CIV/APN/293/94

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

KHOJANE
BOHLOKO APPLICANT

v

COMMISSIONER
OF POLICE 1ST RESPONDENT

THE
ATTORNEY GENERAL 2ND RESPONDENT

JUDGMENT

Delivered
by The Honourable Mr. Justice T. Monapathi on the 21st day of August,
1995

The First
Respondent's deponent TSELISO JOHN MONYOBI (Monyobi) was a police
officer of the Royal Lesotho Mounted Police, under the
First
Respondent, stationed at Roma. At the material time he held the rank
of a sergeant. He was the investigating officer in connection
with
the seizure and impoundment of the Applicant's vehicle which is
disputed in this application. In his answering affidavit he
denies
that the seizure of the Applicant's vehicle registration CE 34137 was
unlawful. He stated further that the vehicle did not
belong to the
Applicant. It was however not denied that the vehicle was seized from
the

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Applicant
during or about March 1991.

Monyobi
goes further to say' in paragraph 6 of the answering affidavit that:
"....the said vehicle was seized by his officers
after obtaining
credible information that. the said vehicle was stolen property"
". Furthermore, that the Applicant had
denied ownership of the
vehicle and informed Monyobi and his fellow officers that the vehicle
belonged to his friends from Soweto,
who had left it with him as
security for the loan of Three Thousand Rand (R3,000.00) which he had
advanced to those friends. Monyobi
became most surprised that the
Applicant was (in these proceedings) claiming the vehicle as his
property because he (Applicant)
had failed to produce any documents'
relating thereto and had alleged that the vehicle did not belong to
him.

Monyobi
clearly admits that the Applicant had not been charged as at the date
of the 24th October 1994 when he deposed to his affidavit.
His reason
was that the Applicant had informed Monyobi and his fellow officers
that the vehicle did not belong to. him. The vehicle
was therefore
seized awaiting the Applicant to bring his friend from Soweto whom
the Applicant alleged was the true owner of the
vehicle. Monyobi
denied that the detention of the vehicle has lost purpose "as we
still await its claimant."

3

I have
reasons to underline the quoted portion which is found at paragraph 7
of the Answering Affidavit. One of the reasons is that
it does not
make sense.

I did not
find it difficult to believe the Applicant. If it was true that the
deponent had credible information that the vehicle
was stolen such
information would have been the information upon which the Applicant
would have been liable to be charged. At least
he would be charged as
the person who was in unlawful possession of the vehicle in
contravention of section 343 of the Criminal
Procedure and Evidence
Act 1981. The section reads:

"343 Any person who is found in possession of any goods other
than stock or produce as defined in the Stock Theft Proclamation

1921, in regard to which there is reasonable suspicion that they have
been stolen and is unable to give a satisfactory account
of the
possession, is guilty of an offence and liable to the penalties which
may be imposed on a conviction of theft."

Alternatively
the Applicant would have been charged with outright theft if this
alleged credible information really suggested anything
of that
nature. It is fair therefore to suspect that the Respondents had an
unsound or a less than

4

honourable
reason for not charging the Applicant. Indeed the Respondents were
content not to disclose any facts or circumstances
with which to seek
to persuade this Court of the basis or nature of this alleged
credible information. If such information was
disclosed one would
then have been inclined to take the next step being to think
seriously about the submission by the Applicant
that "in any
event the alleged credible information is but hearsay which is
inadmissible and I shall ask my Counsel to ask
the Honourable Court
to expunge". But now the question is what are these facts or
information that I am being asked to expunge?
If it is the bold
statement of Monyobi about the existence of credible information I
have no hesitation in pronouncing, and declaring
the statement as
being of no value.

In their
reply the Respondents clearly do not appreciate the need for
sufficiency of evidence even in application proceedings. It
is on the
basis of some facts or information that the Respondents (as
Respondents} may ask the Court to find for them or reject
the
Applicant's story. It is on the basis of such allegedly credible
information that the Respondents felt that they were entitled
to hold
on to the vehicle and detain it for the period of three and half
years without charging the Applicant or releasing the
vehicle to him.
I find that the

5

detention
was not purposeful. The period of detention of the vehicle was too
long and the delay was unreasonable Justice delayed
is justice
denied. The police know that they are duty bound to respect the
liberty, life and property of people. The police and
the Courts are
entitled to hold to the property of a suspect: "so long as may
be necessary for purposes of any examination,
investigation, trial or
inquiry .... see section 174(4) of the Constitution of Lesotho under
the heading Freedom from Arbitrary
seizure of property" as
quoted by Maqutu J in KEKELETSO MOKOKOANA vs O/C POLICE AND ANOTHER
CIV/APN/144/94 3rd March 1995
(unreported). But there was yet another
reason for the detention of this vehicle that seemed to be unrelated
to the desire of the
Respondents to charge the Applicant for some or
any of the offences known to our criminal law and procedure. It was
that the vehicle
belonged to the First Respondent in terms of the
law, It having been forfeited to the Respondent,

This
attitude of the Respondents that the vehicle ought not to be released
to the Applicant, it having been lawfully detained persists
even in
responses to paragraph 7 and 8 of the Applicant's affidavit. The
paragraphs read as follows :

"7

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I wish to inform the Court that I have purchased this motor vehicle
from one L. H. MANYIKE of Cape Town in whose names it is registered

as appears from registration documents and change of ownership form
hereto annexed and marked "A" and "B"
respectively.

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I had not yet effected formal change of ownership in as much as the
motor vehicle was seized as shown above within two weeks of
my
payment of final instalment of the purchase price thereof."

This is
merely denied by the Respondent who refer to their previous answers
to paragraph 6 and 7 of the Applicant's founding affidavit.
This was
extremely unhelpful. One would have expected that the above quoted
paragraphs would have been met by the credible information
which the
Respondents threatened that they had in their possession. But that
was not to be. For that matter it might have even
been that the
statements are paragraphs 7 and 8 of the Applicant's affidavit were
untrue on a balance of probabilities. But, now,
without the slightest
indication as to what the credible information would be how was this
Court expected to disbelieve the Applicant?
It is too

7

clear
therefore that the basis upon which this Court was being asked to
believe that prosecution was still intended, or alternatively
that
the Respondents were bona fide in their continued detention of the
vehicle, was hollow and unrealistic.

The other
answer by the Respondents was that the Applicant was still expected
by Respondents to bring his friends from Soweto, only
after that
would necessary steps be taken. There are three questions to this.
The first one is whether the Applicant bore the onus
of proving that
he was entitled to possess the vehicle when the vehicle was already
detained and prosecution intended? The second
one is whether the
Respondents were honest and bona fide" in expecting the
Applicant, still, to. come up and bring his friends
from Soweto?
Thirdly once the Respondents had decided and did forfeit the vehicle
to themselves would it be an honestly held expectation
that the
Applicant was still to bring forward his friends from Soweto? Did the
Respondents genuinely expect the Applicant to prove
that he was
lawfully entitled to possess the vehicle, which the First Respondent
now called his own, by reason of the alleged forfeiture?
I took the
view that the Respondents' attitude was a bit impertinent.

One of
the replies to paragraph 9 was very

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interesting.
It was to the effect that the Applicant had no locus standi to sue in
respect of the vehicle inasmuch as he had clearly
stated that the
vehicle did not belong to him. Furthermore that his right of lien had
since been vitiated by the fact that the
vehicle was suspected to be
stolen thus entitling the police to seize it. I have already stated
that I would in the absence of
credible information to the contrary,
conclude that the Applicant was entitled to possess the vehicle. He
was therefore a bona
fide possessor. "That being so he was, at
the time of taking the car from him by the police a bona fide
possessor thereof.
He would as such have an interest and right in
respect of this car, he need not need to establish ownership in order
to have necessary
locus standi' for claiming the relief sought by
him." IKANENG MAKAKOLE vs THE OFFICER COMMANDING & ANO. C OF
A (CIV) NO.
18/85 per Miller JA at page 3. I do not think the Counsel
for the Respondents rightly appreciated the significance of the fact
that the vehicle has been obtained from possession of the Applicant
who had a title in law to if based on that possession. It need
not
have been ownership strictly speaking.

The value
of my speech so far, if for anything else, has been to show the
Respondents' unwholesome attitude towards the real purpose
of the
detention of vehicles."

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That they
saw no need and had no willingness to prosecute the Applicant.
Furthermore the lackadaisical nature of the investigation
(if there
was any investigation at all) of the suspectedly stolen vehicle has
been demonstrated by the conduct of the Respondents
themselves.

The
Applicant deposed to that on or about the 24th September 1994 he saw
the vehicle being unlawfully used by the officers of the
First
Respondent stationed at the Police Headquarters, to convey what
appeared to be household property from Maseru and taking
the
direction of Mohale's Hoek. Furthermore that the vehicle was bearing
a false government registration number X1078. Ever since
the
mentioned date, the officers of the First Respondent were
continuously using the motor vehicle under different false government

registration numbers apparently with a view to disguising the
vehicle. The Applicant felt, as he opined, that the Respondent would

have no right in law to use the vehicle in the manner described or at
all, the use being prejudicial and therefore calling for
an urgent
seeking of the Order sought in the application. To this the only
denial and admission that is issuable is the one contained
in
paragraph 10 of the answering affidavit of Monyobi which is that :

"10

10

Ad paragraph 10 thereof

It is denied that the use of different number is intended in any
manner whatsoever to disguise the vehicle's identity. As stated
above
the vehicle has now been lawfully forfeited to the State and there
would therefore be no point in disguising its identity
at all."
(my underlining)

I did not
understand nor could I accept that it would have been lawful for the
Respondents to have forfeited the vehicle without
notice to the
Applicant. The reason is that he was a bona fide possessor. There was
therefore a need to give him notice. This is
besides whether the
reason for forfeiting the seized property was a good or bad one. "The
Police Officials who are in possession
of seized articles deal with
them according to circumstances ........ If no person may lawfully
possess the article or the police
official concerned does not know of
any person who may lawfully possess it, the article is forfeited to
the State." See the
Law of South Africa Vol. 5 (W A JOUBERT) 2nd
Edition part 2 paragraph 18 5 page 134. See also the immensely
helpful judgment in
DATNISS MOTORS (MIDLANDS) PTY LTD vs MINISTER OF
LAW AND ORDER 1988(1) SA 503(N) on the interpretation of section 20
of Criminal
Procedure Act 51 of 1977 or disposal by police of goods
suspectedly stolen.

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The
Datniss Motors Case has guided me to conclude that if no prosecution
(as in the instant matter) is instituted the object seized
has to be
returned to the person from whom it has been seized, unless that
person's possession of the object would be unlawful.
The onus is on
the State to show on the balance of probabilities that the person
from whom the object had been seized may not legally
possess it and
is therefore not entitled to its return. (See also DOOKIE vs MINISTER
OF LAW AND ORDER 1991(2) SALR 153(D).

After
giving proper consideration, due weight and attention to the factors
bearing on the seizure of the vehicle in question I became
satisfied
that forfeiture of the vehicle could not be reconciled with
requirements of section 53(2) of the Criminal Procedure and
Evidence
Act of 1981 in that ;

1. the
   Applicant is the person who would "lawfully possess the
   article" and

   
   

2. the
   policeman concerned knew of the person who would "lawfully
   possess such article. "

   
   

The
problem of the proper person to possess the vehicle was made light
and easy by the demonstrated unwillingness by

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the
police to investigate the matter adequately. I did not have a problem
in declaring the Applicant to have been the person who
could lawfully
possess the vehicle. The Crown was not entitled to forfeit the
vehicle. The forfeiture was unlawful.

The
Counsel for the Crown did not attach importance to the need for there
to have been a notice to the Applicant and for an order
of forfeiture
by the Clerk of Court or Registrar of High Court. Such an order of
Court (showing the date on which it was made)
should have been
produced. Its absence was amply demonstrated by the fact that the
date of forfeiture of the vehicle was not even
stated.

I had no
hesitation in granting prayers (a) (b) and (c) of the Applicant's
notice of motion, thereby allowing the application.

T.
MONAPATHI

JUDGE

21st
August, 1995

For the
Applicant : Adv. S. Phafane

For the
Respondents : Adv. M. Mapetla