CIV/APN/144/94 IN THE HIGH COURT OP LESOTHO
In the matter between:
KEIELETSO MOKOKOANA APPELLANT
THE OFFICER COMMANDING POLICE ATROBBERY
AND CAR THEFT UNIT 1ST RESPONDENT
'ATTORNEY GENERAL (N.O.) 2ND RESPONDENT
REASONS FOR JUDGMENT
Delivered by the Honourable Mr. Justice W.C.M. Maqutu on
the 3rd day of March, 1995.
On the 17th February, 1995 this matter was argued and I
granted the order in terms of prayer 1 of the Notice of Motion as
to give reasons later.
Applicant had on the 4th May, 1994 filed an application
for an order;
"1. Directing the Respondents to release
Applicant's motor vehicles:-
(a) a Toyota Cressida, registration MRX 382 T,
Chassis Number RX 725505758 and Engine Number 22R
a Toyota Hilux Van, a rebuilt vehicle;
a Toyota Hilux Van, registration OBW 19590,Engine
Number 4Y0080068 and Chassis Number RN40128095.
Directing Respondents to pay costs hereof;
Granting Applicant such further and or
alternativerelief as this Honourable Court deems fit."
The application was supposed to be made on the 16th May,
1994 if unopposed. The application was served on both respondents on
4th May, 1994.
According to Applicant, the three vehicles were seized
by the police on the 28th March, 1994. The police had a warrant to
different vehicles from the ones that were seized. They
seized these vehicles because (according to Applicant) they suspected
to be stolen.
On the 4th May, 1994 when the application was brought,
the police had (in respect of the three vehicles) still not charged
with theft or any crime. To put the gist of the application
in applicant's own words:-
"Ever since the said seizure, these officers have
not preferred any criminal charges against me on these vehicles.
is baseless and without purpose and my attorneys have
informed me that this is unacceptable."
It seems (from Applicant's own affidavit) that he had
previously been in possession of two vehicles that were on the search
The police had in the past seized those two vehicles six
times and on each occasion released those vehicles to Applicant.
It seems the police (on the six occasions they had
seized Applicant's two vehicles) acted reasonably and fairly. They
up their suspicions through proper
investigations. Once they found there was insufficient evidence
to sustain a criminal charge
they released those vehicles. When they
went for those two vehicles the seventh time, they found
-4-Applicant had sold them.
I will not go into whether or not the police were
justified in seizing the three other vehicles, which they were not
The reason being that they made reasonable allegations
justifying the detention of those vehicles. Furthermore the search
in broad terms. Indeed Applicant does not challenge the
seizure of his vehicles. He only challenged the keeping of these
for a long period without a criminal charge against him
The matter could not proceed in May 1994 because the
police were on strike. Consequently the respondents could not take
The matter was postponed several times.
On the 10th June, 1994 Police Officer Paul Kumi of the
Criminal Investigation Division made an opposing affidavit. In it he
search warrant entitled them to seize the four vehicles as
they did. He has no knowledge of what happened in the past. The
warrant marked "A" of Applicant's affidavit shows
two vehicles 4x4 Toyota Hilux registration numbers OBW21281 and
The search warrant also authorises the police to seize other
vehicles with or without registration numbers.
Police Officer Paul Kumi then states that the vehicles
mentioned in prayers l(a) and (b) have already been identified by the
He then concludes:
"applicant will in due course be charged with theft
of the said vehicles wherein they will be used as exhibits."
Police Officer Paul Kumi adds that Applicant's documents
do not really take the matter further because they were issued after
vehicle had been stolen. He concludes:
"I have been informed by my attorney and I verily
believe same to be true that property seized as exhibits and retained
police cannot be released until the criminal case in relation
thereto has been finalised."
The advice given to this investigating officer has
exaggerated the extent of police powers beyond permissible length in
with any concept of the rule of law and rights of
property. In the first place as more fully appears in Minister van
Wet en Orde
v Damis Motors (Midland) Edms 1989 (1) SA 926 the
onus in the matter is on the State. First they have to
prove Applicant possessed the vehicle unlawfully. Secondly failure to
proof that they made enquiries about the vehicles
documentation and that it is erroneous does not help the State to
onus. Their vague suggestion that they did so is not
enough, especially when this allegation is disputed.
Up to the granting of Applicant's application on the
17th February, 1995, Applicant had not been charged and there was no
case pending before any Court.
Justice delayed is justice denied. The police know that
they are duty bound to respect the liberty, life and property of the
The police and the courts are entitled to hold property of a
"for so long as may be necessary for purposes of
any examination, investigation, trial or enquiry...* See Section
17(4) of the Constitution of Lesotho under the heading Freedom
from Arbitrary Seizure of Property.
It is trite law that accused people are entitled to a
speedy trial. The police seize property that shall be used as an
terms of Section 52 of the Criminal and Procedure Act
The intention is not that they should keep the property
indefinitely without charging the accused with the theft of the
is suspected of stealing. For Police Officer Paul Kumi to
assume he can charge a suspect "in due course" at his own
is to act unreasonably something no officer of the state
is entitled to do. The police are not entitled to seize people's
put it outside the charge office and forget about it while
it deteriorates every day that passes.
On the 24th June, 19 94 Applicant queried the fact that
Police Officer Kumi had failed to produce an affidavit
the allegation that South African authorities
registered a stolen vehicle. He also challenged Police Officer Kumi's
he had failed to produce affidavits from
complainants. The view of Applicant was that if the police had
such evidence they could
have charged him. Applicant concluded by
"It is amazing that police should seize property
then investigate thereon. This only shows lack of reasonable
-8-The matter was not heard on the 2nd August, 1994.
On the 30th November, 1994, the matter was set-down for
hearing on the 8th February, 1994 and Respondents were served the
It is my view that this set-down should have reminded the
police of these vehicles even if they had forgotten about them.
they should have continued investigations where they had
left off. Their failure to do anything about Applicant's case did not
me as proper and fair.
On the 8th February, 1995 I asked Mr. Mapetla who
appeared for the Attorney-General why Applicant had not been charged
with any criminal
offence. His reply was that he had received no
instructions from the police although the matter had been set down as
long ago as
the 30th November, 1994. Mr. Nthethe for Applicant was
anxious to proceed claiming the vehicle was deteriorating and that
was prejudicial to his client. I noted his legitimate
concern and made the following order:-
"The matter is postponed to the 17th February, 1995
at 2.30 p.m. to enable Mr, Mapetla to find out why no criminal
have been instituted against applicant. Costs of the day
are awarded to applicant."
On the 17th February, 1995 when we found Applicant was
still not charged with any offence I directed that police officer
should come before so that he could explain personally what
was going on. The Court was adjourned for 30 minutes to enable that
officer to be present. The Court was leaning over backwards to
accommodate the police as far as possible. The police officer in
was not found.
When argument began Mr. Mapetla for the Attorney General
handed to me an affidavit that was made by the said investigating
explaining what was going on. I was mot unimpressed by it
because in it he was simply saying he was busy with other things. He
only going to go to Eldorado Park, Johannesburg in three days'
time (which would be the 20th February, 1995) in order to resume the
investigation of the matter. There are very advanced methods of
speedy communication such as the fax and the telephone, why he had
go to Johannesburg and not Qwaqwa and Bethlehem where the
registration of the vehicle took place was not clear to me.
It was also a matter of concern that the affidavit dated
Kith February, 1995 disclosed that the Public Prosecutor in September
on receipt of the police docket referred it back
to the police because the Public Prosecutor was not
impressed with it because the docket
"was lacking in certain vital respects and that
further investigations had to be conducted. "See
paragraph 4 of the affidavit of Paul Kumi dated 16th
I have already stated that whenever powers that are
properly conferred on any public official are abused, especially in
manner, the courts are obliged to intervene. The
reason being that illegality has crept into what had begun as a
of a power intended to be used properly for the
Mr. Nthethe referred me to the case of Ikaneng Makakole
v Officer Commanding CID Maseru C of A (CIV) No. 18 of 1985
This case is in many respects similar to this one.
In that case the police had eight months before the
application was lodged legitimately seized a car because they
considered its possession
by applicant to be based on fraudulent
documents. The police kept the vehicle in their possession and
sometimes used it for their purposes. Miller JA at page
"Moreover, no prosecution had been instituted in
respect of any offence concerning the car during the lengthy period
elapsed since the police took possession of it, there does
not appear to be any justification for the continued detention
It must be recognised that the statutory provisions relating
to detention of property generally anticipate prosecution for a
offence... In short what was visualised by the legislature
is a purposeful detention. If a stage is reached when the detention
no more purposeful, there can surely be no point in the
continued detention of the property. It appears to me that in this
case that stage was reached some time ago and it is just
and proper to release the car to applicant as the person who was in
fide possession at the time of its seizure."
For the above-mentioned reason the appeal was upheld
with costs and the order of the Court below dismissing the
application set aside
and in its place substituted an order releasing
the vehicle to Applicant. The police had very strongly resisted the
the grounds that it was stolen because the whereabouts
of the suspected seller were unknown.
This case is in many respects similar to this one
because the police allege the existence of complainants they cannot
eleven months they still have not charged Applicant
with any offence. The Public Prosecutor has found the
police have not made out a case and returned the docket
to them. After five months they still have not found evidence on the
of which the Public Prosecutor could proceed against the
accused. It does not even appear that Applicant was ever charged with
offence when the vehicles were seized from him by the police.
In the case of Fako Griffith v The Commissioner of
Police & Ors C of A (CIV) No.9 of 1991 (unreported) Ackermann JA
delays in investigations said;-
"The lapse of time (which would be unwarranted even
in the most complex commercial fraud cases) is wholly unjustified in
present instance. The appellant is entitled to have the case
against him proceeded with immediately or the charge against him
The delay in that case was considerably longer and the
accused had been charged. In this one the Applicant has never been
with the commission of any offence.
Initially the police seem to have been conscious of the
fact that they should not keep people's property for unduly long
That is why in the past, they kept taking two of Applicant's
vehicles and returning them, until that process had
been repeated six times. It is surprising that they are
clinging to these vehicles although they are not making any progress
In the case of Nthabiseng N. Molapo v Officer Commanding
(Maseru) and Another CIV/APN/280/92 (unreported) I was as hesitant to
a motor vehicle in similar circumstances because:-
"...I felt that criminal proceedings are a bed-rock
on which law and order and the stability of society and other human
rest. Without encouraging laxity and insensitivity that could
lead to the perpetration of oppression with impunity by the Crown,
felt the Court was entitled to know the facts surrounding the delay
of the criminal case against the accused."
In this case the Applicant has not even been charged.
The police just seized his vehicle and proceeded with their
presumably deriving some assistance from the presence
of accused's vehicles in their possession.
Even where the suspect is not in prison and there are no
limits set, Trollip J in Riddock v Attorney General for Transvaal
SA 817 at page 818 FG remarked;-
"No time is fixed in the Act in which the Attorney
General must take a decision, but the whole policy of the Act is that
accused must be brought to trial without undue delay... The
Attorney-General must act with reasonable expedition in deciding what
to do, and I have no doubt that, if he has delayed unduly in making a
decision in a particular case, the court can and would, at
instance of the aggrieved person, intervene and grant appropriate
relief." (The underlining is mine).
This applies even more to the police. The Public
Prosecutor on behalf of the Director of Public Prosecutions found
there was no case
that could stand before a court of law and directed
the police to investigate the matter further. The police find
busy to follow his instructions. The Court cannot
allow the police to file and forget the matter while Applicant's
vehicles are deteriorating
in their custody. The police, like all
other public servants, are obliged to serve the public expeditiously.
While each case should be determined according to its
merits, I was satisfied that the ends of justice would be better
served by granting
the application as prayed. There were no grounds
for keeping applicant's vehicles for over eleven months when the
police were not
making any progress and charging the accused of any
I therefore granted the application in terms of prayer 1
of the Notice of Motion;
W.C.M. MAQUTU JUDGE
For Appellant : Mr. G.G. Nthethe For the Crown : Mr.
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