CIV/APN/492/07

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

MAKEAKEA
LETHAHA 1^ST
APPLICANT

LETSEMA
LELOSA 2^ND
APPLICANT

and

THE
MAGISTRATE BUTHA-BUTHE 1^ST
RESPONDENT

THE
SENIOR CLERK OF COURT 2^ND
RESPONDENT

THE
OFFICER COMMANDING POLICE

BUTHA-BUTHE 3^RD
RESPONDENT

THE
DIRECTOR OF PUBLIC

PROSECUTIONS 4^TH
RESPONDENT

THE
ATTORNEY GENERAL 5^TH
RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 29^th
November 2007

This is an application for
review of proceedings in which 1^st
respondent ordered the re-seizure of applicants’ vehicles from
their possession respectively. The vehicles had previously
been
released to them under unclear circumstances for the reason that
their earlier application in that regard had been refused
whereupon
they had appealed to this Court.

From the facts, it would appear
that while the judgment of this Court in that regard was still
pending, 1^st
respondent released the vehicles to applicants thereby rendering the
order of this Court effectively redundant. However much I
find this
fact disconcerting and unnerving, the truth of the matter is that it
is not the issue for determination herein. Suffice
it to say that I
hope and pray that there exists a logical, reasonable and indeed
legal explanation for this state of affairs.
I will leave it at
that.

In the present application
before this Court, it is applicants’ case that 1^st
respondent never gave them the opportunity to be heard before he
ordered that their vehicles should be re-seized and that this
was
contrary to the audi
alteram partem
principle.

The gist of applicants’
case is contained in the founding affidavit deposed to by 1^st
applicant especially at paragraph 5 (i) to (n) respectively where he
avers as follows:-

i)

“On the 24^th
September 2007, when we attended remands, we were shocked when the
prosecutor applied for an order before the first respondent
that our
motor vehicles aforesaid be re-seized as he had complainants who
claimed the vehicles to be theirs.

j)

The prosecutor was assisted
by a lawyer whom we later learned was Mr. Sooknanan. The submissions
were presented in the English
Language and we could not appreciate
clearly what was being said.

k)

We only heard when the
learned magistrate said we must come on the 27^th
of September 2007 to be informed of the ruling whether our vehicles
should or should not be re-seized and kept in police custody.

l)

On the 27^th
of September 2007, the ruling was not delivered however and we were
ordered to inform our counsel to arrange a date with the prosecutor

on Monday the 1^st
of October 2007 so that the same application that had already been
dealt with could be re-argued by the prosecutor and our counsel,
or
if possible, depending on our counsel’s prior arrangements, to
argue the application on the 1^st
October 2007.

m)

Before we could be informed
that the application would be re-argued, we had informed our counsel
what had happened on the 24^th
September 2007. I learned from him that he had talked to the
prosecutor and Mr. Sooknanan.

n)

On the 1^st
of October 2007 however, my counsel informed me that when he tried to
set the matter for re-argument he was informed by the prosecutor
that
on order to the effect that our vehicles be re-seized had been issued
because we did not go to court.”

In their opposing papers,
respondents raised the following points in limine;

Applicants are guilty of
non-disclosure of material facts in that they failed to tell this
Court that complainants in the criminal
matter which is pending
before the magistrate regarding the subject matter herein had shown
the court a quo authentic original
copies of registration documents
from South Africa thus making it a new reality that the vehicles must
have been stolen and as
such this Court would not have granted the
interim rule as it did.

Secondly that the applicants
rely on untruths in deposing to the fact that they did not understand
what was happening in the court
a quo since (so respondents contend)
they understand the English language.

In response to the averments
quoted above, Mr. B.
Sooknanan filed an
affidavit in which he averred in parts and insofar as it is relevant
as follows:-

“The fact of the
matter is that I armed with original papers of the relevant motor
vehicles approached the Investigating Chief on
behalf of the
Complainants at Butha-Buthe Police station and together approached
the Prosecutor Mr. Mahanyele as to the fact that
we had original
documents of the motor vehicles and that therefore the Applicants had
now to be charged with the more serious offence
of theft.

Since the Applicants were
not present in Court on that day, we were asked to come to Court when
the applicants would be present
so that they could hear of the new
developments.

When the appropriate date
arrived I was present in Court representing the Complainants, the
public Prosecutor was present in Court
representing the Director of
Public Prosecutions together with the evidence he now had form the
Police to enable him to add the
charge of theft against the
Applicants.

I deny that I assisted the
prosecutor in his role as a Prosecutor. It is correct that throughout
the Prosecutor made his submissions
in Sesotho. I do understand
Sesotho…. So, I understand fully well that the Prosecutor
stated in Sesotho and I aver that
he intended to add the charge of
theft to the charge sheet and that would change his attitude to the
case entirely. He further
stated that since he had documentary proof
of adverse Claimants the matter became more serious and the continued
use by Applicants
who would now be the suspects for the theft would
prejudice the Complainants irreparably.

It is correct that the
Learned Magistrate in the absence of any protest or explanation given
by the Applicants did explain to them
in Sesotho that a ruling would
be made whether the vehicle (sic) should be reimpounted (sic) as an
exhibit, now that they were
to be charged with theft.

It is correct that on the
27^th
September 2007 no ruling was given by the Learned Magistrate but the
Court did mero muti (sic) the facetious arguments from being
put by
Applicants, in spite of them having been given a proper opportunity
to object embarked on a totally unnecessary exercise
of allowing them
an opportunity to bring their Counsel as they had been represented
before, to argue on their behalf if necessary.

It is correct that on the
1^st
October 2007 I arrived at the Magistrate Court at 8.00 am.….
I waited all day through lunch until 2h30 pm when the learned

Magistrate arrived apparently from Maputsoe. There was no sign of
presence from either both (sic) the accused/Applicants nor from
any
representative on their behalf. The Learned Magistrate then went on
to read his ruling to the effect that the vehicle should
be seized in
the light of the adverse claims and be kept in the appropriate
custody for purposes f (sic)
trial. In fact the Learned Magistrate should have ordered the arrest
of the Applicant/Accused (sic)
for having failed to attend Court on the 1^st
October 2007 this being a Criminal case …. I further aver
that the said vehicles were not seized because Applicant/Accused
did
not to (sic)
Court, but because the vehicles would be exhibits on the charge of
theft against the Applicant/Accused.”

Mr. Sooknanan
also added that the advice given to the Applicants/Accused that the
order to seize the vehicles and keep them in police custody
is
without merit or any basis in law. At paragraph 7 of his affidavit
he continues as follows:-

“I deny most
vehemently that the applicant/Accused were not afforded any hearing
at all….”

In response to the first point
in limine,
to wit; that applicants are guilty of non-disclosure of material
facts Mr. Teele
who appeared on their behalf made the submission that there is no
merit in this regard. He went on to state that in terms of High

Court Rule 50 (2) all that is required in an application for review
is for applicant to set out grounds and the facts upon which
he or
she relies to have the decision set aside or corrected. He added
that the fact alleged by respondents to have not been disclosed
by
applicants is not one of the grounds or circumstances required by the
rule.

It was Mr.
Teele’s
further submission that an applicant in review proceedings is not
expected to recount everything that took place in the proceedings

that he seeks to have set aside. Further that the allegation that
certain documents were produced by the alleged true owners would
be
with effect to the correctness and not the validity of the decision
and that correctness thereof is not in issue at this stage.

Insofar as the second point in
limine goes,
it was Counsel’s submission that this is not a point in limine
properly so called for the reason that it cannot dispose of this
matter and it also requires this Court to make credibility findings

without hearing evidence. Furthermore, that the question whether or
not applicants understand the Queen’s language is one
of fact
not to mention that it is based on assumptions which may very well be
inadequate and lacking in factual foundation.

In reply, Mr.
Sooknanan who also
filed an answering affidavit in these proceedings submitted that at
the time it granted the interim rule, this Court was
disadvantaged by
the lack of disclosure of material information as alluded to.

I now turn to deal with the
point regarding non-disclosure of material facts.

Authority is legion that in ex
parte applications
all material facts must be disclosed which might influence a Court in
coming to a decision. Secondly, the non-disclosure
or suppression of
facts need not be willful or mala
fide, to incur a
penalty. Lastly, the Court, if apprised of the true facts, has the
discretion to set aside the former order or to
preserve it. See the
case of Schlesinger v
Schlesinger 1979 (4) SA 342 at 349
and other authorities referred to therein.

Indeed, in their papers filed
of record in casu,
applicants did not mention the fact that at the hearing that
precipitated this application, documents evidencing registration
of
the vehicles the subject matter herein were produced before the Court
a quo. In this regard, the question for determination
by this Court
is whether the said fact is a material one for purposes of reaching a
decision in this application and that for that
reason it had to be
disclosed to this Court.

I have already stated that the
alleged material fact is that documents evincing true ownership of
the vehicles were produced in
the court a quo during proceedings.
This is not denied by applicants. It is also common cause that it is
on the basis of these
documents inter
alia, that the
application for re-seizure was moved before and was granted by 1^st
respondent. In other words, these documents were accepted as proof
in support of the application for re-seizure.

It should be remembered that in
this present application, applicants are not challenging the
correctness or otherwise of the decision
of the 1^st
respondent to order the re-seizure. That is to say, they are not
challenging the decision of the court a quo on the merits but
rather
on the procedure that it adopted before arriving at its decision.

It is therefore their case that
before deciding the application 1^st
respondent did not give them the opportunity to state their case and
that this constituted an irregularity that necessitates that
this
decision be set aside with the effect that they be allowed the chance
to address the Court in opposition to the application
of the crown.
That it is only after this has taken place that the court will be
able to make a properly informed decision based
on submissions from
both sides.

In the celebrated work on the
conduct of civil proceedings, Beck’s
Theory and Principles of Pleading in Civil Actions p 325,
in discussing review as a method of challenging proceedings of a
lower court the learned author Isaacs states as follows:-

“The term “review”
is capable of three distinct meanings. These meanings are set out in
the judgment of Innes CJ in
Johannesburg Consolidated Investment Co v
Johannesburg Town Council: “In its first and most usual
signification it denotes
the process by which, apart from appeal, the
proceedings of inferior courts of justice, both civil and criminal,
are brought before
this court in respect of grave irregularities
occurring during the course of such proceedings”….”

Without wasting precious time
discussing what other meaning(s) the term review signifies, suffice
it to say that on the pleadings
in
casu, it is within
this aforementioned meaning that applicants have sought recourse
before this Court. The learned author continues
as follows at page
326:-

“The grounds upon
which it is competent to bring the proceedings of inferior courts
under the review of a superior court are as follows;

1. Incompetency
   (sic) of
   the court in respect of the cause of action such as absence of
   jurisdiction.

   
   

2. Incompetency
   (sic)
   of the court in respect of the judicial officer such as that he or a
   near relative had an interest in the cause.

   
   

3. Malice
   or corruption on the part of the judicial officer.

   
   

4. Gross
   irregularity in the proceedings.

   
   

5. The
   admission of evidence which should not have been admitted or the
   rejection of evidence which should have been admitted.”

   
   

There is however a rider to the
setting aside of a decision on review on this ground, and that is,
the irregularity must be of such
a nature that it is calculated to
prejudice the party who complains.

In casu,
applicants are patently not alleging lack of jurisdiction of the
court a quo, malice, corruption or bias on its part or wrong

admission or rejection of evidence. Their case is based on the
alleged irregularity to the effect that they were denied a hearing
by
1^st
respondent and this was in contravention of the trite rules of
natural justice.

On the basis of the facts
before me, I am of the view that the alleged material fact had
nothing to do with this Court deciding
the procedural question of
gross irregularity, but is relevant to the merits in the court a quo
in its consideration of the application
for re-seizure of the
vehicles. It was for this reason not necessary for applicants to
disclose it to this Court for purposes
of its deciding whether or not
applicants were denied the opportunity to be heard. It has no
bearing at all on the question
of the irregularity or otherwise of
the procedure that was adopted by 1^st
respondent. As such, I find that this point was incorrectly taken
before this court and accordingly dismiss it.

As far as the second point is
concerned, i.e. whether or not applicants understand English and
could follow what was being said
in court on that day, I without
hesitation, find that it is not a point of law that could be properly
be raised in limine
for the simple fact that indeed, whether or not applicants are well
versed in English is a matter for evidence.

At any rate the issue of
language is not conclusive in the determination of whether or not a
party was given a proper opportunity
to be heard. It might even be
totally irrelevant in some case.

Over and above this, it is my
further opinion that this issue forms part of the merits of this
application for the reason that it
was raised in response to
applicants’ claim that they were not accorded a fair hearing in
that they were not given a chance
to respond and state their case in
opposition thereof. I will therefore come back to it at a later
stage.

On the merits, I’ve
already shown that applicants are alleging that they were not heard
by 1^st
respondent before he ordered the re-seizure of the vehicles herein.
Whilst the proper record of proceedings was not filed herein
due to
it allegedly having disappeared, both parties’ legal
representatives are agreed that the photocopied notes filed or
record
before this Court reflect the proceedings of that day.

It is trite that subordinate
courts are courts of record. For this reason, judicial officers’
notes as they are contained
therein are generally accepted as
reflecting the true picture of what transpired in the court a quo. I
will accordingly place
a lot of reliance of the submitted notes in
casu.

At page 43 of this Court’s
file which is which is one of the pages wherein the notes appear
towards the bottom of the page
are the following hand written words:-

“On 25/09/07 accused
is before court. P.P. Mr. Mahanyele informs the court that there is
a complainant in respect of the subject
matter. He says that he
intends to change the charge to theft. He says that Mr. Sooknanan
has been instructed by the complainant
to apply for re-seizure of the
vehicle to the custody of the police.

Mr. Sooknanan says that it
is correct that he has been instructed by complainant in this matter.

Court: The matter is
remanded to 27/09/07 for ruling in respect of re-seizure of vehicle,
to the custody of police.”

A signature, presumably
belonging to 1^st
respondent, is appended at the end thereof. The next page of the
same notes contains the following recording;-

“On 27/09/07 accused
is before court. Remand to 01/10/07 for hearing of the application
by the crown or set down of the hearing
of that application.

On 01/10/07 accused and his
lawyer are not before court. The crown renews the application they
had moved on 25/09/07. Accused was
remanded to this day before court
on 27/09/07. There is no explanation from him or his lawyer why they
are not before court. P.P
applies for granting of the application.

Court: Having heard Mr.
Mahanyele for the crown and having seen certificate of registration
in respect of the subject matter and
the defence having been given
ample opportunity to come to court and to respond to the application
and the defence having so failed
having known this day it is hereby
ordered that the white Toyota Hiace registration number A 4727 that
was earlier released to
the accused for safekeeping pending
finalization of the matter be re-seized and kept in the custody of
the Botha Bothe police pending
finalization of the matter.

Remanded in abstentia to
01/11/07 for set down.”

From the above quoted notes, it
is crystal clear that on the first occasion, i.e. The 25^th
September 2007 when the public prosecutor moved the application for
re-seizure though present in court, applicants were not given
the
opportunity to respond. Nowhere do the notes reflect this fact nor
what their response in this regard was if any. Obviously,
they did
not respond since the record says nothing about.

At paragraph 6 (a) of his
founding affidavit, 1^st
applicant avers that they were not afforded any hearing at all and
that after the prosecutor and Mr.
Sooknanan addressed
the court in motivation of their application for re-seizure, they
were simply informed to come on the 27^th
day of September 2007 to obtain a ruling without being given an
opportunity to reply to the prosecutor and Mr.
Sooknanan’s
addresses.

This is vehemently denied by
Mr. Sooknanan
both in his affidavit and submissions respectively, wherein he
contends that applicants understand the English language and were

given the opportunity to be heard as already quoted above from his
affidavit.

In any event, upon a proper
reading of the notes of the 25^th
I am unable to say with certainty that the application was even
properly moved before the court a quo. What seems to be the true

position is that the Court was informed of the prosecutor’s
intention to amend the charge to that of theft and that Mr.
Sookananan had been
instructed by the complainants to make the application. There is
nothing on the notes to show that either of them proceeded
to
actually move the application. But low and behold, 1^st
respondent remands the matter to a later date for
a ruling. I will
however proceed on the assumption that the application was made on
that date since both parties are agreed on this.

I further hasten to point out
that I cannot find anything on the face of the notes filed of record
that supports the contention
that the applicants were granted the
opportunity to oppose or address the court. Instead, what is
recorded by the court a quo
is their presence before the court, the
intention to move an application for re-seizure and the reservation
of the ruling to a
later date. In my opinion, the mere presence of a
party to proceedings is not synonymous with or does in itself mean
that he is
given the opportunity to be heard.

That fact should have been
clearly by the judicial officer and accordingly recorded, especially
where the accused are before the
Court in person without the benefit
of being represented by their counsel of record. In addition, it is
my view that if the court
had indeed invited them to address it in
response, surely that factor together with their response would
appear on the record.
In the absence of such proof, I have to accept
the submission that they were not given the chance to say anything.

I need not even state that the
duty of a judicial officer who is seized with a matter involving an
unrepresented accused person
goes beyond giving him a chance to
address the court which clearly did not happen on that day, he is
also enjoined to assist such
a person so as to try and counterbalance
the skewed scales resulting from the latter being pitched against
someone who is not only
well-conversant with court procedure, but is
confident enough for the reason that he is very familiar with the
court environment
such as a public prosecutor.

I also note with interest that
in his own words, Mr.
Sooknanan states:-

“It is correct that
the Learned Magistrate in
the absence of any protest or explanation by the Applicants did
explain to them in Sesotho that a ruling would be made whether the
vehicle should be impounded as an exhibit….”
(my underlining)

There is clearly no unequivocal
statement of fact that 1^st
respondent either invited or directed applicants to address him in
reply to the public prosecutor’s submission. Things might
have
been a little different if applicants had at least been asked to
address the Court even if this could have been done without
proper
assistance in that regard.

Interestingly enough this
matter did not end there. Came the 27^th
September 2007, 1^st
respondent did not deliver his ruling. Instead, he postponed the
matter to the 1^st
October 2007 to enable applicants to
bring their counsel to argue the application on their behalf.
Obviously, 1^st
respondent did this because he knew fully well that on the 25^th
September, 2007 he
had not given applicants a hearing contrary to submissions in denial
of this fact.

On this last occasion, it is
recorded that accused and their legal representative are not before
court without any explanation despite
their having been aware of this
date. 1^st
respondent then heard the application in their absence and proceeded
to grant the order sought. At 1^st
blush, this appears to have been perfectly in order for indeed it is
reflected that accused were warned to attend court on that
date with
their legal representative, alternatively to provide the court with
dates when the latter would be available for the
hearing of the
application.

However, I do not see anything
on 1^st
respondent’s notes that signifies that he tried to establish
whether applicants and/or their counsel were indeed before court.
It
is standard practice that before embarking on the drastic step of
proceeding in the absence of another party, a judicial officer
will
usually direct that their names be called out (usually three times by
a court orderly or other officer of the court) within
the court
premises. Upon being satisfied that they are indeed absent, then
proceed with the case. It is however imperative that
all this should
be recorded so that there is proof in case the absentee cries foul at
a later stage as is the case in the present
matter.

In casu,
this was even more crucial because 1^st
respondent only arrived at court in the afternoon of that day. This
is evinced by contents of paragraph 7 of the affidavit deposed
to by
Mr. Sooknanan
who averred as follows:-

“…I waited all
day through lunch until 2h30 pm when the Learned Magistrate arrived
apparently from Maputsoe. There was no sign of
presence from either
both the accused/Applicants nor (sic)
from their representative on their behalf. The learned Magistrate
then went on to read his ruling to the effect that ….”

For the reason that 1^st
respondent only arrived in the afternoon, I am of the firm opinion
that he should have been more understanding and indeed more
indulgent
in deciding what next step to take. His late arrival, with or
without good reason, should have served as a warning bell
that there
was a likelihood that applicants or and/or their representatives
could have been in attendance in the morning and decided
to leave in
light of his extended absence on that morning.

I am saying this well aware
that Mr. Sooknanan
avers in his affidavit that he personally did not see them. I
however, wish to add that certainly that is not enough. It is the

duty of the Court to embark on the exercise of ascertaining absence
of another party for a fact and not to simply rely on information

from the other side, for obvious reasons. I do not even see any
notes to the effect that 1^st
respondent asked anyone about the whereabouts of the other party more
especially, Mr. Mahanyele who is the prosecutor in this matter.

I cannot help but add that even
the notes from the court a quo reveal that this particular date and
indeed the first two were never
agreed with applicants’ counsel
which is the generally accepted way of doing things especially when
on the 1^st
occasion, applicants had been there for purposes of attending remands
only. Of course I fully recognize the duty and authority
of 1^st
respondent to ensure that proceedings come to a closure and within a
reasonable time. However, this particular case is surrounded
by too
many unsettling factors to have simply been treated in this fashion.

Needless to mention, in legal
terms, the expression is ‘a
fair hearing’,
the operative word being fair.
I do not even intend wasting time embarking on a jurisprudential
exercise of extrapolating the principles and dynamics surrounding
the
right to a fair trial/hearing. I will only stop at stating that this
right is a justiciable constitutional one from which
none of us
should willy-nilly derogate.

Interestingly enough, Counsel
for respondents unequivocally stated in his submissions that ‘in
any event there was no need for them to be heard’
this in reference to applicants, for the reason that amongst others,
once a person is charged with theft, clearly the subject matter
of
the theft becomes necessary evidence and hence exhibit in the matter.
To support his contention, Mr.
Sooknanan referred
extensively to the provisions of the Criminal
Procedure and Evidence Act of 1981
specifically sections
52 (c), 55 (1) and 55 (2).

The said sections deal
basically with the disposal powers of a police officer of an article
after seizure and how to deal with such
an article for purposes of
trial. While I appreciate that the vehicles in question will become
necessary evidence at the trial,
I am also cognizant that in
casu, matters had
gone well beyond the stage of search, seizure and disposal of an
article which is in the hands of a police officer.
The vehicles had
since been released to applicants, hence the application for
re-seizure. To this end, these provisions are therefore
not helpful.

This is the case even in the
light of the fact that the prosecutor intended to amend the charge on
the basis that he had been provided
with more evidence. However, it
is my view that the fact of the charge being amended to theft, which
in any event had not even
occurred at that stage, was not per
se, reason enough to
decide and indeed submit before this Court that applicants need not
even have been heard. The constitutional
presumption of innocence of
one until proven guilty is trite. Further, a fair hearing is never a
privilege but the right of every
citizen. Presiding officers should
therefore always be careful to jealously guard and protect it at all
costs.

It is for all these reasons
that I find that applicants have made out their case for the relief
sought in that indeed an irregularity
occurred in the form of their
not having been granted the opportunity to state their case in the
court a quo and that this was
prejudicial to them. I accordingly
grant the application as prayed for and confirm the rule with costs.

N.
MAJARA

JUDGE

For
applicants : Mr. M. Teele

For
respondents : Mr. B. Sooknanan