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IN THE HIGH COURT OF LESOTHO
In the matter between :
DAVID NTHAKO Appellant
and
THE OFFICER COMMANDING Mabote Police Station) First Respondent
THE ATTORNEY GENERAL Second Respondent
LEBAMANG HATASE Third Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice T. Monapathi on the 29th day of April 1999
My ruling of the 4th February, 1999 contains a fuller analysis of the facts. The ruling was for joinder of the Third Respondent.
I did not agree with Mr. Mpaka that the admission by the First Respondent that the inside mirror and the radio were wrongfully extracted from the Applicant's vehicle in the First Respondent's possession added to the probabilities that the First
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Respondent took the other property by stealth. The property allegedly taken by stealth from the Applicant's vehicle were the following:
differential
prop and shaft
two rear wheels
1 front bumper;
These were the items that Third Respondent admitted he had taken. (See the affidavit of RLMP officer Lebohang Tsietsi and the supporting affidavit of the Third Respondent). The admission by the First Respondent could only confirm that the other items (a) to (d) above were placed in possession of the Third Respondent.
That the Third Respondent is in possession of the goods itemised above could only have been confirmed by the affidavits mentioned above. The fact that the Third Respondent did not dispute the possession should have further confirmed the facts. See the reasons for my ruling on the joinder of the Third Respondent of the 4th February 1999. In addition the injustice of going after the First Respondent alone who may have wrongly given over the articles was thereby removed by the joining of the Third Respondent. Third Respondent was served with the papers but elected not to respond. This could only mean that he chose to abide by the decision of the Court which decision may touch him.
That the goods itemised in annexure DN1 to the affidavit of Lebohang Tsietsi were different and separate from the ones mentioned in (a) - (d) earlier in my judgment and were given by Order of the Clerk of Court in terms of
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section55(2) of the Criminal Procedure and Evidence Act 1981 I also noted. It was also common cause. (See again the reasons for my ruling of the 4th February 1999). Furthermore the parts mentioned in DN1 were in connection with a vehicle with brown cab whereas the Applicant's was a white cab.
I cannot do more than refer to the reasons of my ruling of the 4th February 1999 which have given a fuller background of the matter. I noted that the Respondents contended that the parts given to the Third Respondent was in terms of section 52(b) which however was without the "consent" of the Applicant being the person from whom it was seized. That accordingly the Applicant's submission was irregular. I did not hear Miss Lebona for the First and Second Respondent to object to the conclusion.
I did not have any problems in making the following Order. That the Respondents shall release to the Applicant his vehicle, minus the bakkie or pan, together with the parts (a) - (d) which shall include (in addition) a radio and inside mirror. On the day of hearing of argument I had yet to receive Counsel's response to whether the dashboard was still with the Applicant's white cab or not. Counsel have now confirmed that the dashboard has been found intact on the cab. The Order was made with costs to the Applicant. And it was to the effect that:
The First Respondent shall release a certain Cream Toyota Hilux van to the Applicant.
The Applicant shall produce the said van before Court whenever so required.
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the First and Third Respondent shall return and re-instate the missing parts and accessories of the vehicle to the Applicant's said vehicle. These are the items mentioned as in (a) to (d) including the inside mirror and radio.
Respondents shall pay costs of the application
T. MONAPATHI JUDGE
29th April, 1999
For the Applicant Mr. Mpaka - Sooknanan & Associates
For the Respondents 1 & 2 Miss Lebona Attorney General's Office
