CIV\APN\180\95

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

LETSIE
MALUMANE APPLICANT

and

OFFICER
COMMANDINGXMASERU POLICE 1ST RESPONDENT

ATTORNEY
GENERAL 2ND RESPONDENT

RULING

Delivered
by the Honourable Acting Mrs Justice J.K. Guni on the 19th day of
June, 1995

The
applicant in this matter is seeking a release to him by the Officer
Commanding , Maseru Police, of the motor vehicle registration
number
A3984, forthwith.

In his
affidavit applicant avers that he is the owner of the said motor
vehicle. Although the applicant does not indicate the date
on which
his motor vehicle was seized by the police, there seem to be no
dispute that the motor vehicle is in the custody of the
police, Since
December 1992,

Mr.
Vitalis Motlatsi, who filed answering affidavit on behalf of 1st
Respondent, avers that applicant's motor vehicle

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is going
to be used in a pending criminal case against this applicant and two
others. Respondent does not disclose under what law
he is holding on
that motor vehicle. The presumption properly made may be that the
motor vehicle of this applicant is being held
in terms of section 51
of CP & E Act No. 9 of 1981. The motor vehicle seized by police
in terms of section 51 CP & E Act
may also be disposed of by the
police officials in accordance with sections 52, 53 and 54 of the
said Act,

In this
case - the pending criminal case against the applicant and two others
- according to the Investigating officer Mr. Vitalis
Motlatsi,
investigations have long been completed. As to when the trial will
take place, it is the matter for those entrusted with
the
responsibility to prosecute. The Investigating Officer may during his
investigations collect as much material as he thinks
will be needed
to establish the case against the alleged perpetrator. The ultimate
decision of what will be used as evidence at
the trial must rest with
the law officer who is to carry out the prosecution. Having completed
the investigations the Investigating
Officer lias little if anything
at all, to do, with the making of the decision of what evidence will
be used. His responsibility
ended when he concluded his investigation
in that case. He may appear as a witness at the trial not playing any
other part.

By July
1993 Police had already completed their investigations. The law
officer who is to carry out the prosecution in this case
must have
been holding on the docket since that time when the police concluded
their investigations.

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It should
be the office of the officer charged with the responsibility to carry
out those prosecutions, who makes an affidavit spelling
out the
reasons for this undue delay in the bringing of the criminal case to
court. There is no affidavit from the law officer
who is handling or
is supposed to handle the prosecution in the criminal case. "Criminal
proceeding are the bed-rock on which
law and order and stability of
the society from which other human rights rests". This was said
by Mr. Justice W.C.M. Maqutu
in Nthabiseng Mamabula Holapo vs Officer
Commanding Maseru CID and Attorney General CIV\APN\280\92. It appears
from these cases
that for very quite a long time there has been great
reluctance to carry out prosecutions once auspecte are released on
bail. In
the matter of this application, the applicant has been
awaiting trial for approximately three (3) years or more.

Section
55 CP & E Act No.9 of 1981 stipulates the procedure to be
followed by the police officials after seizing articles that
are
going to be used as evidence in the trial. The relevant portions of
section 55 reads as follows; " (1) If criminal proceeding
are
instituted in connection with any article referred to in section 52
(c) and article is required at the trial for the purposes
of evidence
or for purposes of an order of court, the police official concerned
shall subject to the provisions of sub­section
(2) deliver such
article to the---------Registrar of the High Court."

The
Investigating Officer does not in his affidavit show in anyway that
the motor vehicle that is to be used in evidence is

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no longer
in the police hands but in the hands of the Registrar of the High
Court where that murder trial should take place. The
holding of the
property of the applicant by the police must be for a purpose. Mr.
Vitalis Motlatsi has spelled out that purpose
in his affidavit. Is it
enough to make such a bare allegation with regard to that intended
purpose? Some sort of action, some sort
of movement must be made
toward achieving that intended goal, i.e to make arrangements to
produce the article in court at the trial.
There should be steps
taken to show that there is going to be a trial.

Now after
3 years, is there still any reason to believe that there will ever be
a trial in which the applicant's motor vehicle will
be used as
evidence particularly bearing in mind that no reason has ever been
disclosed for this delay.

It is in
the common cause that the motor vehicle is exposed to the dangers
that may result in its loss. Why have those responsible
to carry out
the prosecution not been persuaded to do so timeously before the
motor vehicle ie lost if it can be lost anytime?
Does that attitude
indicate that they care to produce or use it as evidence at the
trial? I am afraid the answer to both questions
must be in the
negative.

Is there
justification for the further detention of the motor vehicle by the
police? The use of the motor vehicle seems

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to be
little or none in respect of the allegedly pending trial. The
certainty exists only as regards the loss that the applicant
will
incur as the motor vehicle is left to deteriorate and perhaps be
damaged by the elements. The resultant loss from theft is
also great
possibility. It can be argued that if the . loss is caused by
government then government will pay. There is no need
to encourage
unnecessary liabilities to be accumulated under this unreasonable
circumstances.

The
application must succeed with costs.

K. J.
GUNI

ACTING
JUDGE

For
Applicant : Mr. Klass

For
Respondent : Mr. T. Molapo