IN THE HIGH COURT OF LESOTHO
In the matter of
THULO SHASHAPE Applicant
THE COMMISSIONER OF POLICE 1st Respondent
OFFICER COMMANDING (RLMP) LERIBE 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
Delivered by The Hon. Mr. Justice Sir Peter Allen on the 25th day of February 1988
This is an application for the release of a motor vehicle from the custody of the police at Leribe.
The vehicle in question is a Nissan Combi E.20 registered number C.4476, engine number L18H216806G and chassis number 00722719. According to the applicant the vehicle had been hired in January 1986 to take a church choir on a trip to Stillfontein in the Republic of South Africa and it was stolen from where it was parked at that place. The applicant reported the theft to the police there.
On 20 July 1987 the applicant reported to Leribe Police Station that his stolen vehicle was now in their custody at Leribe and he asked for it to be returned to him. He produced his registration book and told the police how he claimed he could identify the vehicle. This was because it then bore a different registration
number, F.5764; there was an engine in it with a different engine number, and the applicant claimed that the chassis number had been tampered with. He said nothing about the vehicle licence on the windscreen.
The applicant in his affidavit averred that the Leribe police had informed him that they had found the seized vehicle being used as a taxi between Hlotse and Maputsoe and it was suspected to have been stolen, so they impounded it.
However, the meagre information given by Dectective Staff Sergeant Khosi in his affidavit was rather different. He asserted that the applicant had beer unable to make a satisfactory identification of the vehicle and that the chassis number on F5764 had not been tampered with. He also denied that the vehicle had been seized by the police when it was being used as a taxi. He stated that the vehicle was seized from a woman who parked it outside the surgery of one Dr. Makotoko. Presumably this was in Leribe although he did not say so. There was no information concerning the vehicle licence found on it.
Since the reported theft of the applicant's vehicle was in the Republic the Leribe police had not opened a file on it.
The police affidavit is notable for its absence of information. Presumably their records would show who was the registered owner of the vehicle bearing the registration, engine and chassis numbers as well as the vehicle licence found on it at Leribe. But there was no mention of this in the affidavit, nor of what stage their enquiries had reached with regard to that vehicle.
In Court Mr Malebanye for the respondents pointed out that the applicant in his affidavit had alleged that hi3 vehicle was a 1986 model whereas his registration book referred to a 1984 model. Miss Tau said that this was an error and, bearing in mind that the vehicle was supposed to have been stolen in January 1986, I think it probably was a genuine mistake. However, the applicant should have stated in his affidavit for how long he had owned the vehicle and what type of licence had been issued for the vehicle.
But even if tne vehicle could be returned to the applicant he would not be entitled to the engine which is now in it. Nor could that vehicle be used on the road lawfully with the applicant's vehicle registration book. Moreover the chassis does not have on it the number shown for the applicant's vehicle.
The applicant does not indicate in his affidavit by just what means he identified the vehicle to be his. I imagine that there are quite a number of Nissan Combis of 1984 on the roads and I cannot find any sufficient reason to be satisfied that the applicant has clearly identified this particular vehicle to be his. The burden is on the applicant to show that on the balance of probabilities,based on the facts, that the police are wrongfully withholding from him his property. In my opinion he has failed to do this.
Accordingly this application is dismissed with costs.
P. A. P. J. ALLEN
25 February 1988
Misa Tau for applicant
Mr. Malebanye for respondent
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