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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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Payment of an amount of M20,000.00 to each plaintiff for unlawful arrest and detention.
Interest at the rate of 18% per annum a tempore morae
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