IN THE HIGH COURT OF LESOTHO
CRI/A/16/07
In the Matter Between:-
MAKEAKEA LETHAHA APPELLANT
AND
REX RESPONDENT
CRI/A/17/07
LETSEMA APPELLANT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara
on the 12th July 2007
Appellants herein face charges of contravening the provisions of Section 8 of the Motor Vehicles Theft Act of 2003 before the Butha-Buthe Magistrate Court respectively. Their cases have not yet been heard but they are both out on bail. They are appealing the decision of the Magistrate’s Court in its refusal to release the motor vehicles, the subject matters of the main cases to them. Both appeals were argued together by consent of both sides for the reason that they basically emanate from similar facts and the issues for determination in both are the same.
Facts which brought about these appeals are that in both cases, counsel for appellants applied for the release of the motor vehicles to appellants pending finalization of their cases. Both appellants handed in the registration documents of the vehicles in motivation of their applications. The crown through the public prosecutor did not raise any objection to the said applications. Both were however refused by the Magistrate hence the applications.
In both applications, the following issues have been raised for determination by this Court:-
Whether the Learned magistrate was justified in refusing the applications notwithstanding the fact that they were not opposed.
Whether the court ought not to have exercised its discretion in favour of the appellant because of the fact that the charge against him is not connected to the seizure of the motor vehicle on the existence of reasonable grounds for believing that the motor vehicle is a stolen one which precludes pre-trial release.
Whether a period of three weeks is not an inordinate delay in the circumstances of the case and lastly,
Whether the court ought not to have invoked the presumption of regularity in favour of appellant.
In his verbal and written submissions, Mr. Ratau pointed out that the prosecutor had no objection to the application but merely drew the court’s attention to the provisions of Section 14 of the Act. He added that the learned magistrate was not addressed on the reasons why the application was not opposed which could include the following:-
That he believed that the motor vehicle would be brought to court on the date of trial.
That appellant himself would come to court and not abscond with the motor vehicle.
That the police investigations might take a long time to complete in which case appellant could be prejudiced by the continued detention of the vehicle.
It was also stated on behalf of appellants that in his refusal of the applications, the Magistrate pointed out that he was exercising his discretion as it was clear that the vehicle had not been seized under Section 14 of the Act which precludes release of motor vehicles seized under that section pending finalization of the case. Mr. Ratau made the submission that for these reasons and the reason that it encouraged the practice of seizure of property before embarking on investigations the court erred in refusing the application for release.
It was further submitted that the court erred in not finding in favour of appellants because they were charged with allegedly contravening the provisions of section 8 (i) of the Act that deals with tampering and were not suspected to have stolen the vehicle. Further, that the applications for release could not be decided on the basis of the provisions of Section 14 of the Act.
Mr. Ratau added that the Court also erred in finding that a three (3) week delay (since the seizure of the motor vehicle) was not inordinate in the circumstances because if failed to take into consideration the use to which the motor vehicle is put, to wit, carrying passengers for reward.
On the presumption of regularity, Mr. Ratau made the submission that registration of a motor vehicle presumes that the person in whose names a vehicle is registered is the lawful owner because it entails elaborate procedures involving state officials including the national police service and revenue collectors as well as Interpol, the purpose of which is to scrutinize particulars of each vehicle to be registered. Further, that for these reasons, the magistrate erred in holding that ‘mere registration of the vehicle in the names of the accused cannot on its own suffice’.
In response, Ms Ngcobo stated on behalf of the crown that whilst she agreed that the prosecutor had no objection to the application for release, he nonetheless brought the attention of the court to the provisions of Section 14 of the Act. She added that the court did not err and/or misdirect itself in invoking the provisions of section 14 of the Act pursuant to which the motor vehicles were seized as evidenced by annexure ‘A’ to the charge sheet. Further that indeed at the time of the application, the six months period referred to therein had not expired because three weeks is a far lesser period and cannot correctly be said to be unnecessarily long.
It was also Ms Ngcobo’s submission that the engine and chassis numbers were tampered with and as such, the truthful owner could come and claim the vehicles.
Lastly, that the court was entitled to exercise its discretion.
In his reply, Mr. Ratau denied that the appellants were charged under section 14 of the act which section refers to vehicles seized under section 3. He argued that appellants were charged under section 8 which as he contended, has nothing to do with section 14.
He added that in view of the circumstances of the cases, the magistrate did not exercise his discretion properly especially because the applications were not opposed and the vehicles were registered in the names of the appellants. Furthermore, that the appellants are not facing charges of theft so that the issue of someone else claiming the vehicles does not arise.
I turn now to deal with the issues sequentially.
As a starting point, it is my opinion that whether the magistrate was justified in refusing the application although it was not opposed by the public prosecutor is not an issue that can be determined on its own. It would depend on a number of other factors.
Suffice it to say that in any proceedings, a judicial officer has the duty to exercise his discretion judicially. His decision will therefore not always be necessarily dependant on the attitude of the prosecution.
This is because, a public prosecutor is a court official whose duty includes assisting the Court to arrive at a just decision. This means that it is possible that even where he does not oppose an application, the Court can decide otherwise if it deems it fit to do so, on the basis of the law and facts placed before it.
It is therefore my view that any suggestion to the contrary would mean that the Court is merely there to act as a rubber stamp. This being the case, the question whether or not the magistrate was given any reasons why the application was unopposed would not take this matter any further. For these reasons, my finding on this question will depend on the other circumstances of the case(s).
I turn to deal with the issue whether or not the Court should have granted the applications for the reason that the charges in question were not under Section 14 but under Section 8 of the Act. Section 8 provides as follows:-
“A person who knowingly tampers with, alters or carries out repairs on, or subject to subsection (2), repairs or assists in the tampering with, an alteration or repair of a motor vehicle or the engine of any part of a motor vehicle, engine or part, is guilty of an offence and on conviction is liable to imprisonment for 9 years and to a fine of M15,000.”
Section 14 (1) on the other hand provides as follows:-
“Any police officer may, without a warrant, stop, arrest and search any person found driving or in possession, or in charge, or control of a motor vehicle if he believes, on reasonable grounds, that the vehicle is a stolen vehicle, whether or not that person has stolen it himself, or received it knowing or having reason to believe it to be stolen, or has assisted in stealing the vehicle, and may seize the vehicle and any documents relating to it.”
Subsection (3) (which is the one in issue herein) in turn reads as follows:-
“Where a motor vehicle seized under this section is taken before a court for the purpose of a prosecution in respect thereof, the court shall not release such vehicle until the conclusion of any such prosecution, and unless, within 6 months of the date of such conclusion, or date of seizure of the vehicle, whichever is the later, application is made for such release supported by satisfactory documentary proof of lawful ownership or lawful possession thereof, and if, at the conclusion of such period of 6 months the vehicle remains unclaimed it shall be handed back to the police to be dealt with as an unclaimed vehicle in accordance with the provisions of section 19.” (My underlining)
It is however common cause that although the applications were unopposed, during the proceedings the magistrate’s attention was brought to the provisions of section 14 of the Act, on the basis of which he refused the application. In my opinion, the wording of sections 8 and 14 suggest that they were meant to deal with two different scenarios, the one dealing with the issue of
tampering and/or altering of a motor vehicle whereas the other deals with the question of search and seizure upon reasonable suspicion of theft. Theft is dealt with under section 3 of this Act.
It is also my opinion, that per the words I have underlined above, if the issue of seizure of a motor vehicle was meant to apply to each and every offence under this act, section 14 (3) would not have been specifically confined to ‘motor vehicles seized under this section’. Rather, it would have been couched in more general terms such as ‘motor vehicles seized under this Act’.
Secondly, if the legislature intended the provisions of Section 14 (3) to be more general in their application, then the subsection would have been a section standing on its own and not a subsection to and making reference to a specific section. Whilst it could be argued (it was not) that reasonable grounds for suspecting that theft occurred can include where a vehicle has been tampered
with, I am of the view that in those circumstances, this would have to be specifically alleged and/or stated in the charge. This was not the position in casu.
The reason for my so saying is that the fact of theft cannot be presumed as a matter of course from the fact of tampering/altering because it is my view that, that is not the only inference that can be drawn. I must hasten to add that I should not to be understood to be suggesting that tampering/altering and theft are mutually exclusive of each other. As a matter of fact, an inference can be read from the fact of tampering that theft has occurred. But it is my opinion that, that would in turn beg the question, is that the only inference that can be so drawn?
It is my firm belief that before that question can be answered, two other questions come up to wit, at what stage would the theft have occurred? Was it at the time or long before the motor vehicle came into the possession of the present owner? This is especially pertinent because in casu, appellants produced all the necessary documents proving ownership before the court and their authenticity was not in issue.
In my view, the minute the Court has to ask itself all the above questions means that more than one inference can be drawn from the fact of tampering/altering with theft just being one of them. This being the case, I am of the view that the police would in
turn be required to categorically state that their suspicion that theft might have occurred is based on the very fact of tampering in which event, the provisions of section 14 (3) would then come into play.
In other words, when this has not happened as obtains in casu, I think that finding otherwise would be proceeding on the basis of speculation and not theft which would be improper for the Court to do specially where there is a specific section that deals with the issue of tampering/altering and what measures should be taken under such circumstances.
In his reasons for his finding, the learned Magistrate stated inter alia that:-
“In the entire statute it is section 14 only that deals with search, seizure and arrest. It would be had (sic) law to assume that police are not entitled to search, seize and arrest in respect of any other offence if it does not constitute theft of a Motor Vehicle or parts of a Motor Vehicle.”
For a minute, I was attracted to this line of reasoning but then it immediately came to my mind that the said search, seizure and arrest is sanctioned without a warrant where a police officer suspects theft to have occurred which would imply that someone else
could be claiming to be the lawful owner.
The other sections on the other hand deal with other types of offences which do not necessarily constitute theft and the possibility of there being other claimants that would necessitate seizure and keeping of the vehicle in custody until the matter is disposed of. I have already shown that the sections in questions are not necessarily mutually exclusive. In other words, they can apply
together in certain situations. However, whereas tampering can be an element of theft, theft would not as a matter of course entail
tampering/altering. That is why it is my view that where the element of theft is suspected, it would have to be clearly alleged in the charge.
In other words, the learned Magistrate’s fear can be taken care of by the relevant police officer invoking the two (2) sections, upon good cause shown. Otherwise, as matters now stand, I do not believe that theft can simply be presumed on the basis of tampering per se especially since and as it was rightly pointed out by Mr. Ratau, both appellants submitted the relevant paperwork which I agree presumes that the person in whose names a vehicle is registered is the lawful owner.
In light of the above reasons, I find that the provisions of section 14 (3) of the Act were incorrectly invoked in casu and that as a result, appellants have made out their case for the relief sought on the basis of the above issues alone. Consequently, I do not think it would be prudent for me to proceed to consider the other issues in what would in my opinion be simply a time consuming academic exercise.
I accordingly uphold the appeals as prayed with costs.
N. MAJARA
JUDGE
For appellants : Mr. Ratau
For respondent : Ms Ngcobo
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