CIV/APN/71/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

TSEKO
KHASAKE Applicant

and

ATTORNEY
GENERAL 1st Respondent

OFFICER
COMMANDING C.I.D. (MOHALE'S HOEK) 2nd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 11th day of
September, 1989

This is
an application for an order directing the respondents to release
forthwith to the applicant a certain motor vehicle with
Reg. No. F
1283, the property of the appli­cant; and directing the
respondents to pay costs of this appli­cation.

It is
common cause that on the 3rd January, 1988 the appli­cant's
vehicle mentioned above was seized by the Mohale's Hoek C.I.D.
police
on suspicion or allegation that the applicant's brother one Molefi
Khasake used the same vehicle to murder one Oankie Sefuthi
with it.
The applicant and his said younger brother are jointly charged with
the murder of the said Jankie Sefuthi and one Joseph
Sefuthi.

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The
respondents are refusing to release the Said vehicle oh the ground
that it is going to be used as an exnibit in the double murder
trial
the applicant and his brother are facing.

It is the
applicant's contention that by refusing to release the table is the
respondents are acting unreasonably in as much as
they can easily
take photographs of the said vehicle and release it to him. He is
running a cafe at his home and is using that
vehicle in connection
with the said business. His family and that of his younger brother
rely wholly on the said business as a
means of their livelihood. The
applicant avers that they are likely to suffer irreparable harm by
the continued detention of his
motor vehicle.

The first
respondent has filed an affidavit in which he avers that the grant of
the order sought by the applicant would seriously
hamper the
administration of criminal justice because the article he asks this
Court to release to him will be used in evidence
at the trial of the
applicant and his brother on two counts of murder. He submits further
that the motor vehicle in question is
being retained lawfully in
police custody in terms of section 55 of the Criminal Procedure and
Evidence Act 1981.

Mr. Leaba
Thetsane is the Crown Counsel to whom the prose­cution of the
criminal trial against the applicant and his brother
has been
assigned. He avers that he has perused the docket relating to this
matter and has formed the opinion that there is a prima
facie against
the said applicant's brother on both counts of murder and

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against
the applicant on the count relating to the unlawful killing of the
deceased Joseph Sefuthi.

He
submits further that the evidence discloses that the motor vehicle in
question was used by the applicant's bother. Molefi Khasake.
in the
alleged murder of Jankie Sefuthi and that it was also used to inflict
certain bodily injuries on the. deceased- Joseph Sefuthi
before both
the applicant and Molefi Khasake finished him off The motor vehicle
in question was used as a weapon to inflict grievious
bodily harm
injuries on the two deceased persons and that it is going to be used
in the trial of the applicant and his brother.

The law
on this subject is clearly set out in our Criminal Procedure and
evidence act 1981 Mr. Pheko. attorney "for the applicant

conceded that as far as the law is concerned there is no doubt that
the 2nd respondent is keeping the vehicle lawfully. His attention
is
that the 2nd respondent is being unreasonable by refusing to take the
photographs of the vehicle and to release it to the applicant.
The
applicant is suffering extreme hardship, because his cafe business
cannot be operated without the vehicle. He submitted that
on the
principles of equity this Court must grant the application.

Section
55 (1) and (2) read as follows:

1. "If
   Criminal proceedings are instituted in con­nection with any
   article referred to in section 52 (c) and such article
   is required
   at the trial for the purposes of evidence or for the purposes of an
   order of Court, the police official con­cerned
   shall, subject to
   the provisions of sub­section (2), deliver such article to the
   Clerk of the Court where such Criminal proceedings
   are instituted or
   to the Registrar of the High Court, as the case may be.

   
   

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2. If
   it is by reason of the nature, bulk or value of the article in
   question impracticable or undesirable that the article should
   be
   delivered to the Clerk of the Court in terms of Sub-section (1), the
   Clerk of the court may require the police official concerned
   to
   retain the article in police custody or in such other custody as may
   be determined in terms of section 52 (c)."

   
   

There is
evidence before this Court that the 2nd respondent is keeping the
said vehicle per instructions of the clerk of court of
Mafeteng. Mr.
Mohapi, counsel for the respondents has submitter; that photographs
of the vehicle inquestion are secondary evidence
and that it would
not be just to force the Prosecution to pert with the vehicle because
it is the best evidence they have. Section
17 of the Evidence in
Civil Proceedings Proclamation No, 72 of 1830 reads as follows:

"Every party on whom in any case it shall be incumbent to prove
any fact, matter or thing, shall be bound to give the best
evidence
of which from its nature such fact, matter or thing shall he capable:
and no evidence as to any such fact, matter or thing
shall be
admissible in any case in which it was in the power of the party who
proposes to give such evidence to produce, or cause
to be produced,
Setter evidence as to such fact, matter or thing, except by consent
of the adverse party to the suit, or when such
adverse party shall by
law be preclu­ded from disputing any such fact matter or thing,
by reason of any admission proved to
have been made such party."

Be that
as it may my difficulty is with regard to the order of disposal that
the Court may be inclined to make at the end of the
trial if the
accused are convicted. In most criminal trials murder weapons are
never returned to the accused person if he is found
guilty. The usual
disposal order is to order that the

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weapon be
destroyed or be forfeited to the State. Firearms are usually
forfeited to the State. I do not know what the Court will
do with the
motor vehicle in question.

In a
recent case of R. V. M. Ramarou CRI/T/24/87 ( unreported) a motor car
was used to murder one person and to cause serious bodily
injuries to
another. Photographs of the vehicle were taken and the vehicle was
released to its owner who was not involved in the
commission of the
offence. In the present case the owner of the vehicle is involved in
the commi­ssion of the offence according
to the allegations by
the respondents. I am of the opinion that it would be unwise to
release the vehicle at this stage..

Regarding
equity our law seems to be very clear as stated in the case of
Lazarus v. Wessels, 1903 T.S. 509 where Sir James Rose-Innes
is
quoted as having said:

"The court cannot grant equitable relief, if by so doing it
would be going contrary to a well-defined principle of the
Roman-Dutch
Law, or to some statutory provision."

I think
in the present case the Court would be going contrary to the clear
provisions of sections 52 and 55 of the Criminal Procedure
and
Evidence Act 1981 if it granted this application.

In the
result the application is dismissed with costs.

J.L.
KHEOLA

JUDGE

11th
September, 1989.

For the
Applicant - Mr. Pheko

For the
Respondents - Mr. Mohapi.