CIV/APN/215/05

IN THE HIGH COURT OF LESOTHO

In the Matter Between:

DEPARTMENT OF PUBLIC WORKS,

ROADS AND TRANSPORT (FREE STATE

PROVINCE, SOUTH AFRICA) 1st Applicant

THE ATTORNEY GENERAL 2nd Applicant

(FREE STATE PROVINCE, SOUTH AFRICA)

and

TSIETSI MASSA 1st Respondent

HER WORSHIP MRS MOTHETHO 2nd Respondent

OFFICER COMMANDING, MAFETENG 3rd Respondent

COMMISSIONER OF POLICE 4th Respondent

DIRECTOR OF PUBLIC PROSECUTIONS 5th Respondent

ATTORNEY-GENERAL 6th Respondent

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Judgment

Delivered by the Hon. Mrs Justice A.M. Hlajoane on 19^th October. 2005.

These are proceedings for review in terms of Rule 50 of the High Court Rules 1980. The case emanates from the Mafeteng Magistrate's Court where the first Respondent faces charges of car theft in contravention of the provisions of the Motor Vehicle Theft Act No.13 of 2000. He has been granted bail.

In those criminal proceedings before the magistrate, the defence counsel had applied for the release of the vehicle subject matter of the charge to the first Respondent in this case. The first Respondent who is the accused in the criminal case. Because the investigating officer had no objection to the release of that vehicle, the magistrate released the vehicle to the accused.

According to the allegations in the charges of theft of car, the first Applicant was the complainant in that criminal case. After the first Applicant came to know about the order releasing the vehicle to the first Respondent, he approached the magistrate's court for stay of execution. He was however not successful in that Application, hence this review Application.

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In their answering papers, the Respondents have raised the following points in limine, locus standi and lack of urgency. They are saying that the Applicants have no locus standi because they are not parties to the case subject matter of this review, but are at the very most or at best potential crown witnesses.

The Respondents cited the case of Scott and Others v Hanekom and Others 1980 (3) S.A. 1182 on locus standi, where it was held amongst others that in the Elections of Community Council, a person who was qualified to be on the Voters' roll should be regarded as having a legal interest sufficient to give him locus standi to challenge the elections. In casu, the Applicants are not just potential witnesses but the complainants in the criminal case. They therefore have a legal interest in the outcome of the case. They have an interest sufficient to give them locus standi.

The case of Khauoe v Attorney-General and Another 1995-96 LLR & LB 470 clearly expressed that in our law a person who sues must have an interest in the subject matter of the suit and that such interest must be a direct one. Applicants as complaints have such an interest. If complainants in theft cases could be considered as having no legal interest who then could be considered, the alleged thief! No.

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This case is distinguishable from the case cited by the Respondents, R v Raftopulos 1952(4) S.A. 85, where the owner of a shop had been convicted of gambling, in that he had in his shop what they call a pin-table. This Pin-Table was a prohibited instrument. The Court refused an Application by the owner of the pin-table for the return of the pin-table. Instead the instrument was confiscated by the court. The court held that the owner had no locus standi to appeal. The court in the above case could not have allowed the owner of the shop the return of a prohibited item. But in our case the complainant is claiming the vehicle as his not anything prohibited. Applicants therefore have locus standi in the matter.

On urgency, the Applicants are saying that urgency is created from the fact that the vehicle has been exposed to the risk of theft and damage. The Respondents on the other side are saying that what the Applicants are saying to found urgency is highly speculative as no attempt was made to support this speculation. But looking at the founding papers the Applicants show that they only learned of the whereabouts of the vehicle they had reported stolen after the order for release of the vehicle to first Respondent had already been granted. This alone created urgency as the Applicants came to know that the vehicle had been released to the person suspected to have stolen the same vehicle.

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The Respondents are saying that when the magistrate released the vehicle to first Respondent he was just exercising his discretion but not releasing it as contemplated in the Motor Vehicle Theft Act 2000. I fail to understand what the Respondents are saying because the vehicle had been in police custody under that Act. The charge under which the suspect is charged is under the Act, so that the provisions of section 14(3) of the Act were applicable.

The magistrate in her own words on the record on realizing her mistake even advised that the aggrieved party could approach the High Court for review or appeal. Section 14(3) of the Motor Vehicle Act 2000 is couched in mandatory terms. The section directs a court seized with criminal proceedings involving a theft of a motor vehicle not to release a vehicle that had been taken before Court for purposes of prosecution until the conclusion of such prosecution.

In casu, that vehicle subject matter of this case had been seized by police and placed before Court for purposes of the criminal charges against the first Respondent. This was well known to the magistrate who released the vehicle to first Respondent. When the vehicle was so released no notice was given to other interested parties who would have a substantial interest in the relief sought. No mention was made of the relevant provisions of the Motor Vehicle Theft Act by the magistrate

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in releasing the vehicle to someone suspected of stealing the same vehicle. This called for review.

The Court thus finds that this matter called for an urgent relief and that the Applicants who were not going to be ordinary witnesses in the criminal charges, but complainants with direct and substantial interest had locus standi to bring this proceedings.

The points in limine raised by the Respondents therefore fail and are dismissed with costs. And because the release of the vehicle to first Respondent was outside the provisions of the Act, it was therefore irregular. The points in limine raised went into the roots of the matter, the court therefore grants the prayers as set out in the notice of motion.

1. M. HLAJOANE

JUDGE

For Applicants: Mr Mpaka

For Respondents: Mr Phafane

Mr Shale for Respondents and Mr Mpaka For Applicants in noting the judgment.