CIV/APN/47/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between;

'MAMOKHETHI
NTHAISANE APPLICANT

and

THE
COMMISSIONER OF POLICE 1ST RESPONDENT

THE
ATTORNEY-GENERAL 2ND RESPONDENT

JUDGMENT

Delivered
by Mr. Justice G_.N. Mofolo. Acting Judge on the 6th June, 1995.

This is
an application which came to court by way of a Rule Nisi which was
granted by my brother Mr. Justice Monaphathi on the 22
February,
1994.

Although
it was claimed that the application was urgent and a certificate of
urgency filed, it has taken more than a year for the
application to
be disposed of. It is not casting unnecessary aspersions, but one
seriously questions the urgency of these applications,
sometimes.

Substantially
the application was for:

1. An
   order that the 1st respondent release to the applicant a motor
   vehicle to writ: a Toyota Hi-Lux Light Delivery Van, Registration

   No. G.1138.

   
   

2. Further
   and/alternative relief and

   
   

3. Costs
   of suit.

   
   

2

It
appears that the vehicle subject matter of this application was being
used by applicant's son, one Khethisa in running applicant's
business
in Maseru. It is not denied that the vehicle belongs to the
applicant.

When, on
or about the 11th October, 1993 Khethisa was arrested by the police
the vehicle was seized by the police and taken to the
Magistrate's
court to be registered as an exhibit in terms of the law. Applicant's
efforts to have the vehicle released to her
was unsuccessful and
hence this application.

The
application was, of course, resisted by the Attorney-General and an
accompanying or supporting affidavit was filed by Sello
Mosili who
has deposed to the fact that:

1. He
   is a Detective Sergeant attached to Robbery and Car Theft Squad.

   
   

2. As
   the motor-vehicle had bloodstains on it, the motor vehicle was
   seized and kept in police custody and subsequently sanctioned
   by the
   court to be kept as an exhibit pending the result of a case for
   armed robbery and murder against Khethisa Nthaisane (applicant's

   son) and others. He says the suspected crime occurred on 11th
   October, 1993.

   
   

The police fear if the vehicle were released

3

3. there
   was the likelihood that the motor vehicle would be tampered with, or
   disposed of to destroy crown evidence if it were made
   available to
   the accused. I pause here to observe that the application is not
   made by the accused but by his mother the. owner
   of the vehicle.

   
   

Sgt.
Mosili is supported by Seth Moahloli, Peter Chalale and Monyane
Mothibeli all members of the Royal Lesotho Mounted Police.
Sgt.
Mosili in his affidavit says that the case against the suspects is
C.R. 1330/93. He does not say whether there will be a Preparatory

Examination and if so when it can be expected to be held nor does he
shed light on the stage of the investigation in view of the
fact that
the vehicle has been lying with the police for well-neigh six months,
that is from the time it was seized to the time
of deposing to his
affidavit.

When this
application came before me, it was almost 1 year and 7 months since
the vehicle had been seized and Mr. Mapetla was not
very helpful as
when the suspects would be indicted.

Mr.
Sooknanan had earlier submitted that as the driver of the vehicle and
from whose possession the vehicle was seized was suspected
of murder,
murder being not a property related crime as at the end of the case
there would be no order as to the forfeiture of
the vehicle the
vehicle's seizure and detention was unjustified. I agree with this
submission to this extend. But it seems to me
Mr. Sooknanan hadn't
properly read Detective Sgt.

4

Mosili's
affidavit for Sgt. Mosili's affidavit was to the effect that Khethisa
Nthaisane and others were suspected of robbery and
murder. Therefore,
even if murder is not a property-related offence robbery is, in my
view, so related. Mr. Sooknanan referred
me to a Court of Appeal case
and I requested him to furnish me with same but as so often happens I
wasn't furnished with the case
up to the time I wrote this judgment.

It was
further submitted by counsel for the applicant that even if
bloodstains were found it was not clear on which part of the
vehicle
they were found or whether even if they were subjected to forensic
tests they would prove anything justifying the seizure
and detention
of the vehicle. I was referred to __ Noubani v. Divisional
Commissioner. S.A.P. Witwatersrand Division 1963(1) S.A.
316(W) being
authority for the proposition that vehicles may not be seized in
non-property cases.

Mr.
Mapetla for respondents held the view that Section 52 of the Criminal
Procedure & Evidence Act, 1981 authorised a policeman
to seize an
article involved in a crime and that once the policemen had delivered
the article to the Clerk of Court or Registrar
of the High Court as
the case may be in terms of Section 55 the discretion of the
policeman could not be interfered with and that
any application made
had to come by way of review. He further submitted that even if
rights of third parties were affected administration
of justice could
not be hampered by release of articles seized to be used in pending
criminal trials for such an affected third
party could afford

6

1. may,
   if the article is perishable with clue regard to the interests of
   the persons concerned, dispose of the article in such manner
   as
   circumstances may require or

   
   

2. may,
   if the article is stolen property or property suspected stolen, with
   the consent of the person from whom it was seized, deliver
   the
   article to the person from whom, in the opinion of such policeman,
   such article was stolen and shall warn such person to
   hold such
   article available for production at any resultant criminal
   proceedings,if so required to do so;

   
   

or

3. shall,
   if the article is not disposable of or delivered under paragraph (a)
   or (b) , give it a distinctive identification mark
   and retain it in
   police custody or make such other arrangements with regard to the
   custody thereof as the circumstances may require.'

   
   

It will
be seen that section 52 (a) gives a policeman who seizes the article
very wide powers as to the disposal of the article;
(b) of the
section gives a policeman a wide discretion too for he may allow the
person from whom the article was stolen to retain
same for production
at the trial. It is not as if the policeman is bound to hang on to
the article like a leech

7

until the
trial date. It is also to be remembered that though the article may
be forfeited to the crown on the close of proceedings,
the law has
not dictated that the article should under no circumstances be
released to any one pending the result of charges pressed
against a
suspect.

3. of
   S.52 is simply to the effect that if the article is not disposable
   and has not been dealt with under (a) or (b) of S.52, it
   shall be
   given a distinctive identification mark and retained in police
   custody or make such other arrangements with regard to
   its custody
   as circumstances may require.

   
   

Mr.
Mapetla's submissions dwelt on and were directed at the injustice
this might result in if a policeman who seized the motor vehicle

subject-matter of this application was not allowed to use a
discretion imposed on him by the law, that this discretion could only

be used by the policeman responsible and that all of us were helpless
if the policeman as in this case, used his discretion the
way he did
we could not interfere with his discretion.

It seems
to me that, if the above submission were followed to its logical
conclusion, when everything is said and done, although
section 52 in
its entirely is not inflexible and allows considerable elbow room as
to the disposal of seized articles

8

before a
trial, the mere fact that the statute gives a policeman seizing an
article to dispose of it as he deems fit amounts to
a court of law
not being able to question such a discretion.

If this
is the interpretation by which Mr. Mapetla construes the application
of S.52 above, it would be both unfortunate and untenable
in my view.
Unfortunate because once a policeman had seized an article for use in
criminal proceedings and used his discretion
as to its disposal that
would be the end of the matter and no court of law could question
this. Untenable because in the event
it effectively means that the
jurisdiction of the court would in such matters be ousted.

In some
of the judgments I have made so far, I have ruled that if a statute
intends doing so, it must specifically, expressly or
impliedly
exclude such jurisdiction - it must not be inferred. See Main Line
Transport v. Durban Local Board Transportation Board,
1958(1) S.A. 65
(D. & C.L.D.

Mr.
Sooknana referred me to Ngubani v. Divisional Commissioner. South
African Police. Witwatersrand Division, 1963(1) S.A. 316(W)
his sole
contention being that as the crime in respect of which the motor
vehicle is detained is not a property related case the
police had no
right to seize the motor vehicle. I have already said that Mr.
Sooknanan is wrong in this respect because provisions
of section 51
of the Criminal Procedure and Evidence Act, authorises a policeman to
seize any.

9

vehicle
or receptacle in possession or custody of an arrested person if the
offence is in pursuance of Part I of the First Schedule
and Robbery
is a specified offence in terms of the schedule.

In
Noubani v. Divisional Commissioner. S.A.P.Witwatersrand Division
above, Mr. Justice Kuper found that although the vehicle had
been
delivered to the Magistrate the vehicle had nevertheless not been
seized in terms of the Act. Moreover, he found that the
proper person
to decide whether an article should be an exhibit at the trial is the
State Prosecutor himself. Further, he was of
the view that if the
release was opposed an affidavit should have been obtained from the
State Prosecutor.

While I
partially subscribe to Mr. Justice Kuper's reasoning, I find myself
at odds with some of his findings for in my opinion
he did not go far
enough.

I have
referred to Sections 51 and 52 of the Criminal and Procedure Evidence
Act, 1981 extensively. Section 51 gives a policeman
the right to
seize a vehicle and Section 52 gives him discretion as to the
disposal of a seized article before trial. This is the
discretion
nobody may interfere with as Mr. Mapetla submitted. Once, however,
the policeman has used his discretion not to release
the vehicle, he
is bound by Section 55 of the Act quoted above to deliver the article
to the Registrar of the High Court or the
Clerk of Court as the case
may be.

10

Consequently,
a policeman refusing to release a vehicle before trial cannot keep it
in his custody for if he does so he operates
outside the requirements
of Section 55. The delivery to the Registrar of the High Court or
Clerk of Court effectively means that
he has parted with the
possession and control of the vehicle. According to Bell's South
African Legal Dictionary. 3rd Ed. delivery
is described as:

'The placing another person in Legal possession of a thing so that he
may deal with it as his own; the ceding or giving to another
power
over a thing in such a way that the physical control thereof is
united to the legal right of disposing of it. {I have underlined).

When a
policeman delivers a motor vehicle to the court (as was done in this
case) it was not authority to rubber stamp police custody
as Dt/Sgt.
Mosili would have us believe; it is transfer of physical control or
custody of a vehicle from the policeman to the court
and the
accompanying unity to the legal right of disposing of the thing or
article by the court seized of the case as is contemplated
by Section
56 of the Criminal Procedure and Evidence Act, 1981. These sections
55 and 56 are, to my mind, masterpieces of legal
draftsmanship, they
flow and read easily forming a perfect syllogism from which logical
deductions can be drawn.

11

Just to
rub it in, perhaps an analogy will shed light on what I am
propounding:

In a
criminal case a policeman may detain a suspect; at this stage he has
a discretion whether to release him on summons or 7 or
to detain him.
If he releases him on summons, it is a discretion which may not be
interfered with. But if he detains him, he is
obliged to take him
timeously before a magistrate to be remanded in custody. If he does
not do so, an application that he be released
or remanded in custody
will succeed barring draconian laws such as prevail in military
juntas and totalitarian governments. Once,
however, a suspect has
been delivered to the court and remanded in custody, the police have
nothing to do with him for it is the
State Prosecutor who will decide
whether or not the suspect may be released on bail.

The
application was brought against the Commissioner of Police to release
applicant's vehicle on the assumption that the commissioner
is in
control and possession of the vehicle. The vehicle having been
delivered to court in terms of Sec. 56 aforesaid is no longer
in
possession or control of the commissioner and the commissioner having
parted possession with the vehicle cannot release something
he does
not have.

12

When, in
February; 1994 the applicant made an application for release of
vehicle it had been delivered to the court on 12 October,
1993.

From a
reading of R.L.M.P., it appears as if the court has authorised the
police to keep the motor vehicle in their custody. For
the avoidance
of confusion, section 55(2) of the Act reads:

'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 Court in terms of sub-section (1) , the
Clerk of Court may require the police officer concerned to
retain the
article in police custody or in such other custody as may be
determined in terms of section 52 (c).'

This
section is self-explanatory as it in no way waves actual and physical
possession of the article seized by the Clerk of Court
pending the
result of the trial.

I have
read some decisions pertaining to release of vehicles with interest
and would only comment that surely one does not have
to be apologetic
to the police for keeping suspected stolen property for a long time
outside provisions contemplated by section
55 of the Criminal
Procedure and Evidence Act, 1981 for the law requires the police to
exercise their discretion as to the disposal
of the article seized
before trial and failing .

13

release
to deliver such articles to court.

The
applicant would succeed only if he had cited the Clerk of Court of
where the vehicle was delivered for this is the right and
proper
person to release the vehicle which was surrendered to him by the
police.

In the
circumstances the application to release vehicle is dismissed.

There
will be no order as to costs.

G.N.
MOFOLO

ACTING
JUDGE

6th June,
1995.

For
Applicant: Mr. Sooknanan

For
Respondents: Mr. Mapetla