HIGH COURT OF LESOTHO
OF POLICE 1st Respondent
GENERAL 2nd Respondent
by the Honourable Mr. Justice J.L. Kheola on the 7th day of November,
an application for habeas corpus following the arrest of the
applicant on the 26th August, 1988 by two men who said they
policemen and were taking him to the police headquarters. He has
never been seen ever since the two men took him away.
deny that the applicant was arrested by any member of the RLMP and
say that he is not in their custody.
of the applicant, 'Mamolapo Qhobela testified that on the 26th
August, 1988 between 10.00 a.m. and 11.00 a.m. she and her
were at their home at Hillsview. They were in the company of one
Tsoakae Maboee (P.W.2) who is a friend of the applicant.
arrived at their house and said that they wanted
to the applicant. He got out of the house with them and they talked
to him outside just near the door. The applicant called
her and told
her that the two men wanted him to go with them to the police
further deposed that the men said they were policemen and one of them
showed the applicant his identity card. She did not check
identity card but she saw when her husband looked at it. He was
apparently satisfied that it was a genuine R.L.M.P. identity
She knew one of the men by appearance only because she dad often seen
him at the police headquarters when she visited her
cousin who is a
policeman. On the same day that her husband was taken away she and
Maboee went to police headquarters to find out
what was happening to
the applicant but they were told by some policemen that he was not in
police custody and that he was never
arrested by any policeman from
the headquarters. She later made enquiries at the C.I.D. offices and
at the Central Charge office
but in vain.
she went to the police headquarters with Maboee and when they arrived
there they saw the policeman she knew by appearance.
He was talking
to another man and after he had left they asked the other man the
name of the policeman he had just been talking
to. He said he was
Lehloa Tsolo. She says that she did not go to Lehloa Tsolo when she
saw him talk to another man because she
was afraid that he would do
to her the same thing he had done to her husband. She denied that she
went to the police headquarters
in order to fish for names of
policemen so that she could implication them falsely in these
Maboee testified that he was at the homo of the applicant when two
men came and took him away saying that he was wanted
at the police
headquarters. He knew one of them by appearance and ho noticed when
they escorted him away that the man he knew by
sight was limping. He
later established that the man's name was Lehloa Tsolo. His version
of how they found out the name of Lehloa
Tsolo differs from that of
P.W.I . Ho says that he met Lehloa Tsolo at the gate and asked him
the whereabouts of the applicant.
Tsolo said he was in the offices.
They parted and ho (witness) went to the offices and was told that
the applicant was not
there. He then wont back to the gate and
asked the policeman who was on guard at the gate the name of the
policeman he had just
been talking to a few minutes ago. The guard
said his was Lehloa Tsolo. At the time he asked the guard P.W.1 was
in the car outside
the police headquarters yard.
defendants called Staff Sergeant TSolo as their first witness. He
testified that he is stationed at the police headquarters
attached to records department because of the injury he sustained on
the foot which makes it difficult for him to carry
out normal police
duties. Ho has been attending a course at the Lesotho Institute of
Public Administration (LIPA) from October,
1937 and it will end in
March, 1989. On the 26th August, 1988 he was at LIPA from 8.00 a.m.
to 12.30 p.m. He denies that he was
at the homo of the applicant
between the hours of 10.00 a.m. and 11.00 a.m. on that day. The
records kept by the chairman of for
class and the course co-ordinator
can show that he was at LIPA and attending classes between 8.00 a.m.
and 12.30 p.m. The chairman
of the class records the number of
students present in the class
and if a
student is absent it can easily be established who he is.
end of the class the chairman gives a report to the course
co-ordinator. A student who absents himself from the class loses
marks. Staff Sergeant Tsolo admitted that it was possible for a
student to absent himself without getting permission from the class
chairman and the course co-ordinator. He does not know the applicant
and his wife as well as Maboee.
Petlane testified that he is the legal advisor to the 1st respondent.
After they had been served with the application
papers in these
proceedings he started making enquiries regard-ing the arrest and
detention of the applicant. He checked detainee
register and occurrence books at the police headquarters, C.I.D.
offices in Maseru and the central charge office
but did not get the
name of the applicant. He checked the people in the colls and found
that the applicant was not amongst them.
He denied that he did not
make a proper investigation by not contacting district commanders
throughout Lesotho to find out if the
applicant was not detained in
already stated above that there is a difference in the versions of
P.W.1 and P.W.2 as to how they found out the urge of Staff
Tsolo. According to P.W.1 they saw S/Syt. Tsolo talking to a certain
man and after they had parted she and P.W.1's to
that man and asked
him who the man he had just been talking to was. On the other hand
P.M.2 says that he actually met Tsoloat to
gate and asked him where
the applicant was.
been suggested by the respondents' counsel that P.W.1 and P.W.2 went
about fishing for names of policemen so that they could
than falsely. Because of the conflict in their versions of how they
found out the name of S/Sgt Tsolo, the suggestion
by the respondents'
counsel cannot be regarded as far-fetched and baseless. P.W.1 has a
cousin who is a police-man stationed at
the police headquarters but
she made no effort to seek his help in tracing the men who arrested
her husband. She decided to establish
the name of the man in the most
suspicious way. In paragraph 12 of her founding affidavit she deposes
that she knew the two men
by sight because she had often seen them at
the police headquarters. In her evidence before this Court she states
that she knew
only one of them by sight. It is not clear why she has
eliminated the other man.
supporting affidavit P.W.2 deposed in paragraph 8:
"I respectively aver that although I do not know the officers
who effected the arrest by names , these officers are very well
to me, I have known them for a long time as C.I.D. members and indeed
they still are. I have seen them time and again hero
in Maseru and at
the offices of 1st respondent as before."
evidence before this Court he stated that he knew one of the men by
sight and that he had known him for two years. Again
I find it
strange that he has also eliminated the second man and no search was
made for him. It is also significant that in his
evidence in Court he
mentiones that S/Sgt. Tsolo limps but this important and
distinguishing feature was not mentioned in the affidavit.
I tend to
agree with the suggestion that he noticed the limp while they were
waiting outside the courtroom.
the respondents' witnesses I was impressed by their candidness in
accepting the number of possibilities which were put
to them in
standard of proof in a civil cose was formulated by Lord Denning in
the case of Miller v. Minister of Pensions, (1947) 2 All
E.R. 372 at
p. 374 as follows:
"It must carry a reasonable degree of probability but not so
high as is required in a criminal case. If the evidence is such
the tribunal can say 'we think it more probable than not,' the burden
is discharged, but if the probabilities are equal it
in mind the demerits in the applicant's case which I have stated
above I cannot say the story of the applicant who bears
the onus is
more probable than that of the respondents.
is discharged with costs.
Applicant - Mr. Phafane
Respondents - Mr. Mohapi.
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