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CIV/T/15/97

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

BOLOETSI
SENTI 1st PLAINTIFF

KHOLLA
LENKO 2nd PLAINTIFF

and

THE
COMMISSIONER OF POLICE 1st DEFENDANT

THE
ATTORNEY GENERAL 2nd DEFENDANT

Judgment

Delivered
by the Honourable Mr. Justice T. Monapathi on the 2nd day of December
1999

There was
a taxi strike during and around the days of the 14th and the 15th
November 1996. It was said by the Defendants that the
Plaintiffs were
involved in that strike hence their arrest. The Defendants said the
strike was going on when the Plaintiffs were
arrested in the
afternoon of the 14th November 1996. They were subsequently released
on the morning of the following day without
a charge. As a result of
their arrest the Plaintiffs have instituted this action in this Court
in which they were claiming damages
and other relief as follows:

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1. Payment
   of an amount of M20,000.00 to each plaintiff for unlawful arrest and
   detention.

   
   

2. Interest
   at the rate of 18% per annum a tempore morae

   
   

3. Cost
   of suit.

   
   

The claim
was resisted by the Defendants who have pleaded that the arrest was
justified because inter alia that there was a strong
suspicion that
the Plaintiffs had committed a crime of malicious damage to property.

Both
Plaintiffs who were represented by Mr. Phafane gave evidence before
this Court. They both said they were taxi operators and
businessmen
in Maseru. On the day of their arrest they had received information
that they were being sought by police. The First
Plaintiff had even
just come from Bloemfontein. Plaintiffs similarly received a message
that they were being sought at about 2.00
pm and 4.00 pm
respectively. They reported themselves consequently and were
thereupon arrested. They were not informed of what
they had
specifically done but they were asked by Major Mofolo (D.W.1) about
heir knowledge or involvement in a taxi strike that
was going on.
They answered that they were not involved in that strike and neither
did they know about its circumstances as they
were learning for the
first time about the strike. They were locked in a cell and released
into the outside on the following day
in the early morning at about
7.00 am. They had then, for the first time, been taken out of the
cells since their arrest. It was
at that time when they got out to
empty their night soil buckets.

The
Plaintiff said they were to take the night soil buckets at some comer
of the Charge Office where they were in public view or
along which
way they could

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be seen
by members of the public. They said while in detention, they were
kept in a small cell of about two (2) or three (3) square
metres
where they lodged with ordinary criminals. In the cell they were
without bedding and had that night soil bucket or buckets
kept
convenient at the comer or comers for their use. There they were
denied food, water, toilet paper and an opportunity to wash

themselves. All of these were unanswerable.

Mr.
Putsoane for the Attorney-General said he accepted that these above
were the conditions that prevailed and otherwise some of
the things
such as toilet paper and washing facilities could have been made
available to the Plaintiffs had they demanded. When
cross examined on
this aspect Major Mofolo replied that the Plaintiff had had
opportunity to eat food brought by relatives or friends.
This they
partook behind his office while they sat enjoying the sun. Plaintiffs
could wash from a tap outside the office building
if they wanted to.
Three meals had been provided to all detainees as a tradition
everyday. Toilet paper could be given at anytime
if one wanted it
even if it had been unavailable in the cells. Counsel said that the
First Defendant was not condoning the conditions
but those conditions
were what was to be expected in ordinary police cells. Mr. Phafane
then argued that this was proof that the
Plaintiff, taking into
account their status in the society, had therefore been humiliated by
those demeaning conditions. I thought
it was not disputed that the
Plaintiffs were businessmen of repute. I had to find that this was
proved.

Major
Mofolo, a fairly senior police officer and a university graduate on
the other hand, on behalf of the Defendants, told the
Court that the
Plaintiffs were arrested on the 14th November 1996 upon a reasonable
suspicion of involvement in a malicious damage
to some buses and cars
at or near Borokhoaneng in Maseru. Major Mofolo said Plaintiffs were
informed of the reason for their arrest
I believed

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that they
were so informed as the Plaintiffs also suggested that the
questioning was about their involvement and knowledge of the
taxi
strike.

Major
Mofolo said there were other taxi operators besides the Plaintiffs
who were arrested on the material date. Similarly Plaintiffs
were
questioned in relation to the taxi strike which was going on. That
the strike was going on and that there would be further
investigation
by way of questioning was emphasized by Defendants' Counsel as having
justified the detention. My own inquiry would
revolve around whether
there was reasonable suspicion for the arrest. There had been damage
to vehicles of other people. Plaintiffs
and others were detained with
a view to continue with questioning at a later stage. Major Mofolo
said he knocked off at about 12.00
midnight.

Major
Mofolo stated further that on the following day Plaintiffs and other
people who had been arrested were again questioned still
on
individual basis and later in the day they were brought together as a
group. They were then released later at about 3.00 pm
without a
formal charge as the police felt they did not have a good case to
take to Court. Plaintiffs were however told that investigations
were
continuing and they would be called at a later date for further
questioning.

The issue
whether the Plaintiffs were told at any stage that they were arrested
and that they were simply asked questions and thereafter
locked in
cell was not vehemently pursued in argument. Mr. Putsoane suggested
however that he would submit that in law it was not
really necessary
to tell one in so may words that he was being arrested. So long is it
was made clear to the person that he was
arrested that was enough.
Learned authors Richard Clayton and Hugh Tomlinson in their CIVIL
ACTION AGAINST POLICE (Sweet and Maxwell
1992) (Clayton and
Tomlinson) accurately capture the principle at pages 162-163 by
saying that:

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"An arrest takes place when the arresting officer takes the
person arrested into his custody, by action or words resisting
him
from moving beyond the officer's control In order for arrest to be
effected it must be made plain to the suspect: by words/or
deeds,
that he is no longer free but there is no magic formula to be applied
in such cases". (My underlining)

Touching
the suspect, informing the suspect, controlling or restraining the
suspect's liberty can be an effective way of arresting
which is
consistent with the above words of Clayton and Tomlinson. In the
instant case Plaintiffs were told that they were arrested
and were
told the reason for their arrest which they understood. The debate
could not be pursued long enough to arrive at any conclusion
other
than that it was made plain to Plaintiffs that they were under
arrest.

Mr.
Putsoane said that the Plaintiffs were told that they were reasonably
suspected of being involved in damage to some vehicles.
That the
correct procedure for arrest was followed. That there was no reason
to doubt that he told Plaintiffs reasons for arrest
specially when he
even went further and questioned them which questioning was admitted
by Plaintiffs. There as was submitted: "The
arrest was lawfully
carried out in the circumstances". This conclusion would indeed
be simplistic and replete with misleading
permutations in answer to
the question whether there was a reasonable suspicion for arrest.

Major
Mofolo told the Court in his evidence that Plaintiffs were arrested
upon "a reasonable suspicion" of involvement
in malicious
damage to vehicles of others. He said he was relying on information
from other police officers as well as from informers
who he knew to
be sensible and reliable. It was submitted that reliance on such
hearsay evidence was in law permissible considering
the

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circumstances
of this case. Clayton and Tomlinson however warn at page 176 of their
book by saying:

"However a constable should act with circumspection when relying
on such evidence." As Lord Donaldson MR put it in a
recent case.
"It is not and cannot be the law that reasonable suspicion may
not be based solely, upon information derived
from an
informant........That said any police officer should treat such
information with very considerable reserve and should hesitate
before
regarding such information, without more, as a basis for reasonable
suspicion."

Plaintiffs
Counsel's contention was that the question that arose was whether
there were any objective facts in possession of Major
Mofolo on the
basis of which he could reasonably entertain the suspicion that he
had. He contended further that it had to be borne
in mind that
according to his own say so (when pressed under cross-examination) he
had said he did not have a suspicion but information
from fellow
officers and informers who he did not disclose. Hence they were
"faceless" as Mr. Phafane had somewhat not
so nicely put
it. It was contended that it was on this basis alone that Major
Mofolo had the Plaintiffs arrested and detained.
It was consequently
submitted that information from unidentifiable informers could not be
a substitute for reasonable suspicion.

I noted
that other than the hearsay statement by Major Mofolo that, there was
information to say that the Plaintiffs were involved
(or seen in the
vicinity) of stoning incidents in pursuance of a taxi strike no
objective facts were placed before the Court. Mr.
Phafane submitted
that this was considerably defective and an insufficient basis on
which a reasonable man could reasonably suspect
that the Plaintiffs
and not other persons were involved in the alleged offence.

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I needed
to clear the ground. The issue whether the grounds for arrest of the
Plaintiffs were reasonable was an objective question
as to whether
there was a good grounds for arrest. The grounds are information and
facts which should be placed before Court to
indicate the extent or
the way Plaintiffs were involved. Perhaps the facts that formed a
suspicion may be facts which may on proof
result in an acquittal. In
that event it may not mean that they did not form a reasonable
suspicion. As Clayton and Tomlinson aptly
put it at page 172:

"Even though a police officer suspects that for example, someone
has committed an arrestable offence, an arrest will be unlawful
if
reasonable ground for it do not exist. The test is an objective one."

"............namely whether a reasonable man assumed to know the
law and possessed of information which in fact was possessed
by the
defendant would believe there were reasonable grounds." (My
underlining)

The whole
exercise is about telling the Court some facts or information in
order to test whether it is a basis for or constitute
reasonable
grounds. Where there was a paucity of or a deficiency of facts the
best of which was that: ".....they were seen
at the scene"
how was the Court placed in a position by the Defendants to judge?
This was more so when no facts at all was
put before Court to look
into.

The above
problem was personified by the case of Major Mofolo who contented
himself with that he had information that there was
a taxi strike.
There was nothing in his evidence to assist the Court in determining
whether a reasonable man in his position should
have entertained the
alleged suspicion - that the Plaintiffs were involved. Neither did
the Defendants put in any other evidence
when some

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should
have been available. See the remarks of Kheola J (as he then was) in
MAKHETHA v MAKHETHA CIV/APN/231/90 19th November 1990
(unreported),
concerning the consequences of where the evidence of a witness who
may have been available but was not put in without
a good reason.
Most significantly it remained the duty of the Court to decide
whether on the facts presented a reasonable man could
have
entertained a reasonable suspicion that the Plaintiffs committed the
offence alleged. This debate was tied upon with the next
question: of
onus of proof.

The right
of every citizen to freedom of movement and liberty is fundamental.
An arrest by its nature and defamation constitutes
a serious
restriction and invasion on the individual's freedom of movement and
can also (as more often than not it does) affect
his dignity and
privacy. See Du Toit, De Jager, Paizes, Skeen and Van der Merwe
COMMENTARY ON CRIMINAL PROCEDURE ACT Chapter 5
- page 5 - General
note. The law permits the police to effect arrest if there are
factual circumstances on the basis of which they
objectively suspect
that certain offences have been committed. It is trite law that the
onus of proving the existence of such circumstance
rests squarely on
the person who alleges them. See UNION GOVERNMENT v BOLSTRIDGE 1929
AD 240 and TSOSE v MINISTER OF JUSTICE 1957(3)
SA 10 AD.

I
accepted that the arrest did not appear to be effected for the
purpose of bringing the Plaintiffs before the courts of law. This

statement that future questioning was intended on the following day
suggested that a further investigation was to be mounted. If
that was
not the purpose of arrest I would have to be informed of the other. I
bore in mind that it was repeated in argument that
there had been
suspicion that the strike was :

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"Continuing at the time the Plaintiffs were arrested, and in the
light of the fact that it was not clear whether the office
consisted
of a single act or a continuing one, it was difficult to ascertain
whether the act was complete."

More than
to confirm that the arrest could have been preventive or premature I
accepted again that the clear purpose of the arrest
appeared to be to
investigate the Plaintiff presence at the alleged place of the
offence. It was submitted in that regard that
the arrest was unlawful
and so was the detention. I was referred to WIESNER v MOLOMO 1983(l)
SA 151 and DUNGAN v MINISTER OF LAW
AND ORDER 1984(3) SA 460 at 465.

I
accepted that Major Mofolo could rely on hearsay evidence of a fellow
officer. But it had to be information that could itself
afford
reasonable ground for suspicion. It was a ruthless contention which
invited an inevitable conclusion that Major Mofolo did
not himself
have any suspicion that the Plaintiffs had committed the alleged
offence. What I found pertinently proved was that
he did not have any
reasonable suspicion.

This
Court agreed that it was good law that a police officer who suspects
that an offence has been committed, must take the trouble
to confirm
his suspicion or allow it to dissipate. A police officer who fails to
substantiate his suspicion when he has the opportunity
does not act
reasonably. If therefore follows that his suspicion will not be
reasonable. I was referred to S v PURCELL-GILPIN 197(3)
SA 5448 RAD
at 554C and S v MILLER 1974(2) SA 33 RAD at 75E.

It needed
to be repeated that a police officer must investigate before taking
away a citizen's liberty. It is after an investigation
that he may
form a reasonable

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suspicion.
It is for this reason that there can be no reasonable suspicion
unless there were known facts and those reasonably suspected
of
establishing a crime on the part of the arrested person. See MAY v
UNION GOVERNMENT 1954(3) SA 120 at 127F and R v NKALA &
ANO.
1962(1) SA 243(a). [This the Court had to be told or informed about.
This was not done.

The Court
inescapably concluded that, in view of the fact that the arrest was
unquestionably unlawful, there could be no doubt that
the detention
was just as unlawful. It was undisputed that the Plaintiffs were kept
in the cell for several hours and overnight.
Plaintiffs' Counsel
referred to this Court's decision of KHETHISA NTHAISANE v OFFICER
COMMANDING CID AND ANOTHER CRI/T/480/91 (unreported)
about the
unavoidability of the detention being unlawful where the related
arrest had been unlawful.

Damages
are a matter entirely within the discretion of a trial judge. The
discretion is to be exercised judicially taking into consideration

all relevant factors. I was persuaded that foreign awards are an
erratic guide for the reason that they are made within the mileau
of
the economies of those countries and vast range of precedent which
provides comparison and test in relevant only in those jurisdictions.

But it cannot be denied that they often illustrate factors that
should be taken into account in assessing those awards. I was also

persuaded on the other hand that if and when circumstances are
similar the awards tend to increase in some progression over a number

of years or on periodic basis. This could be having something to do
with inflation and the value of money. Counsel did not speak
of a
formula of any kind that had to be adopted. The most immediate
factors were therefore to be the personal circumstances of
the
Plaintiffs. They were respected businessmen in their communities and
law abiding citizens

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I was
asked that I should have regard to following in fixing an award and
arriving at a reasonable quantum: That firstly there was
in essence
no reason at all why the police arrested the Plaintiffs. I thought
this was most uncharitable. I would settle for that
there was no
reasonable suspicion for the arrest as lawyers understand it to mean.
Indeed suggestions were put such one to Second
Plaintiff by
Defendants in particular that the police had a suspicion that "you
might be involved in disruption of traffic."
That showed a kind
of uncertainty or imprecision in expression quite beyond what one
suspected were the circumstances. I took the
whole picture of the
police's attitude into account.

The
Plaintiffs were detained for several hours and overnight merely
because there was further questioning to be done and as it was
put to
the First Plaintiff in cross-examination: "there were many
people to be questioned.......".

Although
it was suggested to be the norm the Plaintiffs saw the treatment in
the cell as most wanting in the dignity and respect
while in police
custody because as it was put to the Second Plaintiff "once you
are detained you must forego some

of the
things like washing......". I took it that once ones liberty was
unfairly

restrained
what he goes through in custody cannot be excusable even though it
may be said to be the norm. It goes with the fact
that they were kept
in a small cell with very little or no ventilation. Plaintiffs said
they were kept with a bucket into which
they were to answer the call
of nature but they were provided with no toilet paper. This was
neither denied nor seriously challenged.

The
Plaintiffs took it to be humiliating and without dignity that they
were ordered to empty the buckets of night soil which was
full at the
time when there was most movement of people around the offices where
they were in full view. It was not answered.

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It was
submitted that when all of the above things were considered the sum
claimed was far reasonable and would meet the justice
of the case.
See MOSES v MINISTER OF LAW AND ORDER 1995(2) SA 518C.

I thought
the claim should succeed. I viewed the amounts claimed as a bit on
the inflated side in the circumstances of the length
of the
Plaintiffs incarceration.

I awarded
a sum of M7,500.00 (Seven Thousand and Five Hundred Maloti) to each
of the Plaintiffs and that the Defendant should pay
the costs of
suit.

T
Mpnapathi Judge

2nd
December, 1999

For the
Plaintiffs : Mr. Phafane

For the
Respondents : Mr. Putsoane