.3 issued
in terms of "Road Traffic Act 1981 (Section
8). The "Notes" section of the two differs as to content
and size of paragraphs.
In his replying Affidavits, Applicant consistently to a
large measure, pleads no knowledge of contents of Respondents'
puts Respondents to proof thereof.
Regarding 2nd deponent's Affidavit, Applicant in his
reply ad (a) avers that he does not work in any segment of
and consequently does not know procedures adopted
there ana is also quick to show that Lechesa has no first hand
knowledge of the
alleged theft of registration certificates therefore
his averment should be struck out of the record on grounds of being
I should point out that even though his reference to the
theft at Government Printers is hearsay, somehow the alleged act
Lechesa's office to take certain measures which he is
competent to refer the Court to, namely, that his office took the
initiative to report to the police setting out the
of which numbers they were required to be on the look
Furthermore ad (b) Applicant states that there is no
that the registration number A 6792 belongs to M.D.
FERREIRA yet in Annaxure "B" Respondent has shown in the
"Current Registered owner" names and addresses
in sequence of possible owners to whom the heading therein refers.
Ferreira of Postal Address: Box 500, , Maseru, is listed
next after BENCO International of Postal Address: Box 1825, Maseru,
by two blank areas for possible if any current registered
owners. From this format, it is not difficult to notice that the
addresses is the current owner because even the dates
of fist registration are in chronological order. The first refers to
while the next refers to 23-5-85.
It becomes therefore a matter of practical
impossibilitythat the Registration Number A 6792 currently
allottedto Ferreira can at once be said to belong to Applicantor
Applicant has not been able to convincingly say why
deponent 1's suspicion could not be well-founded when acting on that
based on the fact that the motor vehicle did not bear any
registration numbers first deponent was attracted to the vehicle only
be confronted with another strange feature, namely, the existence
of clearance certificate bearing Registration Numbers OA 2806.
There would seem to be no good reason why deponent I
would not form an opinion that Kemp's registration certificate was
if it corresponded in its particulars with, among other
things, the clearance
certificate mentioned above.
Another matter that is stranga, regard being had to the
type of remedy Applicant contemplated namely a spoliation order, is
should wait ana do nothing from November 1983 (when it became
certain to him that his car had been disposed of) until July, 1986,
when he sought relief from this Court. It is not characteristic of a
man who has been despoiled to wait for close to three years
seeking remedy in respect of the alleged wrong. By its nature a
spoliation order is invoked to afford an immediate relief
wrong immediately suffered or while it begins to be suffered. The
fact that he waited all this long gives credence to the
that he did not regard himself as being dispoiled because he
acknowledged that Tseka was acting property.
Tseka claims that he seized the vehicle basing himself
on Suction 52(b) of the C.P. & E. supra.
It is clear that when he seized it he was acting within
the law. That Section further says
"A police may, if the article
is stolen property or property suspectedto be
stolen, with the consent of theperson" from whom it
was seized, deliverthe article to the person from whom, inthe
opinion of such policeman, sucharticle was stolen, and shall warn
suchperson to hold such article available forproduction at
any resultant criminalproceedings, if required to do so "
Although it may seem very high-handed of a policeman to
dispose of an article pursuant to the above Section while a trial
to which such an article is an exhibit is going on the law
does not forbid him to do so. This appears to me to be the crux of
matter to be evaluated when trying to determine whether in acting
as Tseka did, a policeman acts outside the law. Surely the law
empower a man to do a certain act on the one hand and find him guilty
on the other hand of having breached the law when acting
accordance with what that law says he may do if in his opinion
it is right to do so.
The other matters set out in this section are too
dependent on contingencies hence need not be considered in detail.
if the strict letter of this Section is followed, a
policeman who releases an article contemplated by the Section without
the consent of the accused is breaching the terms of this
Section but such a breach is cured immediately the article is
available at the resultant criminal proceedings although the
Section does not state what penalty a policeman in such
is to suffer for failure to seek the consent of the
accused. Another matter of contingency in this Section is the
having warned the person to whom the article is
released and in the event that such person does not render the
to Court for purposes of the criminal proceedings
can the policeman be held responsible for such person's
failure? It seems to me that this should be given a negative reply.
It is significant that Applicant ad 6 of his Heads of
Argument makes much of the fact that corruption existed in 2nd
consequent upon which many incumbents "were
axed - a factor known to the whole world". Applicant does not
say when this
axing took place in relation to his lodgment of this
application on 14-7-86. in this regard, Applicant seems to be blind
to the fact
that he is lending a handle to a possible criticism that
he was biding his time all this while so as to take a chance and
claim once such axing took place.
Although when made laws appear to be crude, it is,
however, the function of judicial officer in interpret them in such a
they accord with one another. It would, therefore, be
undesirable to interpret provisions of Section 52(b) supra in such a
to put a policeman empowered to exercise his discretion in
implementing it in peril of facing a spoliation order. Much as Mr.
submission that because of risks involved in handing over
an article to a non-resident of Lesotho is plausible, the wording of
enabling clause is not confined to Lesotho because it also refers
to property thought by the policeman to belong to someone from
it was stolen or suspected to have been stolen "whether within
Lesotho or elsewhere". In the absence of any indication
contrary, the word elsewhere should encompass the
Republic of South Africa. Thus a policeman acting in terms of the
cannot be faulted for delivering the article to a
citizen of South Africa even though risks of such a citizen not
rendering the article
available for purposes of criminal proceedings
are ever-present. Correction of such anomalies surely rests with the
He who exercises a right given to him by statute,
cannot be held to injure anyone by so doing.
Again, the criminal proceedings have not come to an end
yet. The question that the criminal matter was either withdrawn or
from the roll does not imply that the proceedings have come to
an 2nd. The end will only be reached when the accused has been given
All the foregoing should, however, be read subject to
Sections 55 and 56, While it is appreciated that the Section under
police officer purports to have acted sets no limits as to
when he can so act, a proper reading of Section 56 read with the
or marginal note i.e. Disposal of Article after commencement
of criminal proceedings, clearly appears to set limits to the
of Section 52(b) once the article in question forms the
subject matter of commenced proceedings for it becomes inconceivable
purpose 56(a) would serve if a policeman has usurped courts'
power under 52(b). It was not the legislature's intention that 56(a)
should be superfluous or a fifth wheel to the cart. For future
purposes then police are prohibited from acting as did deponent i
curcumstances similar to those of the present case.
It would also seem that since Mr. Kemp too is claiming
lawful title to the motor vehicle, Applicant would do well to
own title against him.
Application to grant the order is refused. Costs are
accordingly awarded to Respondents.
M.L. LEHOHLA ACTING JUDGE
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