CRI/A/13/85

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of:

'MUSA
MOHAPI

V

REX

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice S. Peete on the 25th Day of April,
1985

The
appellant appeared before the Teyateyaneng Subordinate Court charged
with contravening the provisions of Section 75(2) of the
Subordinate
Courts Proclamation No.58 of 1938, it being alleged that he
wrongfully and unlawfully drove away a vehicle viz. a mazda
van
Registration No. D1549 which had been lawfully seized or attached by
the civil messenger of the Court. The appellant was con­victed
as
charged and given a sentence of one month imprison-ment wholly
suspended "on condition that the accused brings the vehicle

within three weeks from to-day." I will not go into the
propriety of this sentence because on the 25th day of April 1985,

having heard Counsel for Appellant and for the Crown, I upheld the
appeal mainly because the con­viction was wrong. My reasons
now
follow.

2

It was
common cause at the trial that the vehicle in question had been
lawfully attached on the 27th September, 1984 by one Lebohang

Moalosi, a civil messenger, in satis­faction of a debt the
appellant owed. The appellant then somehow persuaded the messenger

and the Senior Clerk of Court to allow him to have the car, despite
the attachment, and drive to Leribe in order to see his lawyer.
The
two Court Officers granted the permission and the vehicle was driven
away by the appellant who failed to return it on the 28th
September
1964, that is, the following day, nor was this vehicle returned by
the appellant until the 2nd day of October 1984 when
the messenger
went hunting for the appellant, who on being found, gave an
explanation that the vehicle had been seized by the manager
of
Pandora Motors at Ficksburg on the 27th day of September, 1984.
Apparently the appellant had been in arrears in paying up his

instal­ments. In short the appellant was dispossessed of the
vehicle on the very game day it was released to him by the court

messenger.

The Crown
Counsel, Mrs Bosiu, did not support the conviction and correctly so.
The appellant was charged with having unlawfully
removed or driven
away the vehicle in question; but then the admitted facts do not
support the charge because the appellant did
not steal the vehicle
from the court premises nor is it alleged that he fraudulently
regained its possession. The Court Officers
themselves allowed the
appellant to drive the vehicle away. The propriety or lawfulness of
their actions is irrelevant for the
purposes of this decision; in
fact they could face a charge of having permitted the vehicle to be
driven away without authority
by law.

2

In the
circumstances, the appeal is upheld, and the conviction and sentence
are set aside.

25th
April, 1985

For the
Appellant : Mr. Mofolo

For the
Respondent : Mrs Bosiu