C.of A.
(CIV) NO. 18/85

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between

IKANENG
MAKAKOLE Appellant

and

THE
OFFICER COMMANDING C.I.D.

MASERU
.............. 1st Respondent

and

THE
ATTORNEY GENERAL ..... 2nd Respondent

HELD AT
MASERU :

Coram:

W.P.
Schutz, President

S.
Aaron, J.A.

S.
Miller, J.A,

JUDGMENT

Miller,
J.A.:

The
appellant, a resident of Maseru, was the possessor of a Silver-Grey
ONW motor car, the registration number of which was 02072.
It appears
that the appellant's brother, Phoka Makakole, who died on 24th
November, 1984, had during his life time purported to
be the owner of
the car which he had in his possession and which he apparently used
as the owner thereof. According to the appellant
he,personally bore
all the funeral and other expenses in connection with the burial of
his late brother and toccompensate him therefor
the members of the
family resolved to give him the car, which was believed to be on
asset in his late brother's estate. This was
how the appellant came
to possess the car. The appellant's belief that the car in truth
belonged to his brother was founded in
part upon a document which on
its face appears to evidence the sale of the car to the appellant's
late brother.

2

During
November, 1984, apparently shortly after the death of the brother,
the police took car in question"into their custody".
The
appellant, an appreciable time thereafter (August, 1985) applied in
the High Court on notice of motion for the grant of a rule
nisi
calling upon the respondents to show cause why they should nut "be
ordered to stop, forth­with, the members of the
Respondents'
force from using in -any manner whatever" the said car, and why
they should not be ordered to "cause the
release of" the
said car to the appel­lant. The Court was also asked to order
that the rule, in effect, was to operate
as an interim interdict. The
Court granted the application and a rule nisi was issued. The
res­pondents opposed its confirmation.
It was admitted that the
police had taken the car into their possession but an allega­tion
In the appellant's founding affidavit
to the effect that the police
were using the car for their own purposes was neither admitted nor
denied. The opposition of the
police to the confirmation of the rule
revealed that the car had an interesting if not praiseworthy history.
Almost every document
relating to it was shown to be fraudulent or
false; its chassis number had been changed and a new one wrought upon
it. There was
every appearance of the car having been stolen at some
time in the past, but it was apparently not possible to show when or
by
whom or from whom it had been. stolen. The true Identity of the
person who, according to to document seen and produced by the
appellant,
had old the car to the appellant's brother was not known
with any degree of certainty, nor, apparently, was the whereabouts of
the suspected "Seller" known. In these circumstances the
court a quo discharged the rule nisi and dismissed the application

with costs.

This
appeal is against that order.

There are
no written reasons in the papers before us for the dismissal by the
learned Judge a quo of the appellant's application.
In his notice of
appeal the appellant submits that the learned Judge erred in holding
that because the appel­lant did not indicate
to what private use
the car was being put the rule could not be confirmed. I can only
presuma that the

3

appellant
might have divined such reason for the refusal of the relief sought
from something that might have been said at the hearing.
Be that as
it may the response of the police to the appellants allegation that
the car was being used by them was that such allegation
"cannot
be admitted. or denied". Having left that in the air, the police
went on in their answering affidavit to explain
why they took and
retained the car. Briefly summarized their reason was that there
existed grounds for suspecting that the car
had been "concerned"
in the commission of an offence or offence and that it was, therefore
proper to hold it, especially
as it might in the course become
subject to forfeiture to the State. Before dealing with that aspect
of the matter, I should at
once say that so far as the allegation
that the police had been using the car is concerned,I can find no
reason for rejecting or
even doubting it, the allegation was made
very clearly in the applicant's affidavit and there seems to me to be
no reason whatever
why, if the car was not being used by the police
for their own purposes,it was not possible for them to deny that that
was the
case.

On the
papers before us, it cannot, in my view, be said that the appellant
was at all relevant times aware of the car's history
or that he knew
at the time of taking possession of the car that his brother had not
at any time been the lawful owner thereof.
Nor is there justification
for doubling his statement to the effect that the car was given to
him by the family and accepted by
him, in order to compensate him for
his expenditure of money in connection with the funeral of his
brother. That being so he was,
at the time of the taking of the car
from him by the police, a buna fide possessor thereof. He would, is
such, have an interest
in and rights in respect of the car; he did
not need to establish ownership in order to have the necessary locus
standi for claiming
the relief sought by him.

It may be
accepted, In my view, that having regard to the evidence of
manipulations in respect of the car and of the creation of
fraudulent
documents and registrations, the police were entitled in terms of the
relevant section

4

of the
Criminal Procedure and Evidence Act, No.9 of 1981 (Part VI) to seize
the car. But such right clearly did not carry with it
benefit or
right of use of the vehicle by the police. Moreover, no prosecution
have been instituted in respect of any offence concerning
the car
during the lengthy period that has elapsed since the police took
possession of it, there does not appear to be any justification
for
the continued detention thereof. It must bo recognized that the
Statutory provisions relating to detention of property gene-rally

anticipate prosecution for a relevant offence. The result of the
prosecution might and usually does determine the fate of the detained

property which might be ordered by the Court to be forfeited to the
State or, in the event of the prosecution ending in acquittal,
to be
returned to the Person from whom it was taken for detention. In
short, what was visualized by the legislature was purposeful

detention. If a stage is reached when the detention appears no longer
to be purposeful, there can surely be no point in continued
detention
of the property. It appears to me that in this particular car that
stage was reached some time ago and that it is just
and proper to
release the car to the applicant as the person who was in bona fide
possession there­of at the time of its seizure.

The
appeal is allowed pith costs. The order made by the Court a quo is
set aside and an order is made in terms or paragraphs 1 (a)
(b) and
(c) of the prayer.

Signed : ............ S. MILLER

S. MILLER

Judge of Appeal

I agree
Signed W.P.SCHUTZ.....

W.P. SCHUTZ

President of the Court of

Appeal

I agree
Signed .... S.AARON....

S. AARON

Judge of Appeal.

Delivered
at Maseru on this 23rd day of January,1987. For Appellant