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

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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

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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

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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”

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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.

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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.

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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