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CIV/APN/14/99

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 4^th 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:

1. 
   differential

   
   

2. 
   prop and shaft

   
   

3. 
   two rear wheels

   
   

4. 
   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
4^th 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 4^th 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 4^th 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:

1. 
   The First Respondent shall release a certain Cream
   Toyota Hilux van to the Applicant.

   
   

2. 
   The Applicant shall produce the said van before Court
   whenever so required.

   
   

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3. 
   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.

   
   

4. 
   Respondents shall pay costs of the application

   
   

T. MONAPATHI
JUDGE

29^th April, 1999

For
the Applicant Mr. Mpaka - Sooknanan & Associates

For
the Respondents 1 & 2 Miss Lebona Attorney General's Office