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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 ...... "
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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
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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
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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.
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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.