CIV/APN/175/88
IN THE HIGH COURT OF LESOTHO
In the matter of:
JOSEPH TELEKO MOSAO Applicant
v
THE COMMISSIONER OF POLICE 1st Respondent
THE ATTORNEY-GENERAL N.O. 2nd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 24th day of October, 1988
The applicant has applied by Notice of Motion for the release of three motor vehicles and their documents and keys at present held by the Maseru police.
The vehicles are a Mercedes Benz truck registered number E1660, a white Datsun van registered number AA 300 and a blue Toyota von registered number OW 914. These vehicles were seized from the residence of the applicant on 7 April 19 88 on the grounds that they were suspected to be stolen property.
This present application was filed by the applicant on 27 May 1988 requesting that the respondents give notice of intention to oppose
(if any) before 13 July. At that time no criminal charges had been preferred against the applicant.
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On 7 June 1988 the applicant was taken before a magistrate in Maseru charged on two counts. The first was for theft of a motor vehicle registered number ND 328105, which is not one of the three vehicles that we are here concerned with. The second count was for unlawful possession of a motor vehicle registration number E 1660, which is . the first vehicle referred to above, the Mercedes Benz truck, though it is not so described in the charge
On 13 June the Attorney-General filed a Notice of Intention to Oppose in the present case. No charges have so far been preferred in connection with the other two vehicles, the vans.
On 16 August this application was set down for hearing on 18 October. Before that date arrived, on 5 September, the public prosecutor asked the magistrate to strike the criminal charge off the Roll and this was done. Thus, when this application came up before me for hearing on 18 October there were no criminal charges standing against the applicant in relation to any of the three motor vehicles.
In the respondents Answering Affidavit there were contained affidavits of five police officers. Two of these. Major Khoza and Major Tlali, stated that they were the CID investigating officers in this case. The other three were all S.A.P. officers from Ladybrand, W.O. de Waal, Sergeant Kramer and Detective Constable Jagga all of the Motor Vehicle Theft Branch.
The two RLMP officers stated that, on information received, they believed the three vehicles to have been stolen and that was the reason why they were seized. The three SAP officers claimed to be experts but their affidavits were very inadequate. They did not state what
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were their mechanical or engineering qualifications nor the length of their experience in the examination of stolen motor vehicles which could entitle them to justify their claims that they were experts.
Sgt Kramer stated that he examined the first vehicle, registered number E 1660. He did not give any description identifying the type and make of vehicle nor did he mention the date and place where he examined it, nor who was present at the time. His sole finding was "that the vehicle had been tampered with." He made no attempt to describe in what way it had been tampered with and I find, this affidavit to be quite useless.
W.O. de Waal stated that he examined a white Datsun van registered number AA 300. He did not say when or where he saw the vehicle nor who was present at the time. His sole finding was that the vehicle "had been tampered with upon the engine and the chassis." He did not explain or describe in what way it had been tampered with and I find this affidavit also to be of no assistance to the Court or indeed anyone else.
Det. Constable Jagga did not bother to state or describe which vehicle he examined nor when or where he saw it. He too merely found that "the engine and chassis numbers had been tampered with." There was no explanation of what he meant by tampering with these numbers. It would seem from Major Khoza's affidavit that this constable examined the third vehicle, the van registered number OW 914,
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though why the constable could not say so in his affidavit was not revealed. It does not seem to be very competent.
In my opinion none of these police officers is shown to be an expert in anything relevant here and their affidavits are of no real value or assistance to the Court in this matter. No documents concerning these vehicles were exhibited and there was no convincing indication that the vehicles were or might have been stolen.
Since the charge with regard to the first vehicle was withdrawn last month, and no charges have been brought against the plaintiff with regard to the other two vehicles, it would appear that the Maseru Police also do not find the so-called evidence of these SAP officers of any great assistance or support in making out a case for the prosecution of the applicant.
Mr Mohapi for the respondents tried hard in Court to make bricks without straw. He submitted that the case was still being investigated and that the vehicles had not been detained for very long (over six months in fact). However, there was no indication given that any other evidence was likely to be discovered nor that it is proposed to bring any specific charges against the applicant in this matter.
In a similar case which came before the Court of Appeal in January. 1987, Ikaneng Makakole v The Officer Commanding CID Maseru & the Attorney-General C of A (Civ) No. 18/85, (unreported) Miller J.A. said:
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Moreover, no prosecutions have been instituted in respect of any offence concerning the car during the lengthy period that has elapsed since the police took possession of it. There does not appear to be any justification for the continued detention thereof. It must be recognised that the statutory provisions relating to detention of property generally anticipate prosecution for a relevant offence. The result of the prosecution might, and usually does, determine the fate of the detained property which might be ordered by the Court to be forfeited to the state or, in the event of the prosecution ending in an acquittal, to be returned to the person from whom it was taken for detention. In short, what was visualized by the legislative was purposeful detention.. If a stage is reached when the detention appears no longer to be purposeful, there can surely be no point in continued detention of the property.
In my opinion that closely describes the situation in the present case. There are no pending charges against the applicant concerning these three vehicles and it would appear that there are none likely to be brought against him in the foreseable future. Thus their detention is not purposeful and so it cannot be allowed to continue.
Accordingly this application is allowed and the respondents must now release to the applicant the three
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vehicles identified in the Notice of Motion together with their keys and documents. The applicant is to receive his costs in this application.
P. A. P. J. ALLEN
JUDGE
24 October 1988
Mr Phafane for the applicant
Mr Mohapi for the respondents
