HIGH COURT OF LESOTHO
matter between :-
THAMAE 1st PLAINTIFF
MOLEMOHI 2nd PLAINTIFF
MASENA 3rd PLAINTIFF
COMMISSIONER OF POLICE 1st DEFENDANT
ATTORNEY-GENERAL 2nd DEFENDANT
by the Honourable Mr. Justice M.L. Lehohla on 4th December, 2001
actions above were consolidated by order of Court. Each of the three
plaintiffs sues the Commissioner of Police and the Attorney General
jointly and severally for unlawful arrest and detention in separate
thousand maluti (M10 000.00)
nine thousand nine hundred and forty five maluti (M39 945.00)
damages for assault, pain, shock and suffering; and for
five maluti (M55.00) being medical expenses
and/or alternative relief
declaration Tumisang Thamae in keeping with Charles Masena sets out
at paragraph 5 that on 13th May 1996 and at Butha Buthe the plaintiff
was wrongfully and unlawfully arrested without a warrant by a member
of the Royal Lesotho Mounted Police and thereafter detained at
various Police Stations until the 17th of May 1996.
paragraph 6 each of the two plaintiffs mentioned in the previous
paragraph above sets out that during the detention and especially at
Maputsoe in the Leribe
members of the Royal Lesotho Mounted Police, acting within the scope
their employment with first defendant unlawfully assaulted plaintiff
using various methods of assault including suffocation and
administration of electric shocks to his body.
result of the assault each of the plaintiffs asserts that he had to
undergo medical treatment.
turn, Masiu Molemohi sets out in paragraph 5 of his declaration that
the date of his arrest was 14th May 1996 unlike that of the two other
plaintiffs which as shown is 13th May 1996. I may just indicate that
the two dates of arrest and that of release from police detention
i.e. 17th May 1996 are common cause.
paragraphs 6 and 7 the declaration of Masiu Molemohi is on all fours
with declarations of the other two plaintiffs.
also common cause that the plaintiffs received medical attention and
treatment in one instance once upon release from the police detention
and in all instances immediately upon release from prison where they
had been remanded in
In all instances the plaintiffs fingered the police especially DW1
the then Warrant Officer Chabalala and his subordinates as the
culprits responsible for their injuries suffered and ordeal undergone
while in police custody.
witness for the plaintiffs was Charles Masena who testified that he
is self-employed, tills the land and uses his parents' tractor to
cart sand when the ploughing season is over.
Masena told the Court that he was born on 28th November 1954. He is
married and has Children ranging in age between 17 and 14.
said his wife is a Primary School teacher at Qalo.
the facts of the instant case proper he testified that at around 6 am
on 13th May, 1996 his wife was already preparing to go to work when
she roused him from bed and told him that police had arrived at the
residence and claimed they had come to visit him.
Masena woke up and went to the kitchen to let the police in. He
discovered that he knew two of the policemen who entered into the
kitchen. These were DW 1 W/O Chabalala now Senior Inspector and one
explained to Charles Masena that it would seem a friend of his was in
possession of guns elsewhere and it appeared that Charles Masena bore
some link with such guns.
police accordingly asked PW1 Charles Masena to accompany them when
PW1 got outside he found that there were many other police on his
premises. Policeman Moriana had disclosed to PW1 that PW3 Tumisang
Thamae was the one who linked PW1 with the guns in question. PW1
readily admitted before this Court that PW3 was and still is his
PW1's evidence that from his home he was taken to the charge office
and that at no stage was there any mention of anybody's death by the
police who had asked him to accompany them to the Charge Office. He
stressed that on leaving his home he felt that he was under their
control even though he was not cuffed. He first got cuffed when he
got to Hlotse Charge Office. He had been transported from his
Phaphama in Butha Buthe and taken first to Butha Buthe Police
It was at
Butha Buthe police station that he and PW3 Tumisang were made to sit
in the CID office. PW3 was already cuffed. PW1 had been conveyed to
PW3's place where the latter was found already outside his house in
the forecourt and cuffed. They left for Hlotse and when PW1 got to
Hlotse charge office he was cuffed and tied with leg-irons. Neither
Mofilikoane DW2 nor anybody who came to the Charge Office at Butha
Buthe told PW1 or 3 why they were being taken to Hlotse.
alleged by the defence witnesses that the Occurrence Book must have
been filled to mark the event of these people being taken to their
home district charge office at Butha Buthe as a rule. But the
strangest thing is that this Occurrence Book which in PW1 discovery
affidavit was said to be in his possession was not produced and the
excuse is that it got lost.
taken to the Maputsoe factory Charge Office while PW3 was left at
Hlotse Police Charge Office. It is stressed by DW1 that both the Cell
Registers and occurrence books for these respective events were
filled but as mentioned in respect of the occurrence book for Butha
Buthe none of these items containing the
regarding the whereabouts of the plaintiffs who by now were clearly
suspects were produced. The reason again being that these vital items
regarding the whereabouts of suspects were irretrievably lost. This
fact alone is enough to raise one's eye brows but taken in
conjunction with the fact that there was a simultaneous disappearance
of these documents in respect of events relating to the locking up of
PW3 at Hlotse and in relation to the locking up of PW2 the following
day i.e. 14-05-96 at the Police Charge CID Office at the bridge at
Maputsoe these disappearances stop being mere coincidences but
instead smack of a well-calculated design to ensure among other
things that the relatives of the suspects, who perchance could go to
Butha Buthe or Hlotse where one or two of their next-of-kin were
known to have last been seen heading to, would just draw a blank in
their endeavour to trace where the suspects were kept. Indeed this
strong suggestion put to defence witnesses by Mr. Teele for the
plaintiffs was not gainsaid.
of the plaintiffs was taken individually and at separate hours to the
police interrogation centre near the factories of Maputsoe. PW1 on
arrival at this centre was asked if he knew what he had been brought
there for. He replied no. He
that he had been brought there in connection with the death of one
been dead some five or so months previously from unnatural causes. In
fact even Dw1 admits that some of the Butha Buthe police were
implicated in the shooting and killing of Mahlatsi. That is why the
investigation team into Mahlatsi's death consisted of Hlotse,
Maputsoe and T.Y. policemen.
known Mahlatsi as not only a co-villager but a fellow businessman, a
friend and someone with whom he shared similar political views and
accordingly belonged to the same political party led by the then
Prime Minister the late Dr. Mokhehle. They also belonged to the same
surprised to learn for the first time while there that he had been
brought there for he had killed Mahlatsi. He asked whether this was a
question or a statement being told to him. They said they were
telling him that he had done so. He denied it.
PW1 found this statement by police most disconcerting for he and
others had been active and playing a leading role in ensuring that
Mahlatsi was given full political burial. PW1 had been involved in
the funeral preparations without
any efforts in that regard.
PW1's denial of having killed Mahlatsi the police told him that he
was going to tell the truth. They ordered him to undress. He thought
they meant he should put off his blanket, and because he was unable
to do so as he was still handcuffed, the handcuffs were removed from
his hands. Thus he put off his blanket whereupon he was ordered to
strip naked. He asked why. The answer was in the form of a solid
butted blow to his rib-cage with a gun wielded by a young
light-complexioned policeman whose name PW1 did not know to-date.
However the ones who were present were DW2 Mofilikoane, DW1
Chabalala, one Mofihli and one Moonyane. The others this witness
didn't know by name including a policewoman.
stripped naked at once. His hands were tied to his back. His legs
bent backwards as he lay on the floor till they too were fastened to
his hands. They took a length of rope and tied his thighs together
with it and latched them to his legs. They took a woollen hat pushed
it down his face till it reached his neck and covered it with a
plastic bag. Thus he couldn't see through the woollen hat. They took
a motor car tube, tied it across his face, and one of the men who
pinned his knee behind PW1's upper back pulled the tube tight across
PW1's face to ensure that no air could reach
nostrils or leave them in inhaling or exhaling. At the same time they
electric shocks at his buttocks while asking him with what and with
whom he had killed Mahlatsi. The same treatment was administered to
PW2 and PW3 respectively in their turn.
he denied killing Mahlatsi. Then the police continued subjecting him
to electric shocks and suffocating him till his bowels went loose
such that he soiled himself with faeces and urine.
while they changed the torture tactic and this time made him squad on
the ground; tied his hands flanking his knees and bent legs to the
front of the knees; tied the ankles of his feet to the thighs and
then pushed a stick through the archway created by bent knees on the
upper portion thereof and lowered elbows on the lower; with both ends
of the stick protruding on either side thus letting the body hang
freely between the two tables. Then he was subjected to further
electric shocks and suffocation.
could bear it no longer he admitted having killed Mahlatsi. Asked
with what he hazzarded a guess and said "with a 765 firearm".
This made matters
therefore he said "with a 9 mm". That didn't help either
till he mentioned an A.K. 47. Thereupon they said "yah".
the question with whom he had killed Mahlatsi he hazzarded a guess at
names of Seamatha Seamatha, Bothata Marake till he got some relief
when he mentioned the name of his friend Masiu Molemohi PW2.
passed out and came to at some later stage still handcuffed and again
was tormented with remarks such as that he should go tell people with
whom he had buried Mahlatsi that it was not police who had killed him
but he and co-plaintiffs. He promised to do so. The police asked him
if it was Mokhehle who said they should kill people.
PW3 were subjected to similar treatment with the result that because
of pain and discomfort they implicated themselves and each other. PW3
said he urinated on himself during his torment. PW2 said he just
passed out his body remained numb.
related a story which sounded very true and devoid of exaggerations
awoke in the dark and was unable to walk he was tossed into the back
of a van which drove from Maputsoe in the night and came to an
unknown destination where he was kept together with two cell mates
who told him that this place was at T.Y. He said that along the way
he suspected but couldn't be certain because of numbness that he
might have lost one of his loose teeth. Indeed when his senses to his
face had sufficiently recovered he realised he had lost his cutting
tooth and feared he might have done so when he was tossed into the
back of the van. DW1 denies that PW2 was even taken to TY police
station. He denies that he was rough-handled such that he lost his
tooth. But PW2's credible evidence is that he even showed the prison
warder the fresh gap created by that occurrence . In any case one is
at a loss to find what it is supposed PW2 gains by lying that he was
transported to TY when he was not.
EVALUATION AND ASSESSMENT OF EVIDENCE
reports bear out that the 3 plaintiff witnesses bore clear signs of
injuries around their wrists and various other parts of their bodies.
The important feature is that after remaining in police custody from
13th May to 17th May in respect of PW1 and 3 and 14th May to 17th May
in respect of PW2 they were remanded in
where they remained till they were freed on bail on 31st May. The
1st June 1996 they went to see Dr. Knight who examined them and made
findings of injuries he had observed on these plaintiffs. Given that
nowhere could these plaintiffs have received these injuries except
when they were in custody, the question is why should they finger the
police as liable rather than their immediate custodians the prison
warders . This question was put to DW1 who was lost for words to
explain it. He was clearly in a cleft stick and resorted to calling
it a mystery when his attempt to say that prisons would not accept
them into their custody if they were injured was foiled by evidence
to the effect that prison warders actually took PW1 for medical
sordid state of treatment meted out to these plaintiffs is most
horrifying indeed. They were denied water and food from the time of
their arrest till being remanded in custody on 17th. They got food
when their wives and relatives brought them food that day. PW2's
hands were not able to hold anything as a result he was being
hand-fed by his wife.
It is sad
also that despite availability of the habeas corpus their relatives
or next-of-kin who had seen the state they were in did not think of
availing the plaintiffs
blow dealt DW1's hope that the false scheme he had fashioned would
carry the day was when he suggested that the plaintiffs had an
opportunity to report their ordeals, if any, to the magistrate before
whom they came according to him when an application was made by
police for extension of their detention in police custody.
first place the plaintiffs denied ever being brought before a
magistrate for the suggested purpose. One of them even suggested that
such documents which the magistrate is said to have signed were
fraudulent documents by aid of which governments are made to fall. If
the statement by this witness at first blush appeared to be a product
of an overwrought mind the truth was not far in coming to the surface
because isn't it the case that repeatedly authorities in various
disciplines are agreed that the truth fears nothing but concealment ?
the truth divulged itself by indication on the papers signed by the
learned Magistrate Mputsoe that nowhere in them is it indicated that
authority is granted to further detain the plaintiffs from 15th May
1996 to a specific date as would be not only normal but accord with
warrant that was granted is no different from a warrant given to
police to go and apprehend a suspect. But should the suspect have
already been arrested when this warrant is granted then it would have
the effect of detaining the suspect further upon it being served on
learned magistrate must have therefore been duped into thinking that
the suspects were yet to be arrested when she signed their warrants.
If this is not so, then it would be ridiculous to expect a magistrate
to require before her or him a suspect in respect of whom a warrant
is sought to have him arrested. A suspect can only be brought before
a magistrate if he has already been arrested and what is required of
a magistrate is a warrant for further detention. But if the suspect
is already in detention and the information is deliberately concealed
from the magistrate then the warrant which is for initial arrest
would have the effect of being a warrant for further detention
without detainees being brought before the magistrate because she or
he is labouring under the false belief that the detainees are at
large. Common sense dictates this is what happened here otherwise
there would be no reason why plaintiffs would adamantly insist that
they were not brought before a magistrate if indeed it was for their
further detention. I don't think they would risk destroying their
otherwise strong cases by indulging in such extravagantly foolish
story has a high ring of truth to it and I believe it. I thus reject
the story for the defence which does not tie up with basic common
sense let alone the truth. For instance if as DW1 and 2 would have
this Court believe that within round about half an hour each suspect
had cooperated fully and confessed; why should such suspect be kept
beyond 24 hours in police custody. What is more why should details of
each of the suspects disappear without trace in the police custody?
Further still; why should they all bear signs of torture received
during the period spent in police custody.
OF THE LAW ON FACTS & CONCLUSIONS
as irregular that plaintiffs were arrested without warrant and
detained, further that they were not informed of the reason for their
arrest. This is not only irregular but indeed unlawful. Section 32
(4) of our CP & E Act 7 of 1981 reads :
"Whenever a person effects an arrest without warrant, he shall
forthwith inform the arrested person of the cause of the arrest".
keeping with this important law is the authority of Botha vs LUES
496 head note by Appellate Division saying :
"..................There were no physical signs of his
[Appellant] being under the influence of alcohol or drugs, but
respondent nonetheless arrested appellant (without furnishing
reasons) on the grounds of an alleged suspicion of the use of alcohol
or drugs so as to compel him to submit to a medical examination
against his will. After a quarter of an hour's detention in the
police station appellant was formally charged with reckless driving
and released without anything having been accomplished because there
was allegedly no doctor available. Held, on the facts, that appellant
had to succeed in his appeal, even assuming that the onus had rested
on him throughout: there were insufficient grounds for a reasonable
person to harbour the suspicion that appellant had committed the
offence of driving under the influence of liquor or drugs and
therefore to proceed with exercise of his power of arrest".
the documents filed by the defence show is that the police applied
for a warrant after 48 hours had lapsed following the arrest and
Mr. Teele's submission that the warrant was sought without the
necessary reasonable suspicion or evidence under the law. Even the
initial arrests were done without reasonable suspicion and were as
such ultra vires S.25 (b) of our CP&E 1981; purportedly employed
by the police. This provides :
"A peace officer may, without any order or warrant, arrest any
person in whose custody anything is found which it is reasonably
suspected is stolen property or property dishonestly obtained and who
is reasonably suspected of having committed an offence with respect
to such thing".
of the warrant by the magistrate could not validate the initial
with particularity the fact that the statement allegedly relied upon
was of one Mikia Matlanyane which was obtained after his arrest. If
he was subjected to the same treatment during his arrest as the
plaintiffs were it is no surprise that he implicated them for as long
as he was under such treatment and when placed before court which
adopts no such tactics he indicated that the had implicated them
person whose statements allegedly implicated the plaintiffs is one
Pallo Moaki. But he likewise is said by DW1 to have turned against
his evidence at P.E. hardly any surprise then that the officer
presiding found that the plaintiffs were not implicated and dismissed
the case for the crown.
the plaintiffs told me that if they were involved in the killing of
Mahlatsi and knew of colleagues who were involved and whom they
wished to shield from prosecution they would at the very initial
stage of receiving electric shocks and being suffocated have come out
with the truth. But lo! PW3 related a sad story of feeling water
being applied at the spot immediately above the parting of his
buttocks and an electric nail being introduced into this water. The
Court takes judicial notice of the fact that application of water to
live electrical current potentiates its effect. PW3 testified that
water was liberally applied on all areas in his body where the
electrically charged metal would immediately be run on his body. He
and PW1 had seen a battery and electrical cords leading from its
terminals to this nail-like metallic point which was applied to their
bodies. DW1 and 2 denied presence of any such thing. In fact they
made a great meal of the absence of a second table in the
Mthimkulu & anor vs Minister of Law and Order 1993 (3) SA 432 is
illustrated the serious view taken by Courts of law of the attitude
adopted by police making light of arrests without warrants and
unlawful detentions resulting from their abuse of power.
433-C it is said that plaintiffs "were detained in the police
cells at Grahamstown from 8 March until 11 March, on which latter
date the magistrate issued an order............authorising their
further detention for purposes of trial. The plaintiffs were
thereafter detained at the Grahamstown prison from 11 March 1991,
their cases being remanded from time to time until 30th July 1991,
when each was prosecuted..................for attempted theft of a
motor vehicle and acquitted...........
plaintiffs thereupon instituted separate actions ( later
consolidated) for damages against the defendant for (a) wrongful
arrest and detention, in the amount of R70 000 under this head; (b)
malicious prosecution, in respect whereof each plaintiff claimed R20
000.00 and (c) assault, the second plaintiff, only claiming R2500.00
in this regard. The defendant denied liability in respect of all
claims made against him".
set out factors taken into account in respect of quantum.
defendants in the instant case bore the onus of proving that the
arrest and detention were lawful but it is my considered view that
they have failed to discharge this onus.
I have no
doubt that the plaintiffs were assaulted as reflected in the evidence
heard before this Court. The manner of their assault was most cruel.
No wonder in going over the details of their ordeal in this Court PW2
and 3 could not contain themselves and uncontrollably wept such that
in respect of the elderly gentleman Masiu Molemohi born in 1931, the
Court had to adjourn till" he had regained his composure. Such
things don't just happen. Men are known to resist giving way to
emotion expressed in weeping which is regarded as a sign of weakness.
The Court was also on the alert lest the plaintiffs be resorting to
some form of stage play by adopting these tactics. But there was no
such thing in the manner in which the plaintiffs comported themselves
in this court. Theirs were sincere tears not anyhow linked to some
performance calculated to play up on the court's sympathy.
as a sign that PW1 in particular was not out to settle scores in this
anyone, he didn't try to withhold the tribute he felt the light
complexioned young policeman who had been cruel to him by butting him
on the rib-cage when he was hesitant to comply with the order to
strip naked, and later pushed him to the ground when PW1 showed signs
of inability to perform certain tasks as his hands were tied. The
tribute he paid him was that the said policeman later came to him and
said "it seems you are not such a bad man after all". They
shook hands on this and the policeman kept the statement given by PW1
which was consistent with the truth as PW1 knew it.
most elderly of the plaintiffs like his colleagues suffered the
indignity of being made to strip naked before men who were in age
equal to his sons and grand children. Not only so, he discovered that
there was a young policewoman who must have seen his nudity. The same
goes for PW1.
lost his tooth. Again because of his lack of inclination to
exaggerate he indicated that the tooth had gone loose for some time
previously but only must have got lost in the ordeal he suffered.
plaintiffs suffered pain and humiliation. There couldn't have been
suspicion that PW2 had hidden a gun in his yard as the spot he
pointed out in the ground showed no sign of disturbance dating from
the period when Mahlatsi was shot dead.
an officer of this Court Mr. Masoabi for the defendants has filed his
heads of arguments which are largely consonant with what this Court
has found to be credible and therefore acceptable evidence in this
Court. To that extent on the facts there is a lot of common ground
except in head 6 where Mr. Teele has sought to cross swords with Mr.
Masoabi where the latter sets out as follows:
"........................looking at the evidence as a whole the
balance of convenience
favours the plaintiffs with the exception of arrest. The arrest was
not unlawful since Warrant Officer Chabalala effected the arrest. See
Sect 24 (b) CPE Actl981".
exception recognised by Mr. Masoabi as clothing with legality the
unwholesome act of the perpetrator Chabalala misconstrues the
authorities I have cited above which are a foundation for the
proposition that once a suspect has been arrested without a warrant
by a Warrant Officer then such officer owes a duty to the suspect to
inform him why he is being arrested. In the instant case the
not explained to them why they were to accompany Chabalala and his
colleagues to various charge offices. Chabalala himself testified
that the suspects were not under arrest. The suspects however felt
that their movements were subject to Chabalala's rule and sway.
Chabalala's testimony in this respect is at variance with
Mofilikoane's who wishes to inform the Court that Chabalala is wrong
to say he didn't inform the suspects of the reason why they were
being removed from their respective homes at the crack of dawn in the
cold month of May in 1996.
credit Mr. Masoabi deftly betook himself from this baseless position
and abandoned the worthless stance it represented.
complains of constant headaches suffered since his ordeal in the
police cells. In fact all of the plaintiffs continue consulting
doctors for chronic ailments precipitated by these assaults. It is
important to indicate that each one of them while undergoing this
ordeal preferred death. In fact PW2 when taken home to go and point
at the gun supposedly buried in his yard said this was his ploy based
on his hope that he would obtain rat poison where he knew he kept it.
To his disappointment the house was locked when he and the posse of
police arrived in his wife's absence. Thereupon he took a spade and
made to dig at the spot that betrayed no sign of
having been dug under it for previous decades on end. He later said
found at Butha Buthe Cooperatives. Again he was hopeful that he would
get the rats bane in a spot in the office where he would seize the
bottle and empty its contents into his stomach at a gulp. But again
the rats bane had been removed from its usual and familiar place. The
purpose for swallowing rats bane was to ensure that he is kept out of
his misery championed and brought about by Chabalala and his group of
view to assisting the Court in making a proper determination of
damages in this case Mr. Masoabi very dutifully has attached to his
heads an important decision of the Court of Appeal delivered by the
honourable Leon J.A. in C of A CIV No 22, 20& 21/96 PAUL SETSETE
MOHLABA & 2 ors vs COMMANDER OF THE ROYAL LESOTHO DEFENCE FORCE &
case is reported in PAUL SEBETE MOHLABA & 2ors vs COMMANDER RLDF
& ANOR 1995-96 LLR & LB page 235.
239 referring to the torture carried out in the "torture
referred to by the Court below the honourable Leon JA says Mohlaba,
that is not dissimilar from the ordeal suffered by plaintiffs in the
"was asked about stealing the government money which he denied A
rubber tube was twisted around his neck which suffocated him. If he
wanted to talk he was ordered to stamp his feet which he did in order
to get some air. But he refused to confess. They held his feet and he
fell to the ground hitting the cement floor with his forehead. They
suffocated him with the tube again and he felt that he was dying. He
tried to hit the floor but he did so with his snails as he was lying
down. He lost a toe-nail. One of his tormentors suggested the use of
electricity. The plaintiff became so frightened that he urinated all
over himself He was then made to kneel on crushed stones. Both his
nose and the place where his toe-nail had been, began to bleed. His
testicles were twisted. Because of the pain he was carried back to
amazing to realise that the above acts were committed on 2nd May 1990
while those in the instant case were effected on 13th and 14th May
1996. There appears to have been a pattern of long standing in terms
of which police delighted in tormenting and torturing helpless
suspects committed to their custody under guise of performing
legitimate interrogation permitted by the law. In fact this sordid
pattern dated far back into the 1980's and beyond. See Solicitor
General vs Mapetla LAC
in which a respectable Chief of Masianokeng and the father of the
Chief Justice who had survived his son successfully sued the then
Lesotho Government for damages for unlawful detention and assault.
The losing party appealed against the verdict and the award of Ml 1
000.00. Though the award was reduced to M8 000.00 by the Court of
Appeal the appellant was ordered to pay 80% of the respondent's costs
on appeal plus its own costs.
to chief Mapetla Wentzel JA said at page 128:
"The respondent is an elderly man (nearly 78 years of age at the
relevant time). He is a man of standing in the Kingdom and prominent
in the life of the Kingdom. He is a Chief. His family is a
distinguished one. Indeed, one of his sons was the Chief Justice. He
himself contributed to the intellectual life of the people of
would wryly but correctly feel justified in concluding that it is
precisely for those qualities and the fact that his son had been
Chief Justice that Lesotho Police found it fit to torment and
humiliate him. I say so because even the present Chief Justice around
the same period that Masena Molemohi and Thamae
being thus tormented was commandeered by police troopers in the night
his will moved from pillar to post yet nothing was done about that
reaction is provoked in me by the honourable Leon's remarks made no
doubt through desperation at page 242 where in referring to the
suffering endured by plaintiff Phiri who even passed out in the
"When I read this record I was appalled that human beings could
be treated in this Kingdom in such a barbaric fashion. The conduct of
the offenders warrants the strictest censure for it is reminiscent of
some of the KGB, the Gestapo as well as treatment meted out to the
late Steve Biko".
share the sentiments of the learned judge so aptly and eloquently
expressed I would hesitate to say my Court has had its fair share of
judicial notice taken of the steve Biko's and the like in the shape
of Motuba and his companions, the late Deputy Prime Minister Baholo
and many others whose peril remained obscure to the learned appeal
court judge hence his surprise and disbelief that "human beings
could be treated in this Kingdom in such a barbaric fashion".
serves as a breath of some fresh air that the same learned judge has
honour of heading the Commission of Inquiry into Public Disturbances
of 1998 at page 131 of which his Commission makes the following
recommendations regarding the Army and Police
procedure of recruitment should be reviewed with the particular
object of recruiting persons who are suitable, without reference to
their political affiliations
should be a gradual phasing out of persons who are unsuitable,
particularly having regard to the need for a professional and a
political Army and Police Force
should be devised a comprehensive re-training programme for Police
and Army personnel in order to achieve what is referred to in (II)
criteria should be laid down based solely and exclusively on
qualifications and merit.
on my part wish to point out that the remarks made during so-called
interrogation of the plaintiffs in the instant case leaves me in no
doubt that the so-called team of investigation into the death of
Mahlatsi and its leader were motivated by nothing else but political
fervour geared against the brand of politics to which the plaintiffs
subscribed. Hence reference to their leader who then was the
Country's Prime Minister in most derogatory terms unbefitting a
public servant in the shape of any policeman in any country who is
required to uphold the law administered by the government of the day
headed by such Prime Minister.
culprits have been promoted is a sign that the system has failed not
only the plaintiffs in the instant case but all those who believe in
the rule of law.
therefore strongly recommend to the Attorney-General working in
conjunction with the Director of Public Prosecutions to set in motion
the machinery of investigation into possible attempted murder of the
three plaintiffs before this court or assault with intent to do them
grievous bodily harm. The object of that investigation would best be
focussed on the so-called investigation team and their leader. If
need be investigation into Mohlatsi's death should be revisited and
given proper direction.
found as established the fact that the plaintiffs have been subjected
to untold pain. They have been humiliated and made to suffer
indignity and unwholesome anguish and anxiety regarding their safety
and well-being. They were kept in the cells without food or water.
Nothing was said about whether they could wash or enjoy change of
clothing. Where would they have had change of clothing when their
next -of-kin were deliberately kept from acquiring any knowledge of
the plaintiffs' whereabouts.
all these things into account I would firmly say that the plaintiffs
have made a very strong case each against the defendants.
result Judgment is entered for Plaintiffs in the sum of
000.00 in respect of unlawful arrest and detention each;
945.00 damages for assault, pain, shock and suffering each;
being in respect of medical expenses each and
of suit each.
PLAINTIFF : MR. M.E. TEELE
DEFENDANTS : MR. MASOABI
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