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CIV/APN/453/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between

ATTORNEY
GENERAL APPLICANT

and

PHAPANO
KHANYAPA 1ST RESPONDENT

BAHOLO
LESENYEHO (MAGISTRATE) 2ND RESPONDENT

JUDGEMENT

Delivered
by the Honourable Acting Judge Mr, T Monaoathi on the 15th day of
February. 1994

On the
6th November 1993, the Applicant obtained a Rule Nisi, containing the
following terms

"1 A Rule Nisi is hereby issue against the respondents
returnable on 15th November 1993. to show cause if any

3. The
   Officer Commanding or any designated police-officer shall not be
   authorised by this Court to seize forthwith a firearm 7 65
   serial
   number 655017 Auto Pistol Brono in the possession or control of the
   1st respondent and retain it in police custody until
   its production
   in Court as an exhbit in the preparatory examination relating to CR
   393/90 and thereafter to be dealt with in
   accordance with law

   
   

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3. Costs
   of suit only in the event of opposing this application

   
   

3. Dispensing
   with the Rules of Court and the normal practice and procedure
   regarding form and service on the grounds of urgency
   "

   
   

The
Respondents were duly served and the 1st Respondent then filed an
answering affidavit while the other Respondent did not The
Applicant
filed a Replying Affidavit The 2nd Respondent will presumably abide
by this Court's final judgement in this matter

It is
common cause that the first Respondent and his son Masitha were
charged with murder A Preparatory Examination had been held
and was
pending at all material times The proceedings had been carried on
under case number CR 393/90 of the Magistrate's Court
of Maseru

Sometimes
in August 1992, a firearm Auto Pistol Brumo, Calibre 7 65 Serial
Number 655071 was released to the 1st Respondent This
firearm is
alleged to be the murder weapon It is the circumstances of the
release of the firearm which have given rise to these
proceedings Mr
Ramodibeli the Attorney for the 1st Respondent said that the
application was misconceived and ought to be dismissed
with costs on
an Attorney and Client's scale He made certain submission in support
as will be shown in this judgment

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On the 26
th March 1992, the 1st Respondent filed an application before the
learned magistrate Mr Baholo Lesenyeho the 2nd Respondent
This was
under case number CC 448/92 of that Court The Order prayed for was
amongst others release of the firearm to which reference
has been
made hereinbefore The application was attached to the present
proceedings as annexure "C" to 1st Respondent's
Answering
Affidavit The application was opposed Opposing papers were filed
Argument was heard in Court The Court eventually ordered
for release
of the firearm It also appears that at the time of making the
application the charge against the 1st Respondent and
his son had
been withdrawn as long ago as the 26th September, 1991 It is to be
noted that the 1st Respondent's firearm is licensed
On the 26th
October 1993 a Preparatory Examination in the said CR 393/90 was to
commence The accused were before Court

It is
Paragraphs 15 and 16 of the affidavit Police Officer Sebohe Sakoane
(Sakoane) which correctly captures the mood and the concern
of the
Applicant (if it is to be believed)

"13

On the 26th October, 1993 a preparatory examination in the said CR
393/90 was to commence Five minutes before the Court proceedings
were
to take-off the public prosecutor in the matter, BUAXG MOTHAE was
informed by me that the firearm, the subject matter hereoi,
was
released to the 1st Respondent on the order of the 2nd respondent She
was

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astounded

16

Consequently, the preparatory examination could not be properly
conducted without the presence of the firearm and the proceedings
had
to be adjourned In fact it is unimaginable that the proceedings will
ever be continued in the absence of the firearm The absence
of the
firearm has wreaked havoc in the smooth administration of justice and
pulverised the due process of law I am informed add
verily believe
that despite a request made by the public prosecutor, BUANG MOTHAE,
the 1st respondent has refused to surrender
the firearm to the Crown
There is, therefore, a likelihood of the firearm disappearing, never
to be found This is the price the
Crown cannot afford to pay For
these reasons 1 consider this application as extremely urgent It is
submitted that the applicant
is justified in having approached this
Honourable Court on urgent ex-oarte basis "

Against
the history of the matter there is absolutely no reason why Miss
BUANG MOTHAE (MOTHAE) (the Public Prosecutor) had to be
astounded The
most important question is Armed with all the proceedings (which
ought to have been in her possession), why was she
astounded and only
about ten minute before the Court was to commence? I find that the
conduct of MOTHAE is difficult to believe
and is definitely
incredible One Cannot rule out mala fides This further lends
suspicion to that it must have been a stratagem
to justify the
Applicant's coming to this Court Most probably MOTHAE was covering up
for the criticism that should befall or be
directed at the way the
matter had previously been dealt with To be exact the criticism would
be why the gun

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had to be
released And yet there was nothing strange or unusual in that matter
It was above board Indeed Applicant was represented
by State Counsel
Mr Letsie This is even supported by the fact that this Court refused
to have the order concerning review to be
secured by Applicant on
application for a rule nisi Even if she was not a party to the
proceedings she must equally share the blame
(if there is any blame)
of her colleagues and fellow prosecutors The Affidavit of Mrs Ntsasa
clearly indicates (in her rebuttal
and in support of 1st Respondent)
that the suggestion at paragraph 8 of Mothae's Affidavit (about the
alleged disappearance of
the Court file) is untrue Mrs Ntsasa would
have no reason to hide anything

I am not
persuaded that the preparatory examination could not proceed in the
absence of the firearm It appears from the annexed
proceedings that
the preparatory examination was able to proceed on the following day
and on the 2nd November 1993, when the matter
was postponed to the
5th and the 6th November 19923 Even if I am wrong on the law, namely
that the absence of the gun would make
the proceedings a nullity, I
am not convinced that the conduct of the Respondent justified the
Applicant's coming to Court This
is the Court's concern now since the
question of review of the proceedings in CC448/92 has fallen by the
wayside This is even more
so where as now, the Public Prosecutor
wants to play down her role or to feign ignorance of what transpired

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towards
the release of the firearm I do not hesitate to make a definite
finding that MOTHAE and SAKOANE are mala fide and are guilty
of
serious non-disclosure

The
alleged refusal of the 1st Respondent to deliver the gun back for
handing in or identification purposes become difficult to
decide in
favour of the applicant when it is not recorded in the proceedings of
the preparatory examination itself It is alleged
that Mr Mapetla, the
Chief Magistrate, was asked to intervene at one time But this comes
out for the first time in the Applicant's
replying affidavit and only
in reply to 1st Respondent's paragraph 15 I had to reproduce the
whole paragraph to give a correct
picture which is self-explanatory

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AD PARAGRAPH 15 OF THE FIRST RESPONDENT S AFFIDAVIT

The preparatory examination could not be proceeded with on the 26th
of October, 1993 for identification purposes It was only on
the 27th
October after further verbal discussions with Mr Mapetla, myself and
Mr Ramodibedi that the preparatory examination proceeded
and the
firearm was produced for identification purposes This arrangement of
the accused producing the firearm was very unsatisfactory
because the
prosecutor could not have been able to produce it as an exhibit and
that is why I had to approach this Honourable Court
I submit that it
is in the interests of justice that the firearm should be kept by the
Crown till such time that the murder case
against the accused has
reached finality and the weapon is dealt with in accordance with law
"

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On the basis of my above comments I do not find that the 1st
Respondent or his Attorney was difficult or recalcitrant On the
other,
hand it does seem that there was agreement all along to have
the gun produced in Court for identification purposes I am not
suggesting
that the agreement was valid in terms of the Criminal
Procedure and Evidence Act 1981 What seems most important is the
attitude
of the people involved Furthermore it does not appear that
at that time there was a clear or sharp disagreement or any amount of

insistence on the part of the Crown Even if I am wrong another
question still remains to be addressed? Did the Magistrate have
or
did he not have the power to order 1st Respondent to deliver the
firearm to him either at the instance of the Public Prosecutor
or
under a search and seizure warrant I believe he had such power The
1st Respondent argues in the circumstances, that this Court
had no
jurisdiction or rather that the application was wrongly bought before
this Court This question is inextricably tied up with
another
question Whether the Magistrate was still seized with the matter of
the proceedings in which the firearm was an object
(or alleged murder
weapon)

I have
taken the view that the magistrate was still empowered to order the
1st Respondent to produce the firearm in Court on the
risk of being
taken up for contempt of Court should

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he refuse
to comply with the Magistrate's Order There was no reason therefore
that entitled Applicant to launch the application
This exercise was
an abuse of process of Court When the totality of all circumstances
is taken into account there was no serious
cause for the application

I am not
so sure that the Mr Ramodibedi is correct that the Attorney General
ought not to have brought the proceedings in his name
on the ground
of lack of capacity That, as it was submitted, it was the Director of
Public Prosecutions who should have brought
this proceedings on his
own behalf I think the matter should be looked at in another way This
were civil proceedings brought on
behalf of a government department
May be the Attorney General should have explained further that he is
taking the proceedings on
behalf of the Director of Public
Prosecutions Incidentally in the case number CC 448/92 (the First
Application) the 1st Respondent
did not cite the Director of Public
Prosecutions but the Attorney General I do not accept this complaint
as being significant It
was even surmised that the Director of Public
Prosecutions may not even have been consulted If he had been
consulted, it was submitted,
he could have filed his affidavit in
which he indicates his interest This point should not be carried any
further than that It
is not weighty and in any event nothing really
turns on it

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I do not
accept Mr Mohapi (for Applicants) submission that because the Chief
Justice did not grant the interim order for review
of the proceedings
in CC 448/92 or that because the Order for review was cancelled, the
1st should not be entitled to an order
for costs I found this
untenable In deciding the question whether the Applicant was entitled
to come to Court, the parties counsels
had to traverse each and every
aspect of the history, the facts and submissions in the proceedings
as shown clearly in the number
of issues contained in the papers This
was moreso because whether one liked it or not the validity or the
effect of the Magistrate's
Court's Order had to be debated It was
impossible to separate the issue of the Order for return of the
firearm without arguing
on the effect of the Order or the later
conduct of the public prosecutor, the magistrate and the 1st
Respondent

Mr Mohapi
submitted that, because at the time of the hearing of the matter the
firearm had already been handed over by the 1st Respondent
to the
Magistrate at the Preparatory Examination the application ought to
succeed He further contends that the 1st Respondent's
abiding by the
interim Court Order in handing over the firearm, was evidence of
validity or soundness of the application Not necessarily
Did the 1st
Respondent have any alternative? 1st Respondent was very wise to have
not refused to obey the Court Order For reasons
already

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stated I
took the view that 1st Respondent's conduct did not support the
argument Neither do I accept that the 1st Respondent has
to have
costs awarded against him The application was misconceived The
application ought not to have been launched

In the
premises I would order that the Rule Nisi is discharged with costs on
the ordinary scale to the 1st Respondent

T
MONAPATHI

ACTING
JUDGE

For the
Applicant Mr T J Mohapi (noted by Mr Letsie

For the
1st Respondent Mr M Ramodibedi (noted by Mr Metooane)