1

CIV/APN/349/98

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

NTHEBERE
PHOLOSA APPLICANT

and

OFFICER
COMMANDING BUTHA BUTHE 1ST RESPONDENT

PUBLIC
PROSECUTOR 2ND RESPONDENT

THE
ATTORNEY GENERAL 3RD RESPONDENT

JUDGMENT

For the
Applicant : Mr. Teele

For the
Respondents : Mr. Mapetla

Delivered
by the Honourable Mr Justice T. Monapathi on the 12th day of May
2000.

Applicant's
vehicle had been detained since June 1998. Consequently this
application was filed on the 2nd September 1998 and later served on
the First

2

Respondent on the 10th September 1998. No charge had been preferred
against this Applicant hence his claiming that the vehicle would
deteriorate and that its detention was no longer purposeful.

The
Applicant may have possessed the vehicle in question unlawfully and
the documentation thereof could be dubious as it is most of the
times, thus inclining police, for good reason, to strongly suspect
that an applicant's possession was unlawful. Even in extreme cases of
that kind I have concluded that there was no onus on applicant to
prove that his possession was lawful. It is because even if it was
not so it would not be the answer to an indefinite detention of a
suspect's vehicle without a charge being preferred. Indeed even if
the Crown was able to persuade the Court that the possession was
unlawful (which attempts are often done half-heartedly) the question
would still revolve around the Respondent's inability to prosecute
(as at present) and thus rendering the intention to have the vehicle
as an exhibit unconvincing.

Once no
charge was being preferred against Applicant in this case since June
1998, a case was made as a result that the effect of the detention
was to make the vehicle deteriorate and that the detention was
obviously not being purposeful and therefore not good.

3

The Court
ordered that the vehicle be released to the Applicant and costs of
the application be paid to the Applicant.

Things
connected with theft of vehicles appear to require regulation by a
special Act of Parliament.

T
MONAPATHI

JUDGE

12th May
2000