CIV/APN/209/86
IN THE HIGH COURT OF LESOTHO
In the matter of:
BOKANG SEGOETE Applicant
v
THE OFFICER COMMANDING
POLICE (MORIJA) 1st Respondent
THE ATTORNEY GENERAL 2nd Respondent
JUDGMENT
Delivered by the Honourable Acting Mr. Justice M.L. Lehohla on the 17th day of February, 1987
Applicant is before Court on Notice of Motion served last year on Respondents 1 and 2 on July 1st and 2nd respectively. The Applicant stipulated that if Respondents did not oppose this matter, it would be set down for hearing on the 14th of that month. The matter was opposed and after several postponements, it was finally argued before me on 6-2-1987.
Applicant is seeking an order in the following terms:
Directing the Respondents to release Applicant's Golf GTS car, 1981 model, Engine Number FRO:94341, Chassis Number 175 0627367 and Registration Number A 6792;
Directing the Respondents to pay Nine Thousand Five Hundred Maloti (M9,500-00) in the event that Respondents are unable to release the said Golf GTS car;
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Directing the Respondents to pay the costs of this Application;
Granting Applicant further or alternative relief.
In a supporting Affidavit, Applicant deposes that around January, 1983, the Morija Police, amongst whom he knew one TSEKA, seized his lawfully acquired vehicle in question. Applicant has attached a fair copy of its registration certificate marked "A". He further avers that in doing so it was in pursuance of their official duty owed to the Second Respondent. The rest of the averments are to the effect that the said Police so acted pursuant to their contention that the said car was stolen property. They kept it for purposes of presenting it as an exhibit in criminal proceedings preferred against Applicant. The criminal case was either struck off the Roll or withdrawn against Applicant twice, to wit, on 18th March and 29th November, 1983. On each occasion Applicant requested his attorneys to demand release of this car to him but the case would be reinstated to afford the Attorney General a basis for saying the car could not be released as it was intended for use as an exhibit in a pending criminal case against Applicant.
Applicant swears that he remembers an occasion when the Crown actually led evidence in the criminal proceedings against him but was not cross examined because
when it was his attorney's turn to do so, the witness was said to be not prepared to attend Court for cross-examination.
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On inquiring from the Public Prosecutor about the car, the deponent was told and he had believed that the investiga-ting officer had made a terrible mistake to release and or give away Applicant's car to a white man from South Africa.
Having given the approximate market value of the car, Applicant avers that he would be content to receive M9.500 from Respondent failing their ability to restore or release the car to him. Finally, ha submits, on oath, that the officers of 1st Respondent had no cause or legal basis to seize his car and eventually give it away to someone without Applicant's authority or Court's authority and thus imputes malice to their act.
In answering Affidavits the 1st deponent Lehlohonolo Tseka deposes that he is the investigating officer concerned in the proceedings in which this car constitutes the subject matter. He contends that he seized this car because it neither had any registration numbers or identification marks, be they temporary numbers or otherwise. On closer inspection, ha noticed that it had a clearance certificate
disc numbered 3A029893 on which was reflected South African registration numbers OA 2806. The car was seized on 17-12-82.
Having relied on information from the second deponent, one Khotsang Lechesa, who works for the Ministry of Transport and Communications where, inter alia, his office deals with registration of motor vehicles in Lesotho, and during
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the course of his investigations first deponent formed the opinion that the said car had been stolen. Subsequent information relating to the car with OA 2806 registration numbers had been stolen on 1-11-82 at Bethlehem.
On 22-12-82 when Applicant came to 1st deponent's office the latter asked him to produce ther registration certificate of this car but Applicant failed to do so.
Then on 14-1-83 a certain Thys Kemp, from Bethlehem, came and identified it as his. First deponent further avers that the case was struck from the Roll because the complainant was no longer prepared to come to give evidence. Consequently, he released the car to Kemp basing himself on the provisions of Section 52(b) of the Criminal Procedure and Evidence Act 1981 and says "the Applicant was there when I did this and he did not object."
Basing himself on what he perceived to be a "satisfactory registration certificate" held by Kemp and the authority derived from the above cited provisions of the Criminal Procedure and Evidence Act, 1st deponent avers that his act was not unlawful or malicious and consequently states, therefore, that the return of the vehicle to complainant cannot render the Government or any of its servants liable to Applicant for either restoration of the said vehicle or damages resulting from failure to restore it to him.
The second deponent Lechesa averred that he had
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seen the copy of the registration certificate attached by Applicant to his founding Affidavit and declared it to be a forgery because:
Following a theft which occurred around 25th August, 1982, the certificate in question T.C. 3 No.3897 together with others disappeared from printing whilst still blank and never reached his office. Deponent says he is able to identify this particular certificate by its number. Furthermore, it was on account of that theft that it became necessary for his office to report it to the Commissioner of Police in writing, wherein was listed the numbers of the missing books or certificates of which T.C. 3 No.3897 constituted a Group Series known as Group 3. See Annexura "A" to this deponent's Affidavit.
A Savingram from Traffic Commissioner's office to Commissioner of Police wherein listed 12th under Column 3 appears the figure 3897.
The Savingram is dated 7th September, 1982,
Deponent 2 further says that according to his records, the current owner of the motor vehicle allotted the registration numbers A 6792 is one M.D. FERREIRA and not the Applicant. Annexure"B" to which 2nd deponent refers me shows, and this is in keeping with his averment, that this number was previously allotted to BENCO INTERNATIONAL registered in Maseru.
In accordance with experience gained, no doubt, from handling and processing of registration documents, 2nd deponent has drawn the
Court's attention to inconsistencies which would, if believed, tend to give a He to Applicant's claim.
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He says while Annexure "A" is for motor vehicles registered in Maseru, Applicant has given the impression chat his clearance
certificate disc bore the number 2087; yet the clearance certificate bearing this number was transferred together with others to Qacha's Nek Sub-Accountancy on 4-12-80. In this regard I am referred to Annexure "C" which is a photocopy of some document that is so blurred and smudgy that I can hardly see anything on it.
However,, this deponent contends that if Applicant had in face registered his motor vehicle in Maseru, the first clearance certificate would have had "to come from the district where the motor vehicle was being registered".
Deponant implies that this vehicle was not registered in Maseru. Ad C of this replying Affidavit, Applicant says his vehicle was registered in Maseru.
In paragraph (d), Lechesa draws attention to the fact that contrary to the apparent implication from Applicant's Annexure "A" that he registered his motor vehicle in 1981 in terms of Road Traffic Act 1981, as a matter of fact motor vehicles were not registered in terms of that Act in 1981 because one Act had not yet been in force. He concludes by pointing out that his office could not have given him the certificate that he is now exhibiting to the Court for it was simply not there and submits before Court Annexure "D", a sample of registration certificates which were issued in 1981.
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Put side by side for comparison, the Registration certificates though generally similar do have distinctive marks. Certificate D is syled T.C.4 and bears the words denoting the law under which it was issued namely "Road Traffic and Transport Order, 1970, Section 12(1) and the mark denoting the currency for payment of Registration fee is R for Rand, whereas Certificate A is styled T.C.3 issued in terms of "Road Traffic Act 1981 (Section 8). The "Notes" section of the two differs as to content and size of paragraphs.
In his replying Affidavits, Applicant consistently to a large measure, pleads no knowledge of contents of Respondents' averments and puts Respondents to proof thereof.
Regarding 2nd deponent's Affidavit, Applicant in his reply ad (a) avers that he does not work in any segment of Government Printers ana consequently does not know procedures adopted there ana is also quick to show that Lecnesa has no first hand knowledge of the alleged theft of registration certificates therefore his averment should be struck out of the record on grounds of being HEARSAY. I should point out that even though his reference to the theft at Government Printers is hearsay, somehow the alleged act influenced Lechesa's office to take certain measures which he is competent to refer the Court to, namely, that his office took the initiative to report to the police setting out the series of which numbers they were required to be on the look out for.
Furthermore ad (b) Applicant states that there is no proof
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that the registration number A 6792 belongs to M.D. FERREIRA yet in Annexure "B" Respondent has shown in the form headed "Current Registered owner" names and addresses in sequence of possible owners to whom the heading therein refers. Mr. M.D. Ferreira of Postal Address: Box 500, Maseru, is listed next after BENCO International of Postal Address: Box 1625, Maseru, followed by two blank areas for possible if any current registered owners. From this format, it is not difficult to notice that the bottom-most addressee is the current owner because even the dates of fist registration are in chronological order. The first refers to 11-4-78 while the next refers to 23-5-85.
It becomes therefore a matter of practical impossibility that the Registration Number A 6792 currently allotted to Ferreira can at once be said to belong to Applicant or vice versa.
Applicant has not been able to convincingly say why deponent 1's suspicion could not be well-founded when acting on that suspicion based on the fact that the motor vehicle did not bear any registration numbers first deponent was attracted to the vehicle only to be confronted with another strange feature, namely, the existence of clearance certificate bearing Registration Numbers OA 2806.
There would seem to be no good reason why deponent I would not form an opinion that Kemp's registration certificate was satisfactory if it corresponded in its particulars lath, among other things, the clearance
