IN THE
LESOTHO COURT OF APPEAL

C of A
(CIV) 14/90

In the
appeal of:

LEROTHOLI
JACOTTET THEKO Appellant

and

THE
COMMISSIONER OF POLICE First Respondent

THE
ATTORNEY-GENERAL Second Respondent

Coram

Ackermann
J. A.

Kotze J.
A.

Steyn
J.A.

JUDGMENT
Steyn
J.A.

The
appellant in this matter is the half brother of one Khoabane Letsie
Theko who is the Principal Chief of Thaba Bosiu. For purposes
of
convenience I will refer to Chief Theko as the detainee. The detainee
was arrested and detained on the 4th June 1990 under the
provisions
of the Internal Security (General) Act 24 of 1984. An urgent
application for habeas corpus was brought on his behalf
by the
Appellant. The High
Court issued a rule nisi which called upon the
respondents to show cause on the 11th June 1990 why the detainee
should not be released
from custody.

A notice
of intention to oppose was filed and an answering affidavit was
submitted. This was deposed to by one Ralefume who

2

describes
himself as "a member of the Royal Lesotho Mounted Police
attached to the Royal Intelligence Service". This affidavit
was
attested to on the 11th June 1990 and filed on the same day.

It is
common cause that the detainee was released from detention on the
13th June 1990 being the extended return day of the rule.
Therefore
when the matter was argued on that day the only issue was a question
of costs.

The Court
a quo after hearing argument and in a judgment delivered on the 23rd
July 1990 discharged the rule nisi and dismissed
the application with
costs.

Certain
events occurred during the course of the detainee's detention to
which considerable attention was directed in argument.
(These events
are described by an attorney of this Court one Winston Churchill
Maqutu. He says that on the 4th June 1990 he received
e message to
the effect that the detainee had been taken by the police and had
requested to see him (the deponent). He says he
found the detainee
in
custody at the offices of the Royal Lesotho Intelligence Services
for
the district of Maseru. He asked permission to see him from
the officer commanding the Maseru district one Col. Thaha, who
granted
him such permission and informed him that the detainee had
been arrested in terms of the Internal Security Act. Mr. Maqutu says

that he asked for documentary information disclosing the grounds upon
which the Chief was being detained. A promise was made that
this
would be supplied - it was

3

being
prepared and typed. He again went to see Col. Thaha on the following
day to obtain the document, but was informed that it
was not yet
ready and he was advised to return on Thursday the 7th June. During
this discussion one Major Mokhele was also present,
and according to
Mr. Maqutu these officers expressed an eagerness to begin their
interrogation, of the Chief.

On Friday
the 8th he again sought the document from Col. Thaha, he was told
that "the interrogation had long been completed
and that my
client (the detainee) was about to be released". In Mr. Maqutu's
presence Col. Thaha phoned persons he alleged
were his superiors and
he then informed Mr. Maqutu that his client would be released that
morning. Accordingly the need for the
document which had been
requested had fallen away. Col. Thaha added that his men had
completed their
interrogation of his client. On Saturday the 9th
June Mr. Maqutu says that he received information that his client had
not been
released. He immediately went to the offices of the Royal
Lesotho Intelligence Service and he was referred to Col. Thaha who
was
off duty. He visited him at home where Col. Thaha apologized for
his failure to release the detainee alleging that the authority
who
had to take the final decision
regarding his release had gone to
the Agricultural Show in the outskirts of Maseru. He promised to do
everything in his power to
obtain the release of the detainee on the
following day i.e. Monday the 11th of June. He repeated the
information that "the
interrogation of my client had been
completed on the Tuesday saying that he had answered all questions
satisfactorily." He
added that there were no grounds for

4

keeping
him in custody any longer.

Mr.
Maqutu goes on to attest that on the following day the 10^th
June, he was permitted to see the detainee in the presence of Major
Mokhele. Major Mokhele also confirmed that he and his colleagues
had
completed their interrogations on the 5th June 1990. Mr. Maqutu
specifically avers that the interrogation was done under the
command
of
Col. Thaha and Major Mokhele and he was left in no doubt that
Col. Thaha and Major Mokhele were in charge of the interrogation. On

the 12th June, that is the day before the detainee was released he
again visited the offices of the Royal Lesotho Intelligence
Service
where he met Col. Thaha and Major Mokhele who again confirmed that
they had completed their interrogation and that they
were still
awaiting
clearance of his release from their superiors.

In
dismissing the application in the Court below, the presiding judge
concluded that the suspicion of the Police Officer making
the arrest
that the detainee was involved in subversive activity was based on
reasonable grounds and that the arrest and the detention
of the
detainee were lawful. Concerning the issue of the continued
detention
of the detainee in the circumstances described in Mr.
Maqutu's affidavit, the learned judge a quo says the following:

"What is important is whether the initial arrest and detention
was lawful or not. If it is found that the detention and arrest
was
lawful it will not make any difference that the detainee was in
custody a few days after the interrogation was completed."
He
goes on to say that "I do not mean that the police were entitled
to keep the detainee even after they had”

5

completed interrogating him as long as the period of 14 days has not
expired, they must give sound reasons why they could not do
so."

Considerable
argument was addressed to us challenging the lawfulness of the
original arrest and detention. In view of the narrow
confines of the
present appeal - being concerned only with the issue of costs - and
because, if we are of the opinion that the
continued detention of the
detainee in the circumstances attested to by Mr. Maqutu
was
unlawful it would resolve the matter, we confine this judgment to a
consideration of this aspect of the appeal. In the first
place, I
must point out that no attempt was made by the respondents to reply
to or challenge the correctness of the averments contained
in the
affidavit of the Attorney Mr. Maqutu. The issues in our view must
therefore be resolved on the basis of the acceptance of
the
unchallenged evidence of
an officer of this Court. It follows that
we must proceed on the assumption that Mr. Maqutu was repeatedly
informed by high ranking
officers in charge of the interrogation that
it had been completed, that the detainee had answered all questions
satisfactorily
and that he was about to be released. Mr. Maqutu was
given this information on various dates between the 8th and 12th
June. It
is difficult in the circum- stances to understand how the
investigating officer -whose rank is never
disclosed - could on
the 11th June, after the events deposed to by Mr.
Maqutu, have
attested to an affidavit justifying the detention of the detainee
upon the grounds that both the original arrest on
the 5th June and
the detainee's ongoing detention were lawful and justified.

.6

In the
matter of MASEKO v ATTORNEY GENERAL AND COMMISSIONER OF POLICE C of A
(CIV) No. 27 of 1988 Ackermann J.A. says the following
a: p.5:

"It is trite law chat when the liberty of an individual has been
restrained or limited and the person whose liberty has been
so
affected challenges the validity of such restraint or limitation as
the appellant in this case has challenged his arrest and
detention by
the police, the onus of establishing
the unlawfulness thereof is
on the arrestor of the person who caused the arrest"

and the
learned Judge refers to the case of the MINISTER OF LAW AND ORDER AND
OTHERS v PARKER 1989 (2) S.A. 633 A and the authority
it is cited. At
p. 22 of the judgment the learned Judge of Appeal says the following
in regard to the period of detention:

"There is in principle no difference between the detention of
one day, or one week or one month. In all these cases a person
has
been deprived his liberty - one of the most basic of his fundamental
rights."

On the
question of the incidence of the onus in matters cf this kind see
also DURING NO vs BOESAK AND ANOTHER 1990 (3) S. A. 661(A).

I am of
the firm view that the appellant has failed to discharge the onus
that the continued detention of the detainee after the
meeting
between Mr. Maqutu and Col. Thaha on the 8th of June 1990 was lawful.
Indeed on the uncontroverted evidence before the
Court a quo, no
grounds whatsoever existed why the detainee was deprived of his
liberty from the 8th of June until his eventual
release on June 13.
The Court below

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erred in
holding as it did, that it did "not wish to make any decision on
this point because it is not at all important. What
is important is
whether the initial arrest and detention were lawful or not."
This Court re-affirms the views of Ackermann
J. A. in the MASEK0 case
cited above, that there is in principle no difference between a
detention of one day or one week or one
month. There is a clear and
onerous duty on
those exercising these responsibilities to
exercise them with an acute awareness of their impact on the rights
of the citizen affected.
The Court will anxiously scrutinize the
exercise of these administrative powers to ensure that they are not
abused and that the
rights of the citizen are protected.

We wish
to make it clear that in deciding this matter we do not, by reason of
the fact that we concluded that the ongoing detention
was unlawful,
make any finding in relation to the original arrest. Indeed there is
a great deal to be said for the appellant's
contention that this
arrest and consequent detention were also unlawful.

In the
circumstances the appeal is allowed with costs and the order of the
Court a quo is altered to read: The rule is confirmed
with costs.

8

In the
circumstances the appeal is allowed with costs and the order of the
Court a quo is altered to read: The rule is confirmed
with costs.

JH STEYN

JUDGE OF
APPEAL

I agree

L. W. H.
ACKERMANN

JUDGE OF
APPEAL

I agree

GP KOTZE

JUDGE OF
APPEAL

Delivered
in Maseru on day of 1992.

For the
Appellant : Mr. W. C. Maqutu

For the
Respondents : Mr. K. R. K. tampi