Molapo v Officer Commanding (Maseru)(CID) and Another (CIV/APN 280 of 92) [1994] LSCA 35 (23 February 1994)

1 CIV/APN/280/92 In the Application of: NTHABISENG MAMABULA MOLAPO Applicant and OFFICER COMMANDING (MASERU) (C ATTORNEY GENERAL I. D.) 1st Respondent 2nd Respondent J U D G M E NT Delivered by the Hon. Mr. Justice W. C. M Maqutu, Acting Judge on the 23rd day of February, 1994. This is an application for the release of a motor vehicle and a passport which was lodged on the 31st July, 1992 as a matter of urgency. This application was supposed to be heard on the 10th August, 1992. It has had several postponements, consequently it was only being heard on the 17th February, 1994 The Notice of Set-Down was filed of record on the 16th February, 1993 The Respondents in this matter are Officer Commanding C I 0 and the Attorney General The police are empowered by Sections 51 end 52 the Criminal Procedure and Evidence Act of 1981 to seize property which may afford evidence of Commission or suspected Commission of an offence. If the property is not required at the trial the property shall be returned to the person from whom it was seized. In this case applicant's motor car has been in police custody for over four years. Although the applicant was charged with theft almost four years ago, no criminal trial has commenced to this. There is no dispute that on the 10th May, 1990, Captain Sempe of the Royal Lesotho Mounted Police seized a 1990 Oppel Motor car Registration Number C.5707 from Applicant's husband. There is no dispute that this car belongs to Applicant and that Captain Sempe was investigating a case of theft of money that Applicant was alleged to have stolen Applicant was arrested and appeared before a Maseru Magistrate on the 23rd January, 1991, was charged with theft of money from the Lesotho Agricultural Bank and was released on bail. The case was remanded to several court days (during which remands) Applicant attended On the 3rd April, 1992, Applicant was excused from attending any remands. Applicant in bringing this applicant in July, 1992 wanted his motor vehicle back together with her passports. At paragraph 11 of her founding affidavit Applicant avers at Maseru "My said vehicle is kept in the and open deteriorates daily. Unless it is released to me for safe keeping I am likely to suffer irreparable harm and prejudice." C. I. D. She also wants her passport because she has been confined in Lesotho for over two years She wants to cross the border to collect goods she intends to sell Captain Roselyn Sempe made an opposing affidavit on behalf of the Respondents in which she stated at paragraph 8 that: "Our investigations have revealed that the vehicle was purchased by the applicant with money which she allegedly stole from the Lesotho Agricultural Development Bank The vehicle is going to form part of the evidence against applicant in a criminal case she stands charged with " Mr M a t a b a ne for A p p l i c a nt in his a r g u m e nt said he could not c o m p r e h e nd the kind of e x h i b it the motor car would make He felt R e s p o n d e n ts w e re o b l i g ed to g i ve some i n d i c a t i on of how they were g o i ng to go a b o ut the m a t t er Mr M a t a b a ne felt the R e s p o n d e n ts w e re h i d i ng b e h i nd bare a l l e g a t i o ns M r. L e t s ie for the C r o wn in r e s p o n se said they w e re not o b l i g ed to d i s c l o se their e v i d e n c e. The c o u rt o r d e r ed c o u n s e ls for both p a r t i es to go and find out w h at was g o i ng on in the M a g i s t r a te C o u rt w h e re the c r i m i n al p r o c e e d i n gs are p e n d i ng a g a i n st a p p l i c a nt The c o u rt felt o b l i g ed to do so b e c a u se c o u n s el for r e s p o n d e nt was a t r y i ng to s u p p l e m e nt his case by a l l e g i ng w h at did not a p p e ar in the p a p e r s. In t e r ms of Rule 8 (11) and (12) of the High C o u rt 1 9 8 0. the door was closed to the R e s p o n d e n t 's u n l e ss they m a de an a p p l i c a t i on for the filing of f u r t h er a f f i d a v i t s. S o m e t h i ng that m i g ht be u n c o n s c i o n a b le after so m a ny y e a rs when a p p l i c a nt had filed the final a f f i d a v it on the 7th O c t o b e r, 1992 The N o t i ce of s e t - d o wn w h i ch a p p o i n t ed 17th F e b r u a r y, 1 9 94 had been filed of record on the 16th F e b r u a r y, 1993 A p p l i c a nt had w a i t ed for a w h o le year just to be heard The C o u rt felt f i n a l i ty had to be r e a c h ed in this a p p l i c a t i on N e v e r t h e l e ss I felt that c r i m i n al p r o c e e d i n gs are the b e d - r o ck on w h i ch law and o r d er and the s t a b i l i ty of s o c i e ty from w h i ch other h u m an r i g h ts rest W i t h o ut e n c o u r a g i ng laxity and i n s e n s i v i ty that could lead to the p e r p e t r a t i on of o p p r e s s i on w i th i m p u n i ty by the C r o w n, I felt the c o u rt w as e n t i t l ed to know the f a c ts s u r r o u n d i ng the delay of the c r i m i n al case a g a i n st a p p l i c a nt R e l y i ng on R u le 59 of the High C o u rt R u l es in my d i s c r e t i on I a l l o w ed A p p l i c a nt and R e s p o n d e nt to go and find out from the M a g i s t r a te C o u rt w h at is the fate of t h o se c r i m i n al p r o c e e d i n g s. The view I take is that the R u l es of C o u rt are m a de for the C o u rt not the C o u rt for the R u l e s, See Shill v. M i l n er 1937 AD 101 at 105 w h e re de V i l l i e rs J. A m a de a s i m i l ar c o m m e nt in r e s p e ct of p l e a d i n gs I c o n s i d e r ed the i n t e r e s ts of j u s t i ce made such a c o u r se n e c e s s a ry w i t h o ut a l l o w i ng e i t h er party to s u p p l e m e nt its case M r. L e t s ie for R e s p o n d e n ts felt the C r o wn w as free to b r i ng the a c c u s ed to trial w h en it w as c o n v e n i e nt for it to do so. Part X S e c t i on 141 of the C r i m i n al P r o c e d u re and E v i d e n ce Act of 1 9 81 s e e ms clearly to require the accused to be brought to trial without delay. The fact that pressure to proceed with the trial immediately (somewhat gets reduced when the accused is given bail) does not alter the fundamental principle Section 141(2) of the Criminal Procedure and Evidence Act of 1981 provides- "If the person Is committed for trial or sentence before the High Court is not brought for trial after 6 months from the date of his commitment .. he shall be discharged from imprisonment for the offence in respect of which he has been committed." If even a convicted person can get a discharge after 6 months if nothing is done, then it is clear that the right to a speedy trial is in our law greatly respected While being granted bail (somewhat takes away urgency) Trollip J in Riddock v. Attorney General Transvaal 1965 (1) SA 817F states even where no time limits are set. "the whole policy of the Act is that an accused must be brought to trial without undue delay " We must never forget that the maxim JUSTICE DELAYED IS JUSTICE DENIED is not an empty pious declaration It is an article of faith in our judicial system. The Court felt itself unable to prejudge the question whether or not the Crown will be able to prove that the motor car was bought with stolen money as Mr. Matabane for Applicant wanted it to do It was not able to make up its mind on the Respondents' submission that the Crown's case might be prejudiced by a premature disclosure of the nature of the evidence against her There are circumstance where the Crown care might be gravely prejudiced. Nevertheless, the Crown could be well advised to note the following remarks from Rocer J. In Kabe and Others v Attorney General and Another 1958(1) S. A 300 at 303 G. H where he said "I find it difficult to see any substance in this ground. The Crown case must be disclosed to the accused in the main trial in full in due course, and it cannot be kept secret " Although the court felt the circumstances of the case might be special, the Court could not understand why the trial did not place it between July, 1992 and F e b r u a r y, 1 9 94 The C r o wn w as o b l i g ed to see t h at t r i al took p l a ce in o r d er to p r o ve its g o od f a i th C o u n s el for R e s p o n d e n ts d i s c l o s ed from the bar t h at t he f i le w as lost I a s k ed him why an a f f i d a v it to t h is e f f e ct w as not f i l ed T h is w as all the m o re n e c e s s a ry b e c a u se R e s p o n d e n t 's c o u n s el w as c l a i m i ng a new f i le w as b e i ng c o n s t r u c t ed T h at is the r e a s on I a s k ed b o th p a r t i es to go to the M a g i s t r a te c o u rt to find o ut w h at had h a p p e n ed to the c r i m i n al c a s e. W h i le I f e lt s i n ce the A p p l i c a n t 's p a s s p o rt w as t a k en away f r om her b e c a u se an o r d er of the M a g i s t r a te and she s h o u ld g et it from the M a g i s t r a te I w as s e n s i t i ve to the f a ct t h at her l i b e r ty and f r e e d om to t r a v el w e re r e s t r i c t ed by the u n a v a i l a b i l i ty of her p a s s p o rt The w o r ds of R o p er J. c a me to m i nd w h e re he s a i d, of the t h at s u b j e ct "In the p r e s e nt a p p l i c a t i o n, the l i b e r ty is t he i n v o l v e d, and it is c l e ar in my v i ew not e n t i t l ed to d e p r i ve a s u b j e ct w ho h as not b e en c o n v i c t ed and i s, of t h e r e f o r e, p r e s u m ed his l i b e r ty u n l e ss t h at c o u r se is c l e a r ly s o me p r o v i s i on of t he law " j u s t i f i ed i n n o c e nt C r o wn is by T he A p p l i c a nt c a n n ot go to the R e p u b l ic of S o u th A f r i ca (as s he c l a i m s) b e c a u se s he h as no p a s s p o rt T h e r e f o r e, s he c a n n ot b uy and sell g o o ds on w h i ch s he e x p e c ts to l i v e. C o u n s el for R e s p o n d e n ts d id n ot s e em to a t t a ch m u ch i m p o r t a n ce to t he r i g h ts of A p p l i c a nt T h is w as so d e s p i te t he c l e ar p o l i cy of o ur law and t r a d i t i on t h at an a c c u s ed p e r s on m u st be b r o u g ht to t r i al w i t h o ut d e l ay M r, L e t s ie c o u n s el for R e s p o n d e n ts b r o u g ht t he p r o s e c u t or of t he c a se f r om t he M a g i s t r a te C o u rt and i n s i s t ed t h at I s h o u ld h e ar d i r e c t ly f r om Mr S h e l l le w h at had h a p p e n ed to t he C r i m i n al c a s e. T he c o u rt w as r e l u c t a nt to h e ar Mr S h e l l l e, b ut C r o wn C o u n s el i n s i s t ed t h at h e a r i ng Mr S h e l l le w as t he l o g i c al o u t c o me of t he C o u r t 's O r d er to b o th c o u n s el t h at t h ey s h o u ld f i nd o ut w h at had h a p p e n ed to t he c r i m i n al c a se a g a i n st a p p l i c a n t. T he C o u rt w as o b l i g ed to h e ar Mr S h e l i le B r i e f ly Mr S h e l i le t o ld t he c o u rt t h at A p p l i c a nt w as c h a r g ed w i th on t he 2 3 rd J a n u a r y, 1 9 91 and w as r e l e a s ed on b a i l. At o ne t i me A p p l i c a nt w e nt to h a ve a b a by T he c a se w as r e m a n d ed s e v e r al t i m es b e c a u se t he f i le had b e en r e t u r n ed to t he p o l i ce a f t er t he a c c u s ed had b e en c h a r g e d. T he f i le n e v er c a me b a ck Mr S h e l i le said he had last s e en the file w h en the a c c u s ed f i r st a p p e a r ed in C o u r t. The r e s u lt of all t h is was t h at the case a g a i n st the a c c u s ed w as w i t h d r a wn M r. S h e l i le the p u b l ic p r o s e c u t or did not h a ve any d o u bt t h at the c a se a g a i n st the A p p l i c a nt had b e en w i t h d r a w n. It b e c a me i n e v i t a b le to c o n c l u de t h at t h e re w e re no m o re any g r o u n ds to k e ep the A p p l i c a n ts v e h i c l e. The c r i m i n al case a g a i n st A p p l i c a nt h a v i ng b e en w i t h d r a wn C r o wn C o u n s el had to c o n c e de t h at his v i g o r o us o p p o s i t i on for the A p p l i c a t i on c o u ld no m o re be s u s t a i n e d. To q u o te from the M i l l er J. A in t he case of I k a n e nq M a k a k o le v The O f f i c er C o m m a n d i ng C. I D. M a s e ru and A n o t h er C. of A ( C I V) N o. 18 of 1 9 85 ( u n r e p o r t e d) w as l e g i s l a t u re "In s h o r t, w h at w as v i s u a l i s ed by the p u r p o s e f ul d e t e n t i on If a stage is r e a c h ed w h en d e t e n t i on a p p e a rs no longer p u r p o s e f u l, t h e re can s u r e ly be no c o n t i n u ed in d e t e n t i on of the p r o p e r ty " p o i nt t he The a p p l i c a t i on is g r a n t ed and (a) F i r st R e s p o n d e n t / a nd or o f f i c e rs s u b o r d i n a te to h im a re d i r e c t ed to r e l e a se to a p p l i c a nt her 1 9 90 Opel C. U M. r e g i s t r a t i on n u m b er C 5 7 07 t o g e t h er w i th A p p l i c a n t 's L e s o t ho N u m b er H 1 5 3 3 47 P a s s p o rt Local (b) R e s p o n d e n ts a re d i r e c t ed to p ay the c o s ts of t h is a p p l i c a t i o n. W C M M A Q U TU ACTING JUDGE 23rd February, 1994 For Applicant For Respondent' Mr Matabane Mr Letsie.