CIV/T/214/94 IN THE HIGH COURT OF LESOTHO
In the matter between:
TLALI LEFETA PLAINTIFF
ATTORNEY GENERAL DEFENDANT
Delivered by the Honourable Mr. G.N. Mofolo, Acting
Judge on the 21st day of July 1995
In this matter it appears that the police seized motor
vehicle registration No. E 1994 subject-matter of this enquiry on an
of the vehicle being stolen.
Having been charged the plaintiff was acquitted on all
charges that were brought against him and the court ordered that the
aforesaid be released to the plaintiff. Apparently despite
the aforesaid order the police have refused to release the vehicle in
terms of the court's order.
As a result of the said police refusal to
release plaintiff's vehicle plaintiff has issued summons against the
(a) Damages in the sum of M60,000-00.
Interest thereon at the rate of 18.25% a tempora morae.
Costs of suit and
Further and/or alternative relief.
When, on 14 July. 1995 the matter was about to proceed
both counsel for the plaintiff and defendant intimated that they
have a special case, sometimes called a stated case,
The point of law to be adjudicated or decided was said
Whether the fact that the Magistrate's Court released
the vehicle to the plaintiff this meant that the vehicle was
agreement a Blue Card (Registration Book) issued to the
plaintiff in terms of Road Traffic Act, (Section 8) 1981
was handed in and marked Exhibit "A".
I must on the onset express my disapproval of the way
some of these applications are made to court notwithstanding the fact
law allows points of law to be taken at any stage of the
Section 32 of the High Court Rules admits of special
cases being taken and in content it is substantially the same as the
in Amler's Precedents of Pleadings 4th Ed.
by Harms p.293. I do not subscribe to the lax and
casual manner in which some of these applications are brought to
court for decision
notwithstanding there being precedent for
Be this as it may. whenever there is an order of court,
it is expected that such order will be observed by those who are
by it; failure to observe orders of court is frowned upon by
the courts for the simple reason that such an attitude is fraught
undesirable consequences as is may lead to others taking the law
into their hands. In particular the police are themselves
and it is unheard of to be told that police do not
abide a court order as has been claimed in this case.
If. after the release of a vehicle the police feel they
have some other unfinished business concerning the vehicle, they must
post haste to charge: if they don't charge, they can have an
order to stay pending their investigation or appeal against the order
of the court for its reversal. They can't refuse to release simply
because they are police for such an attitude is, in my view,
contemptuous of the court's order.
I have in other cases expressed my view in matters
relating to vehicles seized by the police to the effect that:
(a) when police have seized a vehicle intended to be
as an exhibit in a pending trial such vehicle must be
delivered to the Clerk of Court or Registrar of the High Court as the
(b) once the vehicle has been delivered to the Clerk of
Court it is outside police control and awaits to be disposed of by
Officer at the end of the trial.
(c) that although the vehicle may be in police custody
after delivery to the Clerk of Court, that such police
custody is technical in that the real custodian is the Clerk of Court
of the High Court as the case may be.
- see Sections 55 and 56, especially of the Criminal
Procedure and Evidence Act. 1981.
Criminal proceedings were definitely instituted against
the plaintiff and when he was acquitted the motor vehicle
the trial was at the material time a court exhibit
having nothing whatsoever to do with the police; I don't see how the
a legal action could have availed themselves of the
liberty to refuse releasing the motor vehicle on their own steam and
to release a vehicle that was in law not in their custody.
I agree that the fact that plaintiff won his case and
has title to the vehicle does not mean that this is a judgment which
against all comers.
For the present at any rate and until the contrary is
proved, I hold that the plaintiff is entitled to possession of the
In several cases it was held that notice alone may. be
sufficient to constitute a person a party to a suit and a person who
served with notice that his title will be called in question
and who, notwithstanding such notice, neglects to intervene, may be
bound by the judgment. sea Paarl Pretoria GM Co. Ltd. v. Donovan and
Langlaagte Royal GM Co. 3 SAR 56; Paarl Pretoria GM Co. V.
Wolff No.3 SAR 93.
I understand the ratio of these cases as meaning that if
defendant or anybody challenged plaintiff's title he should have
with such notice and plaintiff despise service and
notice thereof neglecting to intervene he would thereby be bound by
Mr. Molapo for the defendant has said that there is
evidence that the vehicle belongs to one G.N. Grozier. Whenever
stolen, they are subject-matter of extensive publication
the police and I am wondering whether or not this
Grozier was a witness in which the plaintiff was charged of the theft
of this vehicle
and whether if Grozier was not such a witness why it
has taken the police so long to charge though, ostensibly, it is
clear why they
have not preferred a charge and have waited for the
plaintiff to institute a claim for damages.
Although I am not deciding the issue, it is my view that
where a litigant knowing that his right is subject-matter of an order
to his interest, remains silent for a reasonably long period
of time, such a litigant would by ordinary rules of estoppel be
from claiming a right to such property.
I am much worried by the fact that when an order was
made for the release of this vehicle there is no evidence that there
was an adverse claim. Even if there was such a claim
that it took such a long time to surface or rather was activated by
claim bothers me. My view is that the order of court
should first have been abided by and thereafter the law could have
To allow the status quo to prevail would be not only to
rubber-stamp but to give credence to an illegality. This vehicle
be released to the plaintiff as it should have been in
terms of the court order.
Accordingly the point of law raised is decided in favour
of the plaintiff to the extend that the vehicle will remain his until
contrary has been proved and provided that:-
the defendant at his expense will have the
vehicleevaluated, plaintiff will not dispose of the vehicle
pending the result of the action,
the vehicle having been released to the plaintiff, the
plaintiff will make available the vehicle and produce the same
court if and when such an occasion arises.
This ruling is without prejudice to a claim which
plaintiff has instituted against the defendant and which action will
in the normal way.
Costs will be costs in the trial.
Acting Judge 19th July, 1995.
For Plaintiff: Mr. Mafantiri For Defendant: Mr.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law