CIV/T/248/82 '

IN THE HIGH COURT OF LESOTHO

In the Matter of

NKAU MATETE .............. Plaintiff

and

MINISTER IN CHARGE OF POLICE 1st Defendant

COMMISSIONER OF POLICE 2nd Defendant

SOLICITOR-GENERAL 3rd Defendant

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the 10tn day of November, 1987,

Plaintiff herein filed with the Registrar of this court summons commencing an action in which he claimed against the defendants, payment of M40,000 as damages, costs of suit and/or alter­native relief. The defendants intimated intention to defend this action and duly filed their plea.

It emerges from one facts disclosed by both the pleadings and evidence that Plaintiff was detained, under section 12 of the now repealed internal Security (General Amendment) Act 1974 by Mokhotlong Police, acting in the course of their employment, from 25th September, 1979 until 14 November, 1979 when he was released. On 19th November, 1979 he was again taken into detention by Mokhotlonq Police who on the following day, 20th November, 1979, transferred him to Maseru. He was then taken to Morija police post where he was detained until 15th December, 1979 when he was returned to Maseru. He was eventually released on 18th March, 1980.

According to him Plaintiff was insulted, physically assaulted and tortured whilst under police detention in Mokhotlong, a fact which was, however denied by the Respondents. Plaintiff's evidence that Me was physically assaulted and tortured whilst under detention in Mokhotlong was confirmed by Dr. Makenete and Dr. Mohapeloa both of whom had the occasion to examine Plaintiff after he had been released from detention. i am prepared therefore to accept Plaintiff's evidence on this point. Although no insults, physical assaults and

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torture were met out to him whilst he was detained at Morija and Maseru, Plaintiff contended that contrary to the provisions of the Internal Security (General Amendment) Act, supra, he was, during his second detention, made to loose his freedom for more than 60 days. No detention order signed by the 2nd Defendant was served upon him nor was he ever visited by a magistrate during the entire period of his detention. The detention was not in accordance with section 12 of the Internal Security (General Amendment) Act 1974 and, therefore illegal.

As a result of that illegal detention he (Plaintiff) suffered damages amounting to M40,000 for which the defendants were liable. Wherefore, Plaintiff claimed, against the defendants as aforesaid.

In an attempt to shorten the proceedings, the parties filed minutes of pre-trial conference in which it was agreed that Plaintiff's detention during the period from 19th November, 1979 to 18th March, 1980 was unlawful in that it spanned for a period of 120 days. Plaintiff was, therefore,entitled to damages for that unlawful period of detention. Indeed it is common cause that Defendants even tendered payment of damages in the amount of M800 which tender was, however, declined by Plaintiff. All what this court is now required to do is to assess the quantum of damages for Plaintiff's illegal detention

From a proper reading of the pleadings, there is no doubt, therefore, that Plaintiff's claim for damages is based on the alleged illegal period of detention from 19th November, 1979 to 18th March, 1980, spanning for 120 days. It is significant, however, to note that subsection (3)(a) of section 12 of the Internal Security (General Amendment) Act 1974 provided

"(3)(a) Notwithstanding anything to the contrary in any law contained, any Senior officer as defined in the Police Order, 1971, may from time to time without warrant arrested any person whom he suspects upon reasonable grounds of having committed or intending or having intended to commit any offence under this Act, or any offence involving

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damage to property of the state or any person, or who in his opinion is in possession of any information relating to the commission of any offence or the intention to commit any such offence and detain such person or cause him to be detained in custody for interrogation in connection with the commission of or intention to commit such offence at any place designated by the commissioner, until such person has in the opinion of the commissioner replied satisfactorily to all questions at the said interrogation but no such person shall be so detained for more than 60 days unless rearrested on any of the grounds in this section contained." (my underlining).

The words I have underscored in the above cited subsection of the internal Security (General Amendment) Act 1974 clearly imply, in my view, that the police were empowered to detain plaintiff for 60 days i.e. from 19th November, 1979 to 18th January, 1980. Assuming the correctness of this view, it stands to reason that only the period of 59 days viz. from 19th January,1980 to 18th March, 1980, and not the first 60 days of Plaintiff's second detention, constituted illegal detention for which he is,therefore, entitled to claim damages.

Although he did not disclose what special position, if any, he held in society and it can, therefore, safely be assumed that he is an ordinary peasant, there is no doubt that Plaintiff was illegally deprived of his personal liberty for 59 days. As Willie puts it in his invaluable work Principles of South African Law (4th Ed ) at page 531.

"So highly does the court prize liberty that it protects every inhabitant of the state against any illegal infraction of his personal liberty."

Regard being had to the fact that no insults, physical assaults and tortures were met out to Plaintiff during the 59 days of his illegal detention, the claim of M40.000 damages is, in my opinion, some what inflated. Nonetheless, I am convinced that illegal deprivation of his personal liberty for a long period of 59 days was in our law, a serious injury for which Plaintiff is entitled to a substantial award of damages.

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In the circumstances, I take the view that the justice of the case will be met by awarding damages in the amount of R3,000 plus costs. It is accordingly ordered.

B.K. MOLAI

JUDGE

10th November, 1987.

For Plaintiff Mr. Maqutu

For Defendant Mr. Muguluma