CIV/APN/198/98
IN THE HIGH COURT OF LESOTHO

In the matter between:

THABO NAPENYANE APPLICANT

and

THE OFFICER COMMANDING POLICE - KAO 1^st
RESPONDENT
THE ATTORNEY GENERAL (N.O.) 2^nd RESPONDENT

For Applicant : Adv. Molapo

For Respondent : Adv. Miss Mothepu

Judgment

Delivered by the Honourable Mr. Justice T. Monapathi on
the 10^th day of April 2001

The Applicant has applied on urgent motion on the 13^th
May 1998 on a certificate of urgency. The matter had since ceased to
be treated as an urgent matter. The application was for the
following
prayers:

2

1. That Rule Nisi issue returnable on the date and time
to be determined by the above Honourable Court, calling upon the
Respondents
to show cause, (if any) why:-

1. 
   The normal forms and service provided for by the Rules
   of Court shall not be dispensed with on account of urgency;

   
   

2. 
   Restraining the Respondents and/or their Subordinate
   Officers from disposing of, alienating and/or destroying Applicant's
   vehicle,
   Toyota Hi-Lux Van registration number CHC637GP, chassis
   number TPA 900831111055 and engine number TPA900831110555 pending
   finalisation
   hereof;

   
   

3. 
   Directing the Respondents and/or their Subordinates ti
   release
   Applicant's Toyota Hi-Lux Van registration number
   CHC637GP,
   chassis number TPA 900831111055 and engine
   number
   TPA900831110555 to him;

   
   

4. 
   Directing the Respondents to pay costs of this
   application;

   
   

5. 
   Granting the Applicant such further and/or alternative
   relief.

   
   

2. THAT Prayer 1 (a) and (b) should operate as an
Interim Interdict with
immediate effect.

Further
and substantially the Applicant sought for the release of the said
vehicle.

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The accompanying affidavit of the Applicant was
used in support of the application.

On the 29^th May 1998, the Respondents filed
the notice of intention to oppose to application. This was followed
by Respondents' answering affidavit
by the deponent Thabang David
Moabi, a detective trooper with the then Royal Lesotho Mounted
Police. He was attached to the Criminal
Investigation Department at
Ha Lejone. The opposition was accompanied by the supporting affidavit
of one Jannie Petersen and of one
Tigeli Mokokoane as well. The said
Jannie Petersen said he was a citizen of South Africa employed by
South African Police Service
and was then attached to the Vehicle
Unit at Ficksburg. The said Tigeli Mokokoane was a member of the said
Lesotho Police Force with
a rank of Lieutenant and he was stationed
at Leribe in the Criminal Investigation Department. The Applicant in
turn filed a replying
affidavit.

The Applicant's case had been that he was in peaceful
and undisturbed possession of the said vehicle until the 23^rd
April 1997, when the police officers who were acting within the scope
of their official duty despoiled him of the same. They kept
the
vehicle at Kao Police Station without reasonable and/or just cause.

It was Applicant's further case that he had acquired the
said vehicle lawfully and its continued seizure was purposeless
because he
was not criminally charged or

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at all in connection with said vehicle. I agreed
with Miss Mothepu for the Crown

that it might well be that the trial Court will prove
that there were those irregular tamperings with parts of the vehicle
and that
that annexure "A" was bogus in several ways. One
of them could be that the vehicle registry of the office of
Vandebijilpark
would not even know of MV Lekalakala who was said to
be the owner. Secondly that vehicle might not even have been
registered at that
registry. Thirdly that document called Motor
Vehicle Licence and Clearance Certificate might turn out not even to
be proof of ownership
according to the laws of the Republic of South
Africa. Fourthly it could be that there has never been anyone by the
name of MV Lekalakala
because he does not exist and he is a fiction.
Sadly these are not the things that Mr. Jannie Petersen speaks about.
Nor is this
Court the proper Court to decide that. I would add that
the Applicant could safely argue that without the evidence of the
owner of
the vehicle Mr Petersen's saying is inadmissible hearsay.
That the Applicant was in peaceful possession was enough as Miss
Mothepu
conceded.

I felt that if the police suspicion was reasonable it
was still not the end of the matter. Applicant says that the
suspension was
not reasonable. Respondents' deponent did not tell how
the chassis number (which he said was erased) are to be found on the
windows
and not on the chassis itself. He did not reveal what the
alleged chassis number on the windows originally were and lastly what
scientific

5
methods were used or not to reveal what they were.
It was submitted that it had

been imperative to use scientific methods where
tampering of this nature was alleged as well. See Jakaranda Busdiens
(Pty) Ltd v Herbert
Mokorosi

CIV/T/107/87 page 8-9.

In his answering affidavit the said Respondents'
deponent went further to say that subsequently he invited South
African police to
run an acid test on the vehicle and this
examination revealed that both engine and chassis numbers had been
tampered with, as a result,
certain numbers emerged. He went further
to say that the report revealed that the vehicle was reportedly
stolen from one R F Erdefert.
I remarked to Miss Mothepu as to the
paucity of the circumstances of the alleged theft since the theft was
denied. An affidavit of
the victim of the theft could have been
useful. The Court was not told why it had been difficult to secure
it. But still this had
to do with proof of theft which proof has
never been forthcoming.

It was said by the Applicant that this "Annexure
"A" which was a certificate of registration spoke for
itself. May
be it dis for the purpose of these proceedings but not
necessarily for others. It was said it showed the previous owner of
the vehicle
of an address called 18803 Masoweng Street, Zone 14
Sebokeng, Vanderbijilpark. That was said to have adequately explained
the origins
of the vehicle. It thought this might even be untruthful
but this Court was concerned

6
with the fact that the Applicant said he was in
peaceful and undisturbed possession of the vehicle. This I might even
take for granted
when nothing serious to the contrary was shown.

I was concerned with the fact that since detention the
Applicant had not been charged and as he said the detention of the
vehicle
was no longer purposeful. As Maqutu J said in Kekeleetso
Mokokoana v Officer Commanding Police Robbery and Car Theft Unit and
Anther
1991-1996(1) LLR 732, justice delayed is justice denied. The
police knew that they are duty bound to respect the liberty, life and
property of the people. The police and the Courts are entitled to
hold property of the suspect for so long "as may be necessary
for purpose of any examination, investigation, trial or inquiry."
See Section 17(1) Constitution of Lesotho under heading: "Freedom
From Arbitrary Seizure of Property".

It was correctly submitted that the intention of
detaining property which was reasonably suspected to have been stolen
was not that
it should be kept indefinitely without charging the
suspect. Thabang Moabi said that the Applicant would be remanded at
anytime without
stating that with any particularity. This was wrong
and unhelpful. The police are not entitled to seize people's
property, put it
aside and outside in the Charge Office premises and
forget about it while it deteriorates as days pass. See Mokokoane
case (supra).

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The most important question for the Court to
decide in this application was

whether the Applicant is a bona fide possessor and not
owner of the subject matter; Secondly whether the seizure and or
detention
was purposeful.

It is submitted that in this application the Applicant
is a bonafide possessor and that the seizure and or detention wa's
purposeless.
In the words of Miller J.A. "Moreover, no
prosecuting has been instituted in respect of any offence concerning
the car during
the lengthy period that has elapsed since the Police
took possession of it, there does not appear to be any justification
for the
continued detention thereof. It must be recognised that the
statutory provisions relating to detention of property generally
anticipate
prosecution for a relevant offence. In short what was
visualised by the legislature is a purposeful detention. If a stage
is reached
when the detention appears no more purposeful there can
surely be no point in the continued detention of the property. It
appears
to me that in this particular case that stage was reached
sometime ago and it is just and proper to release the car to
Applicant
as the person who was in bona fide possession at the time
of its seizure." See Mokokoane's case (supra) p733: see also :
Makakole
v Officer Commanding CID Maseru And Another LAC (1985-89)
207.

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In the case of Fako Griffiths V The Commissioner
of Police & Ors

C of A (CIV) No.9 of 1991 (Unreported) Ackermann J.A.
dealing with delays in investigations said:

"The lapse of time (which would be unwarranted even
in the most complex commercial fraud cases) is wholly unjustified in
the
present instance. The appellant is entitled to have the case
against him proceeded with immediately or the charge against him
withdrawn
forthwith.

The delay in that case was considerably longer and the
accused had been charged. In this one the applicant has never been
charged
with the commission of any offence." See Mokokoane's
case (supra) p. 12.

In the case of Riddock v Attorney General for Transvaal
1965(1) S.A. 817 at 818 F-G TrollipJ remarked as follows:

"No time is fixed in the Act in which the Attorney
General must take
a decision, but the whole policy of the Act is
that the accused must be brought to trial without undue
delay Attorney General must
act

9
with reasonable expedition in deciding what to do,
and I have no

doubt that if he has delayed unduly in making a decision
is a
particular case, the Court can and would, at the instance of
the
aggrieved person intervene and grant appropriate relief. "

It was respectfully correctly submitted that the
Applicant had made out a case for the relief sought and as such it
was accordingly
prayed that this application must succeed. And in the
light of concessions made by Miss Mothepu on the 27^th
March, 2001,I allowed the application. Mr. Molapo said he was not
insisting on an order for costs.

T Monapathi
Judge

10^th April 2001