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repealed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