9

certificate
mentioned above.

Another
matter that is strange regard being had to the type of remedy
Applicant contemplated namely a spoliation order, is that
he should
wait and do nothing from November 1983 (when it became certain to him
that his car had been disposed of) until July,
1986, when he sought
relief from this Court. It is not characteristic of a man who has
been despoiled to wait for close to three
years before seeking remedy
in respect of the alleged wrong. By its nature a spoliation order is
invoked to afford an immediate
relief from a wrong immediately
suffered or while it begins to be suffered. The fact that he waited
ail this long gives credence
to the assertion that he did not regard
himself as being dispoiled because he acknow­ledged that Tseka
was acting properly.

Tseka
claims that he seized the vehicle basing himself on Suction 52(b) of
the C.P. & E. supra.

It is
clear that when he seized it he was acting within the law. That
Section further says

"A police.............may, if the article is stolen property or
property suspected to be stolen, with the consent of the person"

from whom it was seized, deliver the article to the person from whom,
in the opinion of such policeman, such article was stolen,
and shall
warn such person to hold such article available for production at any
resultant criminal proceedings, if required to
do so ...... "

10

Although
it may seem very high-handed of a policeman to dispose of an article
pursuant to the above Section while a trial incidental
to which such
an article is an exhibit is going on the law does not forbid him to
do so. This appears to me to be the crux of the
matter to be
evaluated when trying to determine whether in acting as Tseka did, a
policeman acts outside the law. Surely the law
cannot empower a man
to do a certain act on the one hand and find him guilty on the other
hand of having breached the law when
acting in accordance with what
that law says he may do if in his opinion it is right to do so.

The other
matters set out in this section are too dependent on contingencies
hence need not be considered in detail. For instance
if the strict
letter of this Section is followed, a policeman who releases an
article contemplates by the Section without seeking
the consent of
the accused is breaching the terms of this Section but such a breach
is cured immediately the article is rendered
available at the
resultant criminal proceedings although the Section does not state
what penalty a police-man in such circumstances
is to suffer for
failure to seek the consent of the accused. Another matter of
contingency in this Section is the position where
having warned the
person to whom the article is released and in the event that such
person does not render the article available
to Court for purposes of
the criminal proceedings

11

can the
policeman be held responsible for such person's failure? It seems to
me that this should be given a negative reply.

It is
significant that Applicant ad 6 of his Heads of Argument makes much
of the fact that corruption existed in 2nd deponent's
department
consequent upon which many incumbents "were axed - a factor
known to the whole world". Applicant does not
say when this
axing took place in relation to his lodgment of this application on
14-7-86. In this regard, Applicant seems to be
blind to the fact that
he is lending a handle to a possible criticism that he was biding his
time all this while so as to take
a chance and lodge his claim once
such axing took place.

Although
when made laws appear to be crude, it is, however, the function of
judicial officer in interpret them in such a way that
they accord
with one another. ft would, therefore, be undesirable to interpret
provisions of Section 62(b) supra in such a way
as to put a policeman
empowered to exercise his discretion in implementing it in peril of
facing a spoliation order. Much as Mr.
Nthethe's submission that
because of risks involved in handing over an article to a
non-resident of Lesotho is plausible, the wording
of the enabling
clause is not confined to Lesotho because it also refers to property
thought by the policeman to belong to someone
from whom it was stolen
or suspected to have been stolen "whether within Lesotho or
elsewhere". In the absence of any
indication to the

12

contrary,
the word elsewhere should encompass the Republic of South Africa.
Thus a policeman acting in terms of the above Section
cannot be
faulted for delivering the article to a citizen of South Africa even
though risks of such a citizen not rendering the
article available
for purposes of criminal proceedings are ever-present. Correction of
such anomalies surely rests with the legislature.

He who
exercises a right given to him by statute, cannot be held to injure
anyone by so doing.

Again,
the criminal proceedings have not come to an end yet. The question
that the criminal matter was either withdrawn or struck
from the roll
does not imply that the proceedings have come to an and. The end will
only be reached when the accused has been given
a verdict.

All the
foregoing should, however, be read subject to Sections 55 and 66.
While it is appreciated that the Section under which the
police
officer purports to have acted sets no limits as to when he can so
act, a proper reading of Section 56 read with the postil
or marginal
note i.e. Disposal of Article after commence­ment of criminal
proceedings, clearly appears to set limits to the
operation of
Section 52(b) once the article in question forms the subject matter
of commenced proceedings for it becomes inconceivable
what purpose
56(a) would serve if a policeman has usurped courts' power under
52{b). It was not the legislature's intention that
56(a) should be
superfluous or a fifth wheel to the cart. For future purposes then
police are prohibited from acting as did deponent
in circumstances
similar to those of the present case.

13

It would
also seem that since Mr. Kemp too is claiming lawful title to the
motor vehicle, Applicant would do well to vindicate his
own title
against him.

application
to grant the order is refused. Costs are accordingly awarded to
Respondents.

ACTING
JUDGE

13.2.87.