CIV/APN/62/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

C. M.
MASOABI Applicant

v

FRASERS
LIMITED 1st Respondent

COMMISSIONER
OF POLICE 2nd Respondent

ATTORNEY
GENERAL 3rd Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D. Levy on the 22nd day of May, 1985.

On the
5th of January, 1985, certain police officers called at the office of
the applicant in this matter who is a practising Attorney
in Maseru
and presented ...to. him a warrant issued by a Magistrate authorising
all police officers to search the premises of the
Applicant at
Mazenod and at Setleketseng and to take possession of any liquor on
those premises, the property of Frasers Ltd.

In
conformity with that warrant, the police repaired to the premises of
the applicant at Mazenod in the company of the applicant
and, with
the keys provided by him, unlocked various rooms in that house in one
of which they found a quantity of beer.

They also
search the premises at Setleketseng, but found nothing in accordance
with the description of the the goods alleged to
be stolen from
Frasers Ltd. This beer was taken by the police into their possession
with the assistance of various employees of
Frasers Ltd, who are
wholesale distributors in Lesotho, and ultimately the beer was placed
by the police in the custody of employees
of Frasers Ltd at the
premises of Frasers Ltd. for the purpose of safekeeping until the
outcome of any criminal trial concerning
those goods.

2

It is
clear from the papers before me that certain three young men who were
in the former employment of Frasers Ltd. had been arrested
and
charged with the theft of a quantity of liquor from their employer
and that the present applicant represented them in those
criminal
pro­ceedings in the magistrate court. That trial has been
remanded some four or five times and it is presently not
yet ripe for
hearing, and it is expected, so I am told, that there will be a
further remand very shortly at the instance of the
prosecution.

Applicant
has brought this application on a certificate of urgency signed by
himself about the propriety of which I make no further
comment. But
in accordance with that certificate, an urgent application was heard
by this Court anticipating the normal days required
to be allowed for
notice of opposition and for the filing of opposing affi­davits
in anticipation of an opposed application.

In the
result, however, there are before me the answering affidavits of the
respondents to the application and replying affidavits
by the
applicant.

The
applicant brought the application against Frasers Ltd. as the first
respondent and against the Commissioner of Police as the
second
respondent and against the Attorney General as the third respondent
in his capacity as agent for the Government of Lesotho
in accordance
with the provisions of law.

The
allegations made by the applicant were that a search was made of his
premises by the police in a highhanded fashion with the
use of
firearms threatened or made obvious if any resistance should be met,
and that they acted in a vulgar and rude fashion and
though not
stated, one is expected to infer that they forced their way into the
home of the applicant and seized without his authority
or even his
presence the liquor in question. A very different picture has emerged
from the affidavits that have been filed on behalf
of the
respon­dents and the replying affidavit from which it is clear

3

that the
police acting in the normal course of their duties, presented the
applicant with the warrant to search his house, that
he accompanied
them to his house, and he provided the keys which enabled them to
open the doors of the various room's of his house,
and that in his
presence and while he checked an invoice in his own posse­ssion,
they removed the liquor that they found there.

This
removal took place on the. 4th of January of this year. The applicant
has said that he was in possession of the liquor for
the purposes of
the holding by him of a Thanksgiving feast to celebrate his escape
from death or serious injury in a motor car
accident in which he was
involved on the 8th of September, 1984. He has said that it was his
intention to provide not only liquor
but food in the form of beef and
lamb or mutton to a great number of guests who he expected would
attend this feast, and that for
the latter purpose he ran on his farm
at the house in which the liquor was found, some cattle and sheep
intended for slaughering
for the feast. He said that the quantity of
liquor which was found on his premises was what he would have
expected to be consumed
or required to be consumed by the numerous
quests who would attend this feast.

What was
seized by the police was a. large quantity of beer of various kinds
varying from lager to milk stout and in various quantities.
It is not
without significance that the several kinds of beer that the police
found were identical in all respects to the several
kinds of beer
that were lost by Frasers Ltd. as appears from the invoice that has
been made part of the papers before me, furnished
by the brewery
which supplied the beer to Frasers Ltd. A much larger quantity of
liquor was reported by Frasers Ltd. to have been
stolen than was
found in the premises of the applicant but nevertheless in no
instance was there more beer of the kind found on
the applicant's
premises than had been reported stolen by Frasers Ltd. There was as
well a quantity of spirits missing by Frasers
Ltd. and alleged to be
part of the stolen goods. No spirits were

4

found on
the premises of the applicant.

The
applicant bases his application primarily on an attack on the warrant
issued by the magistrate to which I have already made
reference and
he points to the fact that the warrant authorises the seizure of
liquor at the premises described in the warrant.
The applicant's
original contention was that "liquor", so he thought, was
defined in a dictionary as excluding malted
beverages. However, a
reference to the Liquor Law of Lesotho Act 16 of 1976, shows that
"liquor" is defined in Section
2 of that Act to mean any
spirit, wine, ale, beer etc. so that clearly, the word liquor as
contained in the warrant would include
a reference to any type of
beer.

I have
been referred to other dictionary definitions by counsel for the
first repondent which supports the meaning attributed to
"liquor"
by the Liquor Licencing Act. I am satisfied accordingly that the
warrant sufficiently authorised the police
to seize beer or other
malted beverages that might be found on the premises described in the
warrant.

It is one
of the requirements of the validity of a warrant of search issued
under the Criminal Procedure Act that the goods to be
seized be
described with sufficient clarity (See De Wet vs. Williams No.
1953(4) 124, (t)). No point has been taken by the applicant
of the
fact that the warrant authorises in broad terms the seizure of liquor
and I am satisfied that it was a sufficient description
of the goods
to be seized by their description as "liquor", which of
course covers both malted beverages and spirits.

The
second arm of the applicant's attack on the war­rant was that
there was nothing on the papers before me which in anyway
indicates
what grounds there were for suspicion that the goods that were seized
were the subject of an offence or that the applicant
himself was a
party to such offence and that, therefore, the warrant was invalid.
The brief enquiry which I have made into the
authorities on this
aspect leads me to the inevitable conclusion that since the warrant
is issued by the magistrate in terms of

5

the
Criminal Procedure Act and that he is the person who has to be
persuaded, or to whom it should appear that there is reasonable

ground for suspicion that there were goods to be found on the
premises which Were the proceeds of an offence.

There can
be no rehearing of that enquiry, unless it can be shown that the
magistrate failed totally to direct his mind to the issue
in
question. If it could be shown for example that he issued a warrant
without any enquiry whatsoever, or that he held such enquiry
and
found that there was stolen property to be found on the premises on
evidence which could not have satisfied a reasonable man,
then it may
be that the warrant could be treated as invalid. But primarily not
knowing what information was placed before the magistrate
this court
cannot enquire into what operated in the mind of the magistrate in
issuing the warrant. I refer in this connection to
the decision of
the Appellate Division in Cine Films (Pty) Ltd v. Commissioner of
Police 1972(2) 254 at 265.

I find
also that as a matter of law, the onus in the present instance where
a warrant has been issued is upon the applicant to demolish
the
defence of the existence of the warrant. See Cresto Machines (Pty)
Ltd. v. the Divisional Inspector S.A.P. (1) 376 A.D. I have
formed
the view, therefore, that the warrant is unassailable on this ground,
on the evidence presently before me.

A further
ground of attack on the warrant and which can be stated somewhat more
briefly, is that it does not appear from the papers
before me that
the goods were taken before the magistrate after their seizure by the
police.

Section
46 of the Criminal Procedure and Evidence Act of 1981 provides that "

"If it appears to the Judicial Officer on complaint made on oath
that there are reasonable grounds for suspecting that there
is upon
or at any premises

(a) stolen property or anything in respect of which an offence has
been

6

or is suspected on reasonable grounds to have been committed, he may
issue a warrant directing a policeman named therein or all
policemen
to search any such premises and to seize any such thing if found and
to take it before a magistrate to be dealt With
according to law."

It is the
applicant's contention that the provision that the goods seized be
taken before a magistrate and be dealt with according
to law requires
the police in the present instance to have taken the goods forthwith
before a magis­trate and to deal with
the goods as directed by
him.

It was
conceded by the applicant that if the magis­trate had directed
the goods to be stored in the premises of Frasers Ltd.
that would
satisfy the requirements of Section 42.

I have
been informed by counsel for the Attorney General that there is no
practice to bring goods so seized immediately before a
magistrate,
that there is no kind of hearing into the seizure or any account
given by the police to the magistrate of what has
been seized by them
and that such enquiry would take place only at the trial of the
persons who are tried for their participation
in the offence
concerning those goods. I must add to this also that it is in
accordance with my own experience. With some diffidence
I say that I
have no recollection or knowledge of any such procedure in the case
of goods being seized and then being brought before
a magistrate to
seek his direction as to what is to be done with the goods. It seems
to me that the proper time for dealing with
the goods according to
law is at the conclusion of the Criminal trial and it is my own
recollection and in my experience that that
is when in fact the true
ownership of the goods as well as the question of forfeiture to the
state or crown are enquired into.

I do not,
therefore, consider it to have been the duty of the police to come to
the magistrate with the goods in their possession
on the day of
seizure or shortly therefore or at any time before trial to seek his
directions. In my interpretation of Section
42, the police having

7

seized
the goods will retain possession of them until they are brought to
court in the course of prosecution in con­nection
with the
offence relating to the goods.

Naturally
the police may well be limited in their ability to store goods and so
it is to be expected that they should call upon
citizens to assist
them in that regard and their choice naturally is confined to what
storage is available. I foresee inevitable
difficulties for the Crown
in its prosecution that these goods have in fact been left with the
complainant from whom it is alleged
that the goods were stolen but
that is not a matter for me to inquire into. Trie police no doubt are
aware of their exposure to
criticism in regard to any marks that may
be upon these goods upon which they might rely for identifica­tion
as the property
of Frasers Ltd.

There is
a muted suggestion on the papers by the applicant that some of the
beer had been drunk by the members of the police force
who took it to
Frasers Ltd. or perhaps by the employees of the complainant
themselves. That is a possibility of course and if he
will suffer any
loss in that regard, he will have his remedy at law as he no doubt
well knows. The goods that have been seized
are easily replaceable
and not perishable and no possible harm can come to them which will
cause the applicant damage while they
remain with Frasers Ltd, which
cannot be made good by a monetary payment.

I am
satisfied, therefore, that the action of the police in taking
possession of the goods without bri-ngibg them before a magistrate

and placing them in the care of Frasers Ltd., which is the first
respondent in these proceedings, in no way vitiates the warrant
and
which remains good in my judgment. I should add as well that my view
that that is the correct procedure would appear to be
supported by
the decision of Ingubani v. Divisional Commander S.A.P. 1963(1) 317.

8

A good
deal of the matter contained in the papers before me and of the
arguments presented to me by counsel who appeared for the
various
parties to those proceedings concerned the reasonableness of the
suspicion of the commission of an offence concerning these
goods.

I do not
propose enquiring further into those allegations in the light of my
finding upon the matter which I have already expressed
and suffice it
for me to say further that possession by an individual of what is in
fact an enormous quantity of beer of all the
sorts lost by the
complainant is riot satisfactorily explained by applicant by his
desire to hold the feast to which I have made
reference. I point in
particular to his assertion that he bought the beer in November for
Two Thousand Rand, and when his allegation
in this regard met with a
serious challenge by the Respondents, he changed his stance to the
allegation that he had bought it in
small quantities over a long
period and that he had not said he had paid Two Thousand Rand for all
the beer but only for part of
it. That in itself is an
unsatis­factory feature of the matter which has not been
sufficiently explained but as I say I do
not find it neccessary to
enquire further into the question whether there were reasonable
grounds for suspicion.

I,
therefore, dismiss the application and I order the applicant to pay
the costs of the first, the second and the third respondents.

D.X LEVY

ACTING
JUDGE.

22nd May,
1985

For
Applicant : Mr. Masoabi

For 1st
Respondent : Mr. Robinheimer

For 2nd
and 3rd Respondents : Mr. Moguluma