IN THE HIGH COURT OF LESOTHO

 

 

HELD AT MASERU                                CIV/APN/628/2010

       

                                  

In the matter between:

 

 

MOTSIE MOTSIE                                            APPLICANT

 

AND         

 

THE OFFICER COMMANDING

VEHICLE THEFT AND DETENTION UNIT                  1^ST RESPONDENT

THE COMMISSIONER OF POLICE           2^ND RESPONDENT

ATTORNEY-GENERAL                              3^RD RESPONDENT

 

JUDGEMENT

 

Delivered by the Honourable Acting Judge Mr. G.N. Mofolo

On the 3^rd January, 2011

 

       

        The Applicant has approached this Court on a Notice of Motion for Respondents to show course (if any) why:

(a)         The first Respondent and/or his subordinates shall not be directed to release to Applicant the vehicles of the following descriptions:

(i)           White Quantum Registration AB 785

(ii)          White Quantum Registration D 9790

(b)         The seizure of the said vehicles shall not be declared unlawful;

(c)          The First Respondent and/or his subordinates shall not be interdicted and restrained from conducting any further unlawful searches of Applicant’s premises;

(d)         The Respondents shall not be ordered to pay costs of this application.

 

        The application is opposed.  Mr. Teele has asked the Court to postpone sine dine prayer (a) of the Notice of Motion in that he learns the case is proceeding and persists to proceed with (b) and (c) of the Notice of Motion.

 

        He says the police had no reasonable suspicion to search the premises and the onus is on them to establish that there are such reasonable suspicions.  Ms Mabea has submitted, on the contrary, that in terms of Section 14 (1) of the Motor Vehicle Theft Act police are allowed to search without a warrant and hence there is no reason for police to have reasonable suspicion before searching.  Further that it was on the basis of information they had that they searched and Applicant has failed to say how he acquired ownership of the vehicles.

 

        In so far as the first ground is concerned, it will be seen  Section 14 (1) of the Motor Vehicle Theft Act allows policemen to search without warrant in course of which “if he believes, on reasonable grounds, that the vehicle is a stolen vehicle” can seize the vehicle and any documents relating to it and obviously if the suspect claims to have bought the vehicle and has no covering papers as Ms Mabea has submitted, this is reasonable suspicion that the vehicle is stolen.  Ms Mabea has further claimed the police were operating from information they had that the vehicles were stolen and Mr. Teele has countered it was for the police to say so unless they were privileged not to disclose source of their information which in any event came after search and seizure for, according to documents before Court so-called reasonable suspicion came after the search and seizure.

 

        I have perused Applicant’s affidavit and find he has deposed to the fact that he received a message from Mopeli who stored his vehicles that police wanted vehicle keys and went to Thetsane’s with the keys and at Thetsane he was told the vehicles were being examined and the police had no warrant of search and seizure and he was not told the basis to examine the vehicles.  In reply to Applicant that he went to where the police were, D/Sgt. Motsoetla has denied Applicant went to them and they had conversation with him for the person they found on the premises did not ask for a warrant and the vehicles were towed to the Police Training College.  (See paragraph 8 of the Founding Affidavit).  Applicant has further alleged on paragraph 12:

                   

(1)         Seizure of vehicles was effected without warrant of search and seizure;

(2)         He was not informed of any basis, let alone reasonable one upon which it was necessary to impound the vehicles;

(3)         The search and seizure was done at night and there were no respectable people to witness the search;

(4)         The search amounts to arbitrary deprivation of property;

(5)         The vehicle registered AB 785 was seized by the police before and it was released following a Court Order by Magistrate in Mafeteng.

 

        In his paragraph 11 of the Opposing Affidavit the Sgt. Motsoetla has denied the seizure was unlawful saying it was done during the day at a place other than Applicant’s and Applicant can’t allege the search and seizure were done without warrant because the acts were not done at his home and has failed to attach affidavits of the person from whom the vehicles were seized.  Sgt. Motsoetla has further deposed Applicant did not establish how he acquired the vehicles - see para.5 of Opposing Affidavit.

 

        On paragraph 11, Stg. Motsoetla has deposed the vehicles were suspicious and Applicant did not present himself when called to do so recalling at paragraph 7 Sgt. Motsoetla deposed “we enquired about the vehicles of which we already had information that they were stolen.  The person whom we found there called Applicant on his phone and told him about our presence and that we wanted him but the Applicant never arrived until that person called him again and informed him that he will not take responsibility of the vehicles any more.”

 

        In Nel v Deputy Commissioner of Police, Grahams town and Another, 1953 (1) SA 487 it appears Sub- Inspector Heiberg and Head Constable Le Roux entered an Amusement Park and the owner of the Park knowing the officers invited them to inspect and operate the machines and searching and operating the machines the officers came to the conclusion that the machines were illegal and the officers determined to seize and remove them.  The police officers had no warrant of search and it was admitted in terms of the law that the officers must have “reasonable grounds” for suspicion before searching and seizing reasonable grounds meaning that the official searching must satisfy the Court not only that he himself believed those were reasonable grounds excusing search without warrant but that as was said in Guardian Newspaper (Pty) Ltd v Minister of Justice and Others, 1946 CPD 719 at p.730 to be that belief was based on reasonable grounds.  It was said when the police seized the machines they had before them the fact that the result depended on chance as is apparent and admitted and hence it seemed at the time of seizure Inspector Heiberg has shown he not only believed them to be illegal machines but he had reasonable cause for so believing.

        Because the Applicant:

(1)         Kept the vehicles at a place other than his own;

(2)         Did not pitch up when called upon by police to do so;

(3)         Vehicles although called duty taxis were not functioning or doing their work but packed at the home of Mopeli;

(4)         Applicant was unable to say how he acquired them.

 

        This Court comes to the conclusion that Sgt. Motsoetla had reasonable suspicion that the vehicles were stolen and since the search and seizure were legal the application is dismissed and there will be no order as to costs.

                                                      

 

G.N. MOFOLO

PUISNE JUDGE

 

                                                     

 

 

 

For the Applicant     :       Mr. Teele KC

For the Respondents:       Ms Mabea