HIGH COURT OF LESOTHO
Application of :
KA MASEKO Applicant
GENERAL 1st Respondent
OF POLICE 2nd Respondent
by the Hon. Mr. Justice M.L. Lehohla on the 9th day of December.
approached this Court on an urgent basis seeking relief in terms of
prayers (a) through (h) as set out in the Notice of
motion. The main
thrust of the application is as specified under (b) wherein applicant
craves for an order
"Directing Second Respondent and/or officers subordinate to him
to produce the body of applicant before this Court so that
may be dealt with in accordance with law."
alternative applicant asks that an order be granted under prayer (c)
"directing Second Respondent and/or officers Subordinate to him
to release Applicant forthwith."
exception of prayers (g) and (h) which are the usual formal prayers
for an order for costs and further and/or alternative
respectively, the rest of the prayers are each alternatives of the
application is opposed. It was set down for hearing on 23rd November,
1988. But at the request of applicant's attorney it was
25th November and further to 1st December 1988.
latter day after some brief argument based on the problems that
applicant and his attorney encountered from the officers
applicant resulting in applicant failing to study the opposing
affidavits or give his attorney of record any or proper
or even sign what passed for his replying affidavit I made an order
applicant an opportunity to consult in privacy with his attorney in
order to settle his replying affidavit;
the hearing of the matter to 6th December 1988;
that the question whether to refer the matter to oral evidence was
incapable of resolution at that stage because the
balance of the
record by way of applicant's replying affidavits was not before
corollary of the last point above is apparent that in fact the entire
application could as well have been argued along with
the point which
stands to be determined today namely whether or not to refer certain
contentious issues to oral evidence. I find
that nothing in the rules
prevents this procedure.
applicant's attorney being dominus litis was at large to persuade the
Court to focus attention on the issues raised on applicant's
relevant for preliminary consideration before the final determination
of the application as a whole.
it was submitted for the applicant that there are disputes of fact in
this application incapable of resolution save
by reference to oral
evidence. It was pointed out that the question whether applicant's
terms of the Internal Security Act 1984 section 13 was lawful and
proper is in dispute.
member of the police force may arrest without warrant a person whom
he reasonably suspects to be a person involved in
person arrested under this section shall not be detained by right of
that arrest for more than 14 days after his arrest, but
further temporarily detained by order of the Commissioner under
Criminal Procedure and Evidence Act 1981 shall not apply to a person
detained by reason of an arrest under this section.
section is without prejudice to any power of arrest conferred by
this or any other law."
attempt to highlight the points of dispute I was referred to Annexure
"J M" at page 14 of the record where in a
to 2nd Respondent
"It has now come to our notice that client has been detained per
your instructions under the Internal Security (General) Act
Client was certainly not arrested pursuant to the Act initially."
against the background of this extract from the letter that it is
contended that there is a dispute whether at the time of
the Commissioner of police had reasonable grounds under section 13(1)
suspecting that applicant was involved in subversive activities.
holds that the Commissioner knew that he was arrested for breach of
bail conditions relating to a charge based on the
same facts as the
Commissioner deposed to as grounding the basis for applicant's arrest
under the Act. Hence the question arises
if the Commissioner of
Police was aware of the facts in respect of which applicant was
charged (and this was in October) why then
was applicant charged
under the common law and not under
Internal Security (general) Act 1984? See page 54 paragraph 9.
referred to page 21 paragraph 24 regarding which it was submitted
that the Commissioner of Police in averring that he has
possession a considerable body of objective facts on which he based
his reasonable suspicion of applicant's involvement
activity does not take the Court into his confidence if in the same
breath he says that he cannot disclose them for
would be prejudicial to public interest and public safety.
submitted that paragraph 20 at page 20 is in conflict with 24 at 21
to the extent that the former alludes to the arrest as
resulted from breach of bail conditions and the latter from
applicant's indulgence in subversive activities.
20 reads :
"It is clear from the document marked 'J M' dated 15-11-88
annexed to the founding affidavit, that the applicant's attorneys
were aware from the second day of the applicant's detention that the
applicant was detained under my instructions under the Internal
Security (General) Act 1984. In any event the alleged breach of the
condition of bail by the applicant was a trivial matter and
into insignificance before the suspicion that the applicant had
indulged in subversive activities."
"The applicant was at all times arrested pursuant to section 13
of the Internal Security (General) Act of 1984 and that fact
known to the applicant and his attorney as soon as it was practicable
to communicate to them".
comparison of these two averments taken in the context in which they
have been made would rather be described as different than
referred to CULLER VS HAUPT 1988 (4) SA. 39 where it was held
"that not all disputes of fact were hit by the rule regarding
the foreseeability of serious dispute of fact : it applied only
disputes of fact which could not be resolved on paper."
on the above authority applicant's attorney submitted that as this is
an urgent matter and applicant was denied the right
to instruct his
attorney and that at time of arrest he was not informed that he was
being arrested under section 13 of the 1984
Act, but on the contrary
was merely told that he was being arrested for breach of bail
conditions and taking into account the fact
that the defamation
charge is based on same facts allegedly constituting the grounds for
his arrest, coupled with the fact that
the Commissioner says he was
aware of the facts deposed to in his affidavit at the time of the
arrest for the alleged defamation,
applicant couldn't be said to have
foreseen that dispute of fact would arise in these proceedings.
properly submitted that in situations of this nature the onus is on
respondents to justify the lawfulness of the arrest.
action taken has to be shown to be bona fide, while on the other hand
all applicant need say is that he has been detained
that the onus is on respondents to prove reasonableness of suspicion
and lawfulness of the detention.
Mr. Tampi relying on ABRAHAMS VS MINISTER OF JUSTICE AND OTHERS 1963
(4) SA. at 545 B where the following words appear
"Mr. Steyn contended in argument that before a petitioner can
succeed in an application for habeas corpus he must establish
is being unlawfully detained, and for this, he says, there is
authority both in the Roman-Dutch Law and the English Law."
that if the detention is lawful then all other queries fall away.
Indeed the head note at 542 of ABRAHAMS goes further
the position by stating that
"Once there is a lawful detention, the circumstances of the
accused's arrest and capture are irrelevant. Once he is before
Court it can hold him until his trial and conviction."
stressed by Mr. Tampi that there is no conflict of fact on the matter
having any relevance to the central issue before Court.
made to Tankiso Phillip Metsing's affidavit paragraph 5 at page 27
where the deponent averred
"Lethunya did not know why applicant had been arrested but I
knew that he had been arrested in connection with a number of
which included suspicion that he might be engaging in activities
prejudicial to the security of Lesotho and en allegation
that he was
in breach of his bail conditions. My mandate was to investigate the
latter claim and then to hand over the applicant
authorities whose responsibility is state Security".
buttressed his contention about the reasonability of the suspicion
that applicant was involved in subversive activity
and lawfulness of
his detention under the Act by making reference to paragraph 12 at
page 18 of the record where 2nd respondent
"I carefully studied the documents and I was startled to find
that they referred to a highly secret Government Project which
direct bearing on national security. There can be no doubt that the
publication of that report was highly detrimental to
security and the applicant's possession of a photo-copy of such a
highly sensitive document which was in the custody of
Bank of Lesotho made me very apprehensive."
referred me to a passage in SILVART VS MINISTER OF LAW AND ORDER AND
OTHERS 1987(4) SA. at 455 where it was said
"The relief prayed is for an interdict releasing applicant from
detention. The interdict de libero homine et exhibendo is
institution of the Common law which establishes as a right the
freedom of any person from unlawful arrest, imprisonment or other
bodily restraint whether by a public official, such as a member of
the South African Police Force, or at the instance of any public
authority, such as a Minister of State, in the
exercise of their statutory powers. Freedom from detention is thus
one of the ordinary rights of persons. The consequence is that
or detention, causing as it does a deprivation of personal liberty,
is in itself prima facie an infringement of a right
of the person
detained, a wrong and an injury. The interdict requires that the
detainee must be given an opportunity to ask the
Court for his
release, and provides that the Court must order his release, unless
the person who is detaining him shows that there
is lawful cause for
head note of the same authority at 453 it is stated that
"the test of lawfulness of the arrest is not whether the
detention was necessary for the purposes specified. The test is
whether, in the opinion of the person effecting the arrest, it was so
note re-echoes the submission made by Mr. Tampi when relying on 2nd
respondent's averment at paragraph 12. By contrast
with SWART it
seems to me that ABRAHAM has the merit of economy of words.
Tampi re-emphasised that even if there is conflict of fact it does
not impinge on the main issue. further that the main
thrust of the
arrest in terms of Internal Security (General) Act was in accordance
with the law; and he indicated that provisions
of this Act supersede
any that are contained in the C.P. & E 1981 Act.
referred to page 91 of The Civil Practice of the Superior Courts in
South Africa where Herbstein and van Winsen say :
"The court's discretion to order that oral evidence be heard, is
not unlimited, for such evidence must be confined to specified
At 92 the
learned authors go on to point out that
"....... the calling of oral evidence in application
proceedings, while it affords an expeditious end inexpensive method
of deciding a conflict of fact where the issue cannot reasonably
papers without hearing the witnesses, is neither appropriate nor
competent for the purpose of deciding real and substantial question."
Tampi submitted that the calling of oral
for purposes referred to by applicant's attorney would amount to a
'fishing excursion' designed to; "elicit admissions
supplement the allegations in the supporting affidavit." He
submitted therefore that the Court should refuse the
an order directing that oral evidence be called. See Herbstein &
van Winsen at 93.
pointed out further contrary to the rules the replying affidavits set
out a different case altogether. This Mr. Pheko denies
but prays that
should the Court share the same view with the crown then on the
authority of BOWMAM N.O. vs DE SOUZA RO'DAO 1984
SA. at 327 which
lends support to his earlier submission the Court should grant
indulgence grant to applicant.
further contended on behalf of the respondents that circumstances in
the instant matter beer no relevance to those in NKWENTSHA
MINISTER OF LAW AND ORDER 1988(3) SA. 99 relied on by applicant and
in which the procedure of referral to oral evidence was
the crown referred me to HOPF vs PRETORIA CITY COUNCIL 1947(2) SA.
752 at 768 where the learned Roper J. said :
"In the circumstances personal examination of the councillors
would only be undertaken with the object, or in the hope, of
eliciting from them admissions which might supplement the allegations
in the petition,"
of having obtained the opportunity to read the replying affidavits
before making a ruling in a matter of this nature is
that one is able
to have an over-view of the entire compass of the case and to
consider the accuracy of submissions that new matters
canvassed in such affidavits. See Hart vs Pinetown Drive in Cinema
Pty Ltd. 1972(1) SA. where Miller J. said
"The petition takes the place not only of the declaration but
also of the essential evidence which would be led at a trial
there are absent from the petition such facts as would be necessary
for determination of the issue in the petitioner's favour,
objection that it does not support the relief claimed is sound."
had this opportunity I am of the firm view that it would be
inappropriate to accede to this application. It is therefore
J U D G
Applicant : Mr. Pheko
Respondents: Mr. Tampi.
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