CIV/APN/58/95

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

EASTERBROOK
TRANSPORT (PTY) LTD APPELLANT

AND

THE
COMMISSIONER OF POLICE 1ST RESPONDENT

ATTORNEY
GENERAL 2ND RESPONDENT

REASONS
FOR RULING

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu on the 3rd of March,
1995.

A ruling
was given on this urgent application on the 28th February,.1995. I
considered the application premature having regard to
the
circumstances of the case. Consequently I postponed the matter to the
17th March, 1995 and extended the

2

rule nisi
accordingly. I also required the police in the meantime to speed up
their investigations in order that their position
at the trial might
be assessed regarding the vehicles. At the end of ten days, if they
did not release the vehicles, they should
give reasons.

These are
my reasons for ruling.

On the
16th February, 1995 Applicant brought an ex parte application for a
Rule Nisi calling upon Respondents to show cause why
an order should
not be made in the following terms:

1.1 That First Respondent be and is hereby ordered forthwith to
restore possession to Applicant or its attorney the following
vehicles:

A. One International S Line Mechanical Horse Registration Number YBX
34267.

B. A trailer Registration Number KNE 9655.

C. A Freight liner Mechanical Horse Registration Number YBX 24756.

3

D. A Trailer Registration Number 457175 Three empty containers 2 six
metres 1 twelve metre.

1.2 That First Respondent be ordered to pay the costs of this
application.

1.3 That further or alternative relief as the above Honourable Court
deems fit be granted.

2. That
   the provisions of paragraph 1.1 shall operate as an interim order,
   with immediate effect pending the finalisation of this
   application.

   
   

The Rule
Nisi was granted as prayed. Applicants served the Police and demanded
the release of the vehicles forthwith. The police
demurred and got
the prayer 2 of Rule Nisi rescinded. Consequently Applicant's
vehicles were no more to be released forthwith,

Before
going into the merits of the application itself, I have to comment
upon the tendency to abuse the Court procedure that has
been
displayed by Applicant and others. Ex parte

4

applications
are not meant to obtain relief to the prejudice of the other side
without the other side being heard. The audi afteram
partem rule is a
fundamental precept in all countries with the Rule of Law.

Legal
practitioners should not take advantage of the fact that courts are
over-worked and put too much trust in legal practitioners
that appear
before them. Courts have to put their trust in legal practitioners
because they are officers of the Court. Rule 8(22)(c)
of the High
Court Rules 1980 dealing with all urgent applications including ex
parte ones is evidence that legal practitioners
share the
responsibility with the judge in the granting of urgent interim
relief by stating:-

"Every urgent application must be accompanied by a certificate
of an advocate or attorney which sets out that he considered
the
matter and that he bona fide believes it to be a matter for urgent
relief."

It is
therefore understandable that Courts (relying on legal practitioners
who appear before them) sometimes do not scrutinise the
interim
orders that practitioners seek as thoroughly as they ought to. It is
therefore not surprising that once it was brought
to the attention of
the Court by the Respondents that the

5

Order
that had been granted ex parte was irregular having regard to the
circumstances of the case, the Court cancelled it.

When
Applicant brought an application for contempt of Court, Applicant
found the order was cancelled without notice to Applicant,
The Court
was entitled to do this because of the nature of the prejudicial ex
parte order it had made without hearing the other
side. In so doing
the Court relied on Section 59 of the High Court Rules 1980 which
provides:-

"Notwithstanding anything contained in these Rules the court
shall always have the discretion, if it considers it to be in
the
interests of justice, to condone any proceedings in which provisions
of these rules are not followed."

What the
Court did was to level the playing fields so that the parties can be
evenly matthed. Applicant got an ex parte order to
the prejudice of
Respondents and by the same token ex parte Respondents had it
rescinded. The Court rescinded that ex parte order
because it was
contrary to the spirit of the Rules and everything that the courts
stand for.

Legal
practitioners have time and time again been warned that they should
not get orders which might prejudice the other

6

side ex
parte. Indeed in Connie Mokete v Simon Mokete CIV/APN/487/93
(unreported), this Court said an urgent application does not
have to
be brought ex parte. the other party in the other application could
still be served, but the periods of notice and dies
induciae
shortened so that the matter can be heard within a short time. An
interim order is only to be obtained ex parte if giving
notice might
defeat the purpose of the application. In this case nothing might
happen to the Applicant's vehicles if the police
were given notice.

The view
I take after reading the papers is that Applicant legitimately felt
the matter was urgent. Nevertheless in view of the
interim order that
Applicant was seeking, Respondents ought to have been served with the
notice of application, The reason being
that the order sought was to
the prejudice of the Respondents. I am fortified in my view by the
remarks of Beck J. in Republic
Motors v Lytton Road Service Station
1971(2) ,SA 516 at 518 F-H where he said:

"The procedure of approaching the court ex parte for relief that
affects the rights of other persons is one which, in my opinion,
is
somewhat lightly employed. Although the relief that is sought when
this procedure is resorted to is only temporary in nature.
it
necessarily invades, for the time being, the freedom of action of a
person or persons who have not been

7

heard and it is, to that extent a negation of a fundamental precept
of audi alteram par term. It is accordingly a procedure that
should
be sparingly employed and carefully disciplined by the existence of
factors of such urgency, or well-grounded apprehension
of perverse
conduct on the part of the respondent who if informed
before-hand...the course of justice is in danger of frustration

unless temporary curia] intervention can be unilaterally obtained."

This
caveat together with safe-guards that Beck J. recommended against the
adverse effects of ex parte application was approved
by Lehohla AJ
(as he then was) in the case of L. KHoboKo V . Khoboko and 2 Others
CIV/APN/402/86 (unreported).

I need
only add that in this case had the vehicles been released to
Applicant, to be taken outside the jurisdiction of this Court,
the
consequences of the Order might have had a final effect although
phrased in an interlocutory manner. I am therefore not happy
with the
manner in which Applicant's attorney phrased that prayer and lost
sight of the co-responsibility he shares with the Court
in urgent
applications. I associate myself with the complaint that Coetzee J
made against the strain ex parte applications put
on the courts.
Coetzee J complaining about the way legal practitioners carry on
said;

"These practitioners feel at large to select any day

8

of the week and any time of the day (or night) to demand a hearing.
This is quite intolerable,.,." Vide Zuna Meubel Persaardz'fera
v
Markin Another 1977(4) SA 135 at 136.

Nevertheless
Courts are obliged to help citizens, but they should, not be alone in
this. Coetzee J then continued:

"Therefore, practitioners should carefully analyse the facts of
each case, to determine,...whether a greater or less degree
of
relaxation of the Rules and of the ordinary practice of the court is
required." Luna Meubel Versaardigeras v Markin &
Another
(supra) at 137F.

I note
there are no allegations in Applicant's founding affidavit justifying
the relaxation of "the ordinary practice of the
court"
requiring the observance of audi alteram partem principle.

One of
the problems that have been present in applications of this nature
for some time is that of failure to distinguish between
the office of
Attorney-General and that of the Director of Public Prosecutions, The
Attorney-General represents Government in all
civil proceedings
brought against Government. See the Government Proceedings and
Contract Act of 1965. He has no function to perform
in criminal
prosecutions. That is the function of the Director of Public
Prosecutions.

9

When the
police have charged a suspect and handed over their file to the
Director of Public Prosecutions, their primary and custodial
role
which more fully appears in Sections 51 and 55 of the Criminal
Procedure and EVidence Act of 1981 becomes secondary and supportive

to the prosecution which is under the Director of Public
Prosecutions. It seems to me the powers of decision on exhibits and
who
to bring to trial pass on to the prosecutors and the Director of
Public Prosecutions. Part II of the Criminal Procedure and Evidence

Act of 1981 makes this abundantly clear.

It seems
to me that since Applicant wants the vehicles that might be used as
exhibits, he ought to have joined as a party the Director
of Public
Prosecutions who now has the powers of decision now that Applicant's
drivers have been charged with a criminal offence.
On this occasion I
will not make an issue of this because the Respondents did not raise
this as an objection.

Applicant's
deponent Dino Naidoo is a director of the Applicant company. This
company has operations both in Lesotho and the Republic
of South
Africa.

It is not
clear whether Applicant is a transnational company. In Lesotho
Applicant is known as Easterbrook Transport

10

(Pty)
Ltd. and according to Dino naidoo Applicant has an associate
corporation, Easterbrook Transport CC 416 Archary Road Clairwood

Durban", in the Republic of South Africa. I was advised that
Applicant's deponent Dino Naidoo resides in Durban when I was
asked
by Applicant's attorney to admit the faxed Replying Affidavit into
the record of proceedings. (This I did in view of the
urgency of the
matter.) At paragraph 4 of applicant's founding affidavit, it is
averred:-

"The applicant and its associate corporation Easterbrook CC
carry on business of a transport operator countrywide in South
Africa
as well as Botswana, Swaziland and Lesotho,"

On the
10th February. 1995 applicant's deponent was approached by Gugic
Govender by fax received at the deponent's Durban office
with a
request to hire two 40' trucks and trailers with containers for a
trip to Maseru for the conveyance of goods from Maseru
to Durban. It
is not clear where the deponent was at the time. Deponent dispatthed
his two drivers with the trucks, namely George
P, Hogg and Senzo
Maphumolo. These two were to be later arrested and charged with
house-breaking and theft and now appear as accused
number one and
four in CR 139/9 5 in Maseru, Lesotho. The deponent of Applicant came
to know of

11

their
arrest at 17 hours on the 13th February, 1995. When he got to Maseru
on the 14th February, 1995 he found that

" the drivers had been arrested by members of the police Maseru
and the vehicles and their containers (hereinafter called
"the
vehicles") had been seized by the police," See paragraph 7
of Applicant's founding affidavit.

Applicant's
deponent says they "ascertained from members of the Lesotho
police that both vehicles had been seized and were
being held 'as
exhibits' in the case against the drivers". The view that
Applicant has (advised by his attorney) is the that
the vehicles
could not be properly be exhibits in the case against the accused
therefore the police are holding them unlawfully.

On the
facts on Applicant's own affidavit I have problems with the
submission of Applicant because of Section 51 of the Criminal

Procedure and Evidence Act of 1981 which provides:-

"On the arrest of any person on a charge of an offence specified
in Part I of the First Schedule, the person making the arrest
may
seize the vehicle, receptacle in possession or custody of the
arrested person at the time of the arrest and used in the conveyance

of or containing any article or substance in connection with which
offence is alleged to be or to have been committed."

12

Among the
offences in which Schedule I Part I apply are Breaking or Entering
any premises, whether under common law or a statutory
provision with
intent to commit an offence. Robbery. Theft whether under common law
or a statutory provision. It seems Applicant's
attorney in making the
demands he made to the police, and giving the advice he gave to
Applicant had not checked the provisions
of the law on this leg of
the application.

Paragraph
12 of Applicant's affidavit is suggesting spoliation because
possession was through the arrested drivers "acting
in the
course of their employment" and the alleged forcible
dispossession does not help Applicant. It merely justifies the
action
of the police that have seized and held the said vehicles in terms of
Section 51 of the Criminal Procedure and Evidence
Act of 1981. This
section gives the police the discretion to seize such a vehicle in
making an arrest in circumstances such as
these.

It was
precisely because of the aforegoing that I took the view that
Applicant acted prematurely and ill-advisedly in rushing to
court.
Although I do not agree with the submission that the police can just
hold this vehicle until the end of trial I am of the
view so far the
police have acted properly. The

13

police in
my view have not yet finally made up their mind to use this vehicle
as an exhibit, although some of them have said these
vehicles will be
used as exhibits.

It is a
matter of great concern that the Respondents only filed their
answering affidavit on the 28th February, 1995. I find this
delay
unacceptable and at the end of this application I will take this into
account when I award costs. Respondents did not treat
this matter
with the expedition it called for having regard to the fact that this
is an urgent application. It is for this very
reason that I put the
Commissioner of Police (the First Respondent) to terms when I
postponed this matter,

Mr. Buys
for applicant said because Applicant's deponent Dino Naidoo had not
been arrested, there are no grounds to suspect Applicant
is a suspect
in the case whose investigation is continuing. I am not sure this is
correct, the police do not have to arrest a person
for us to conclude
that he is a suspect.

Mr.
Mohapi for the police would not commit the police on the question of
whether the vehicles would be definitely used as exhibits.
All he was
clear about was that they are potential exhibits. No one can dispute
this. In any event Applicant as

14

a company
possesses through its servants within the scope of their employment.
The two drivers on Applicant's own averments at paragraph
12 of its
founding affidavit possessed the vehicles on behalf of the Applicant.
Whether the vehicles will be exhibits will depend
on the
investigations. Similarly the fact that the two drivers are the
accused does not mean they will at the end of the investigations

stand trial. The Crown might drop charges against them and. charge
some other people instead.

I made it
clear to Mr. Mohapi (counsel for the police) during argument that the
view I hold is the police are not entitled to act
unreasonably on the
question whether the vehicles will be used as evidence or not.
Similarly the detention of these vehicles should
be well-grounded. It
would be a mistake for the police to conclude that the vehicles ought
to be kept until the end of trial.

It is
wrong to conclude that automatically Applicant will have to apply for
the release of the vehicles in terms of Section 57(1)
of the Criminal
Procedure and Evidence Proclamation Act of 1981. The reason being
that this Section applies to vehicles that might
have to be forfeited
because of their involvement in the perpetration of the crime with
the knowledge and

15

participation
of their owners. See Goldberg v Minister of Justice & Another
1952(2) SA 178 where it is stated confiscation and
forfeiture are
only justified if the owners are in pari delicto with the offenders.
The owners of such vehicles are given a right
to show cause why their
vehicle should not be forfeited. This means the Crown and the police
are obliged to keep the vehicles if
they have grounds based on
evidence that the vehicles might be the subject of confiscation or
forfeiture.

Applicant's
replying affidavit is critical of the fact that a lot of what the
police say is speculative and at places hearsay. What
Applicant's
deponent says suffers from the same defect. Both sides have to rely
on evidence of others as both parties were not
there. Applicant's
deponent wants what he says to be the last word. Re virtually demands
to be arrested if he is under suspicion.
As I have said the whole
matter is still under investigation, The outcome of the investigation
is awaited.

In R v
Levack 1961(1) SA 587 it was stated that the police must exercise a
sound discretion in cases of seizure they must not unnecessarily
use
those powers to the prejudice of those affected. They must only
retain or use what is sufficient to

16

prove the
Crown case. In Richards v The Attorney General 18 SC 164 courts
ordered the release of the seized property after it was
clear that
the Attorney General was no more acting reasonably in keeping the
property as a potential exhibit. Some time had elapsed
and the case
was not proceeding consequently the Court had some evidence of abuse
of power to act on,

Section
52 of the Criminal Procedure and Evidence Act 1981 provides that a
policeman is entitled to seize property which."is
concerned in
or on reasonable grounds believed to be involved in the commission or
suspected commission of an offence." This
in my view means the
same thing as seizing property which may afford evidence, required as
evidence or can reasonably afford evidence.
In Wepener v Wheat
Industry Control Board 1950(3) SA 426 Clayden J interfered with the
seizure and retention of property when there
was abundant proof
available to prove the Crown case and bags of oats had been seized
and were being kept to prove contravention
of the Marketing Act of
1937 concerning marketing of oats. At page 429 CD Clayden J
concluded:-

"So prepared for prosecution I do not think any reasonable
person would say in addition. 'These bags of oats may be needed
in
evidence'. I cannot see even a remote chance that the bags of oats
will be used."

17

In this
case the matter is still under investigation, We are obliged to
assume that decisions concerning what will be used as exhibits
will
be taken fairly not maliciously.

Therefore
it does not follow that even when investigations show that the owners
of the vehicles are not involved and that the vehicles
need not be
made exhibits, the police should detain them. I have serious doubts
whether the police without the advice of the Director
of Public
Prosecutions can know for certain whether these vehicles will or will
not be used as exhibits. Once the accused are charged,
the Director
of Public Prosecutions becomes the dominus litus and not the police.
The Director of Public Prosecutions is an officer
of this court. It
would be wrong and improper to assume that he would act improperly or
maliciously. It seems to me that in applications
of this nature where
the accused has already been charged with the commission of an
offence the Director of Public Prosecutions
is a necessary party.

To return
to the police, courts have taken a stand against the belief of the
police that their discretion cannot be interfered with.
In Ikaneng
Makakole v Officer Commanding CID and Another C of A (CIV) No.18 of
1985 (unreported) the late

18

Miller JA
summarised what may be the position of the police in this matter as
follows:-

"Briefly summarised their reason was that there existed grounds
for suspecting that the car had been "concerned"
in the
commission of an offence or offences and that it was therefore proper
to hold it, especially as it might in the course of
time become
subject of forfeiture to the State."

After
going over the facts of the case Miller JA in Ikaneng Makakole v
Officer Commanding CID (supra) dealing with the use of the
police of
the powers of detention of property concluded:

"In short what is visualised by the legislature was purposeful
detention. If a stage is reached when the detention appears
no longer
purposeful, there can surely be no point in the continued detention
of the property."

It seems
to me that once the decision is reached that the vehicles can be
dispensed with as exhibits because they are unnecessary
to prove the
Crown case and there are no evidenciary grounds to bona fide believe
they could be the subject of a forfeiture to
the State, then the
vehicles have to be released. As Davidson J observed in Gottgeisl v
De Klerk & Ano. 1974(4) SA 403 at 407
the police acting in
collaboration with the Attorney-

19

General
(whose functions include those of the Director of Public
Prosecutions) usually signify that the property is no longer required

for purposes of an exhibit. 1 have already said where there are
people who are criminally charged, that ought to be the decision
of
the Director of Public Prosecution. Where the suspects have not been
criminally charged the matter is entirely in the hands
of the police,
who would are normally expected to seek advice before taking such a
decision.

The
opinion of Applicant in this matter can never be enough. The basis of
that conclusion is not even been by any facts, it is a
bare
assertion, applicant was not even there when the vehicles were
seized. Section 53 of the Criminal Procedure and Evidence Act
of 1981
for the return of that property,

"if it appears that such article is not required for purposes of
evidence or for purposes of an order of court, the. article
from the
person from whom it was seized,...or if such person may not lawfully
possess such article, to the person who may lawfully
possess it."

The
police or the Director of Public Prosecution need time. Applicant
brought the application within two days of the seizure of
the
vehicles. That seems to me to be too short.

20

Paragraph
8 of the opposing affidavit made on behalf of the First Respondent
states the vehicle were near the place where the stolen
property was
seized. The police say they reasonably believe the vehicles were
going to be used in furtherance of the crime with
which their drivers
are charged. Therefore the vehicles will afford evidence of the
suspected commission of the offence charged.
How the vehicles will do
this is not clear. The police at this stage are probably not sure
because investigations are continuing.
I see no reason for
pre-empting the investigations by releasing these vehicles, The
police at paragraph 9 continue:

"Police investigations have so far revealed a startling state of
affairs involving the defrauding of the country of millions
and
millions of Maloti in a racket that extends beyond the territorial
boundaries of Lesotho."

To
persuade the Court that there was some abuse of power or
unreasonableness some delay or lapse of time would help. In Fako
Griffith
v Commissioner of Police & Another C of A, (CIV) No. 9
of 1991 (unreported) Ackermann JA said he could accept that in "the

case of the most complex commercial fraud case" a. delay in the
investigation and finalisation of the matter might be justified
up to
a point. This case seems to be a case of fraud extending

21

far
beyond the borders of Lesotho, therefore some time ought to elapse
before investigations are completed. It would therefore be
wrong to
push the police to make a hurried and precipitous decision that might
cause the Police and the Director of Public Prosecutions
to decide
unnecessarily that these vehicles will be. exhibits at the trial
merely to gain time to continue their investigations.
The powers of
decisions ought to be exercised in good faith not to buy time. II
could well be that when the investigations are
completed the police
or the Director of Public Prosecutions (in whose hands the case now
ought to be) might decide the vehicles
need not be kept as they will
not be exhibits.

In order
to emphasise the need to act with expedition I gave the police ten
days to speed up investigations and make the necessarily
consultation
with the Director of Public Prosecutions in order to determine what
is going to happen to Applicant's vehicles before
trial. This Court
has an inherent jurisdiction (even where no statute specifically
authorises it) to see that there is no illegality
or abuse of power
amounting to unreasonableness by any authority or body. The following
words of Trollip J in Riddoch v Attorney
General 1965(1) SA 817 at
816 FG apply to both the Director of Public Prosecutions, the

22

Attorney
General and the police for that matter:-

"The Attorney General must act with reasonable expedition in
deciding what to do, and I have no doubt that, if he delays unduly
in
making his decision in any particular case, the Court can, and would
at the instance of an aggrieved person, intervene and grant

appropriate relief."

In
intervening courts are always conscious of the fact that they should
not usurp the discretion that has been assigned to other
bodies and
institutions. In this case the Court has ordered the First
Respondent, the Commissioner of Police to give reasons in
ten days'
time should he find that the vehicles of Applicant ought not to be
released. The Court would be failing in its duty of
protecting the
rights of individuals while ensuring that the public interest is not
harmed, consequently it made the following
order:

1. First
   Respondent be given ten days to determine what his position at the
   trial will be about these vehicles.

   
   

2. At
   the end. of the period the First Respondent should cause an
   affidavit to be made putting to the Court what his position will
   be
   at the trial and the reasons for it, if he has not released the
   vehicles.

   
   

3. The
   matter is postponed to the 17th, March, 1995 and the Rule Nisi is
   extended accordingly.

   
   

23

To
facilitate effective decision making I direct that this ruling be
served on the Director of Public Prosecutions who is now the
dominus
litus now that criminal proceedings are pending before the courts. I
shall therefore expect the First Respondent to act
under the
directions of the Director of Public Prosecutions.

In future
the Court will expect the Director of Public Prosecutions to be made
a party to the proceedings where criminal proceedings
have already
been instituted.

W.K.M.
MAQUTU

JUDGE

For the
Applicant : Mr. Buys

For the
Crown : Mr. Mohapi