CRI/REV/75/99 IN THE HIGH COURT OF LESOTHO
the matter of:
CLASS II MAGISTRATE(LERIBE DISTRICT 1st
THOMAS LEHALIKO 2nd Respondent
Delivered by the Hon. Mr Justice M.L. Lehohla on the 8th
day of November. 1999
On 27th October, 1999 this Court granted an
order upholding the application for review launched by the Crown
against the two respondents.
The court stated on that day that reasons for judgment
would be furnished on 8th November, 1999. Here do they
accordingly follow below :-
2 Having served a copy thereof on the respondents on
17th June, 1999 the
applicant filed of record with the Registrar of this
Court a notice of motion couched in the following terms, namely :
- Kindly take notice that application for review will be
made to this Honourable Court on behalf of the above named Applicant
of Public Prosecutions] on the 25th day of June,
1999 at 9.30 a.m. or so soon thereafter as the matter may be
conveniently heard for an order in the following terms
Reviewing, correcting and setting aside the order
granted by first Respondentin CR/284/99 in which the vehicle to
wit; Nissan Van 1993 model,Registration No. B 0705, the
subject - matter in CR/284/99 was released to thesecond
Directing second Respondent to return forthwith, to the
investigating officerthe above-mentioned vehicle; and
Directing that the above-mentioned vehicle be restored
to the possession of andbe kept in the safe custody of the
investigating officer pending finalisation of the proceedings in
Granting further and/or Alternative Relief as the above
Honourable Courtdeems fit.
In motivating this review application which is opposed
only by the 2nd respondent the Crown has relied on the
founding and supporting affidavits of Detective Trooper Chaba and
Sechefo Kumi who were the
investigating officer and public prosecutor
respectively in the above matter as it seesawed towards a start in
3 the Court below.
Trooper Chaba deposes that the second respondent is a
suspect in CR/284/99 in which is involved theft of a Motor vehicle
Letters and Numbers No. ELY 22 MP in respect of
which one Domingos Fulana is a complainant.
This deponent reiterates that the second respondent is
charged with theft of the vehicle in question and elaborates that as
registered in the names of the second respondent this
vehicle bears Registration Letter and Numbers B 0705. The blue card
annexure "A" amply bears this out indeed.
This deponent avers further that on 13th
March, 1999 pursuant to the information he had in his possession in
his capacity as the investigating officer, he caused the vehicle
question i.e. the one bearing the Registration Letter and numbers B
0705 to be seized on account of the 2nd respondents
failure to account for his possession of this vehicle. This deponent
was of the view that the 2nd respondents possession of
this vehicle was neither taint-free not lawful.
The deponent avers that his suspicion of the
unlawfulness of the 2nd
4 respondents possession of this vehicle was
strengthened by the presence of what
appeared to have been patent tampering with the engine
number on examination of same.
Because the 2nd respondent held himself as
the owner of this vehicle and because on being requested to furnish
proof in that regard he backed his
claim by production of a blue card
TC3 No 65347(3) (attached to the applicants founding papers) duly
registered in the 2nd respondents names, and because of
the apparent tampering which though discernible to this deponent, the
second respondent nonetheless
failed to give satisfactory account of,
this deponent set about searching for the true owner. Meantime this
deponent seized the vehicle.
His efforts were rewarded in the following respects:
The engine and chassis numbers were proved to have been
tests carried out revealed that the vehicle's original
engine and chassis numbers were L 18D274557R and ADN420000 J 030932
Annexure "B"bears out this deponents
observations to the hilt.
To buttress this the evidence of Detective Inspector
G.B. WEINHOLD given under oath as shown in Annexure "B"
De Klerk who is a
5 Commissioner of Oaths in the South African Police
Services indicates that on
examination of the Nissan LDV described as maroon in
colour with a white stripe the following were found:
"ENGINE NO : 18274667R - FALSE (GRINDED)
CHASSIS NO : JO80982 - FALSE (GRINDED)
I take it that the word "Grinded" is a
corruption of the word "grind" which
should have been rendered as GROUND in the text in which
Weinhold has attempted to use it. Otherwise the word
"grind" used in the context of interfering with engine or
for purposes of obliterating or unlawfully altering
the originals can be used interchangeably with the word "tamper".
(c) The original and therefore correct Engine and
Chassis numbers as appear in the blue card are L18D274557R and
ADN4320000 JO 30000
30932 respectively as opposed to 18274667 and
Investigations by this deponent, after tests had laid
bare what happened to be genuine numbers, revealed that the true
owner of this
vehicle was one Domingos Fulana ofDennilton 1030 Khoza
street, House No.274 South Africa.
6 When Fulana was run to earth he positively identified
the vehicle as his and
duly produced Annexure "C", (a clearance
certificate) bearing the correct particulars of this vehicle
including the original
therefore correct Engine and Chassis numbers
What is enough to raise one's eye-brows in utter
bewilderment is that the Registration number i.e. No. B 0705 claimed
by the 2nd respondent to be his was revealed by the Butha
Buthe Sub-Accountancy records to have legitimately been allocated not
to the 2nd respondent Nyatso Thomas Lehaliko but to
Tsokolo 'Mako in respect of his Toyota van as opposed to the Nissan
Custom Pick-up the subject
matter of these proceedings.
Fittingly therefore it came as a matter of surprise to
Detective Trooper Chaba that the subject matter of these proceedings
does not tally with documents held by the second respondent
should nonetheless be released to this respondent following the first
respondents order which the investigating officer had no option but
to bow to.
7 There is no evidence gainsaying the Crown's averment
in paragraph 14 that the
subject matter of proceedings was not before court when
the 1* respondent gave the order effectively removing it from the
of police whose suspicion of the taint of dishonour adherent
thereto, and the stigma of unlawful possession of it by the 2ndrespondent seemed even at that stage to be well-grounded.
On the basis that the vehicle in issue was not before
the subordinate court when the order releasing it to the 2nd
respondent was granted the deponent seeks to persuade this Court on
review that the order releasing the vehicle was unlawful.
For all the averments by the second respondent which
appear in the main to be argumentative and therefore irrelevant,
is cast on the issue by what was jotted down by
various magistrates and what therefore forms the substantive record
of the proceeding
that was before the Subordinate Court.
That record shows that the 2nd respondent was
charged with unlawfulpossession of a motor vehicle described as a
red Nissan van Reg No BLY 229 MP,the property in the lawful
possession of Domingos Fulana etc
8 No plea was taken. The accused however appeared before
dates : 17-03-99; 19-03-99; 22-03-99.
On the next of the first two occasions above the 2nd
respondent was in the company of Mr Mathathafeng who represented him
and made an application or intimated to the Court presided over
the Senior Resident Magistrate that his client prayed for
an order releasing the vehicle to him.
On the first occasion when he appeared unrepresented it
seemed he was before a different magistrate for purposes of applying
which was granted.
On the 3rd occasion reflected above the 2nd
respondent appeared before the Senior Resident Magistrate represented
by Mr Teele. The same application
for release of the vehicle was made
but it appears for one reason or another the Court didn't give effect
to it perhaps because of
the absence of the docket hence the order it
made as follows :
"I will postpone the matter until the 26-03-99.
Remanded to 26-03-99. P.P. To avail docket on next remand".
It appears to me hardly arguable that the learned Senior
Resident Magistrate was wrong in not giving effect to the application
release moved by Mr Teele. As far as I can gather from the record
before her there were no formal papers on which such application
based when being moved before the Senior Resident Magistrate.
The record reveals that by consent on 26-03-99 there was
a further remand to 23-04-99; and that the date-of hearing was fixed
On 19-05-99 the public prosecutor applied for an
amendment to the charge as then it appeared there was a complainant
a charge of theft to be preferred against the 2nd
respondent. The application for amendment was granted by the Senior
Resident Magistrate who explained the charge to the 2nd
respondent (accused) and the matter was remanded to 2-6-99 for
On that day Mr Mathafeng appeared for the accused before
the 1st respondent. Apparently the complainant did not
turn up on that day.
The Magistrate ordered the release of the vehicle after
he had been addressed by Mr Mathafeng to the effect that "the
should be given full effect of this
constitutional right [of not being guilty until proven
guilty as contained in the Constitution of this country] and that the
has been confiscated by (sic) the accused should be
returned to him".
There was an undertaking that the accused would bring
the vehicle before the court below whenever ordered to do so.
It is against the release order that the Crown sought
this Courts intervention by way of review on grounds of procedural
It is a matter of some regret that the record of
proceedings before the court below does not reveal the Class of the
order is sought to be reviewed. It is of utmost
importance that this vital piece of information is not concealed from
or Superior Courts sitting on review. It is a matter
of small consolation that when moving this review application the
cited that Magistrate by not only name but Class. The
important thing is that the record of proceedings over which he was
and to which he attached his signature should have
reflected his Class as well and in much the same way as the Senior
Magistrate did not shy away from reflecting her own rank or class.
However it is permissible for an aggrieved party to seek
review of a judicial tribunal decision or one by an inferior court on
of the following grounds, to wit; (a) illegality (b)
irrationality (c) procedural impropriety allegedly committed by a
or inferior court.
It appears to me to be common cause that an oral
application was moved on behalf of the second respondent by his
lawyer for the release
of the vehicle in question. The application
was granted despite strong opposition by the Crown based mostly on
the grounds that:
the case involving this vehicle was still under active
investigation. It is noteworthy that when the application for the
was lodged thevehicle had barely been seized six days
prior thereto. A very short timeon all accounts.
the vehicle had been seized on a suspicion of theft and
its release wouldbe irregular as it forms the subject matter of
the contemplated criminal
trial against the second respondent.
In CRI/T/22/88 Rex vs Motamo Sehlabaka (unreported) at
page 15 onwards the fact that a Mercedes Benz truck which formed an
link in a chain of
events that culminated in a killing, was released before
the murder trial was held was
12 a matter of adverse comment by this Court. While in
Sehlabaka the truck was merely
an incidental piece of evidence to commission of a
different crime; in the instant matter the Nissan pick-up is the
of an alleged offence. Thus its release even before
the magistrate bothered to inspect it and take down its essential
to guard against any further tampering was an untenable
It strikes me as plain that, because this vehicle had
not been placed as an Exhibit in the proceedings going on before the
the first respondent had no jurisdiction over it and
therefore was not entitled to dispose of it without a substantive
wherein the other interested parties had been apprised
and served with formal notices of such an application backed either
or oral evidence.
Mr Mathafang for the second respondent sought in
argument to persuade this Court that it was not necessary to lodge
before the first respondent for purposes of
obtaining an order for the release of the vehicle concerned. He
sought to distinguish
from the instant case the requirement for
formal and substantive application which this Court raised as having
been in point in CRI/T/44/95
Rex vs Moitsupeli Letsie & 2 Ors in
an unreported judgment delivered on 19th February,
1996. He maintained that in CRI/T/44/95 the sole ground
for refusing the applicants' bail pending appeal was that there
any appeals filed at the time of the application for
While indeed there hadn't been any appeals lodged at the
time, this Court said
at page five " it is irregular to seek to make an
application for bail from the
This Court relied on a passage appearing in a side
judgment by Rooney J in CRI/T/9/80 Rex vs Mota Phaloane (unreported)
at page one
to the following effect
"Mr Erasmus moved the Court, from the bar for an
order releasing the appellant on bail.
The Court advised Mr Erasmus that a formal application
was required under the rules, but, that he should submit his
the Court would indicate what its attitude to a formal
application would be.
After hearing Counsel the court informed Mr Erasmus that
a formal application would be dismissed."
What clearly is manifest in the above judgment is that a
formal application is required as a sine qua non if a contention
the interests of the other party to
14 the litigation is to be entertained. This should
suffice to dispose of Mr Mathafeng's
contention alluded to earlier. It stands to reason
therefore that failure to cite and serve notice and papers on the
Director of Public
Prosecutions or the Attorney General in an
application for the release of the vehicle forming the subject matter
of a contemplated
criminal trial was not only irregular but improper.
It is clear to me that the application for the release
of the vehicle to the 2nd respondent was prompted by some
perceived "inability" of the crown to proceed with the
prosecution of the case on the appointed
dates. One other reason
cited and referred to earlier in this judgment was that the 2nd
respondents constitutional right of being presumed innocent until
proved guilty required to be given effect to.
I may only point out that the Constitution is a mere
frame-work within which other laws are to operate; and not only so,
be enabled to operate. The Constitution is not the first
port of call in litigation but port of last resort. If this had been
the absurdity necessarily inherent in the suggestion that the
Constitution allows people to arrogate to themselves the right to
belonging to others would be avoided. When due process and
laws have been allowed to play their part in full then perceptions
not be created that palpable and obvious improprieties
15 are consistent with the Constitution.
It seems to me unfortunate that the presiding judicial
officer became overwhelmed and flustered by use of the phrase "breach
of Constitutional rights of the accused". In the result he was
stampeded to a rather rash and precipitate decision that failed
take into account laws which had to come into play before any
...conjectural resort was had to the so-called enforcement of the
respondents constitutional rights.
This court is alive to provisions of subsection 56(6) of
the Criminal Procedure and Evidence Act 7 of 1981 to the effect that
"If the circumstances so require or if the criminal
proceedings in question cannot for any reason be disposed of, the
judicial officer concerned may make any order referred to in
subsection (l)(a) (b) or (c) at any stage of the proceedings".
In terms of subsection 56(1 )(a) an order can be made
returning the article to the person from whom it was seized, "if
may lawfully possess such article; or "(italics
supplied for emphasis) [the Court may order that] (b) "if such
not entitled to the article or cannot lawfully possess the
article, [it] be returned to any
16 other person entitled thereto, if such person may
lawfully possess the article; or "[may order that] (c) "if
is entitled to the article or if no person may lawfully
possess the article or if the person who is entitled thereto cannot
or is unknown, fit] be forfeited to the Crown".
It is significant that what runs like a gold-thread
through the subsections referred to immediately above is the
if the order is made entitling anybody in question
to the possession of an article contemplated in these provisions then
such a person
should qualify to possess it if and only if he may
lawfully possess such an article. I lay emphasis on the italicised
The authority of Fako Griffiths vs The Commissioner of
Police & An. C. of
A. (CIV) No. 9/91 (unreported) at p.6 is very
I have already indicated that the record does not show
the accused as having pleaded in the instant matter.
In going about a situation where no plea had been
recorded or entered Ackermann J.A. in Fako Griffiths above said :
"There are various avenues open to the presiding
judicial officer in an inferior court when the crown is unable to
does not proceed with its prosecution against an accused
charged with a crime and who has not yet pleaded to such charge. They
the following :
'If the prosecutor does not appear on the court day
appointed for the trial the accused may be discharged in
terms of subsection 278(1) of the Code. This does not
deprive the Director of Public Prosecutions or the
prosecutor on his behalf, of the right in terms of
278(3) of withdrawing any charge at any time before the
accused has pleaded, and framing a fresh charge for
hearing before the same or any other competent court.
trial may be postponed(if necessary) from time to time
terms of section 149. The court may, on the other hand,
require the accused to plead to the charge in terms of
section 150 and decline to postpone the trial. In that
if the prosecutor were unwilling or unable to proceed
its prosecution against the accused, the accused in the
event of his having pleaded not guilty, would be
I have already referred to provisions of sub-sections
56(6) and 56(l)(a)(b)(c).
In my view it seems both patent and logical that
sub-section 56(6) can only come into effect after the commencement of
proceeding. The commonsense approach would be to read this
sub-section together with sub-section (1) and never in isolation.
18 Even if the judicial officer mistakenly thought that
he was empowered to make
an order releasing the vehicle in question then the
gold-thread expression referred toearlier would serve as his
dependable lodestar enabling him to return the vehicle onlyto
the person who "may lawfully possess" it.
It is illuminating to see that in an attempt to ensure
that property that is a subject matter of a criminal proceeding
during or at the close of such a proceeding, does not
go to the wrong hands, the legislature clearly stipulates in
"The court may, for the purpose of any order under
sub-section (1) hear such additional evidence, whether by affidavit
as it may deem fit."
It behoved the first respondent as a judicial officer
before releasing the vehicle to the second respondent to have first
the requirements of this important sub-section. But as the
record and evidence show this was not done. Thus a procedural
tainted that aspect of the judicial function.
I am in no doubt that to give effect to proper
application in meaning of subsections 56(1) and (2) there would
have had to be
a formal and substantive
19 application moved before a judicial officer for the
release of an article seized in terms of section 52 of the Criminal
and Evidence Act 1981.
Because no such application as envisaged by the
provisions, when properly construed, of the sections referred to
above was made, the
subsequent release of the vehicle following the
1st respondents order cannot have been legal or
procedurally proper. It stands to reason that the interpretation of
provisions of such-sections
56(2) and (1) in the context of facts
constituting the instant matter clearly places it beyond the
cognisance of the learned Magistrate;
therefore his act of
purportedly releasing the vehicle to the second respondent ought to
be declared procedurally improper.
It should be understood though that a judicial review is
not an appeal from a decision made but - as clearly and properly
this Court by Mr Thetsane - a review of the manner in which
the decision was made by the inferior court. See Chief Constable of
Wales Police vs Evans  3 ALL ER 141 at p. 155.
It is beneficial to appreciate the meaning contained in
the dictum of Lord Hailsham of St Marylebone LC at page 143 letter
to the purpose of the remedy by way of judicial review. His
Lordship in the above authority neatly stated the
purpose of this remedy as follows :
" It is not intended to take away from those
[judicial, quasi-judicial] authorities the powers and discretions
properly vested in themby law and to substitute the courts as the
bodies making the decisions.It is intended to see that the
relevant authorities use their powers in a
I entirely agree with this statement.
At page 144 the learned Judge finally rams the point
home in letter (a) by
"The purpose of judicial review is to ensure that
the individual receives fair treatment, and not to ensure that the
after according fair treatment, reaches on a matter which
it is authorised or enjoined by law to decide for itself a conclusion
is correct in the eyes of the court".
It is clear to me that the side of the public prosecutor
in the Court below did not receive fair treatment envisaged and
to in the above authority.
For reasons stated above the conclusion is inescapable
that the learned magistrate's order was capricious inasmuch as it was
to the provisions of our
Criminal Procedure and Evidence Act 7 of 1981. As
clearly demonstrated he was incompetent to grant the order he did.
Thus his decision
21 In the result the application for review is granted
in terms of prayers (a) (b) and
(c) of the Notice of Motion.
8th November, 1999
Applicant: Mr Thetsane
1st Respondent: Mr Mathafeng
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