THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) No. 9/2009
IN MASERU CIV/T/455/2006
the matter between:
OFFICER COMMANDING CORRECTIONAL
- MOKHOTLONG 1ST
Heard : 14
Delivered : 23
– Search of Prison Officer after report of loss of money by
fellow officer – search in terms of Prison Rules
private, in closed office, by other fellow officers – search
not unwarranted or actionable.
respondent is a Prison Officer in the employ of the Prisons Service
at Mokhotlong. At the conclusion of a trial in the
Mofolo J ordered the appellants (the respondent’s Officer
Commanding and the Attorney-General) jointly and severally
to pay him
M50,000.00 in damages by reason of his having been subjected to an
“unwarranted” body search. The appeal
is against the
finding of liability. A cross-appeal against the award was not
persisted in during argument before us. For convenience
refer to the parties as they were cited in the court below.
only witness in the case was the plaintiff but it appears to have
been agreed between the parties at the trial that the
written statements by the first defendant and Chief Officer Ramaili
(to whom, for convenience, I shall refer as
undisputed or indisputable evidence can shortly be summarised as
follows. Like the plaintiff and the first defendant, Ramaili
stationed at Mokhotlong prison. All three were on duty on the
morning of 23 December 2005. Ramaili had with him M1,200.00
brown official envelope. He intended to send the money to his
family. In the course of the morning he went to the toilet.
found that he could not sit comfortably with the bulky envelope in
his trousers so he took it out and placed it next to him.
vacated the toilet he forgot the money and left it behind.
Immediately after him the toilet was used by Prison Officer
then by the plaintiff and finally by Prison Officer Letsie.
much later Ramaili realized that he did not have his money with him.
He looked in the toilet but it was not there. He
made enquiries of
those who had followed him but no one seemed to know anything about
the money. He therefore reported the matter
to his superiors.
first defendant summoned all three officers who had followed Ramaili
and asked for their assistance in recovering the money.
When all of
them said they had not seen it, he required them to submit to a body
search and directed Ramaili to report the matter
to the police.
search in terms of the Prison Rules was conducted on each of the
three persons concerned in turn in a closed office at the
each search the only people present were the person searched and two
male Prison Officers assigned to conduct it.
The money was not
found. For the purposes of the search the plaintiff was required to
take off all his clothes.
24 December 2005 Ramaili reported to the first defendant that his
money had been found next to a door leading to the women’s
section of the prison. The first defendant then informed all
concerned that the money had been found.
to the evidence of the plaintiff, he said that when he was summoned
to the first defendant’s office he was told
that the money was
left in the toilet. He asked which toilet and the reply was the
women’s toilet. He said his response
was that he never used
the women’s toilet and he had seen no money in the men’s.
it came to the search, and before undressing, the officers conducting
it asked him whether he still refused to give up
the money. He said
he knew nothing about it. They then said that as he refused to take
out the money they had to search him.
At first he refused to be
searched but they said it was an order. Initially, his clothes were
searched while he still wore them,
then he had partially to undress
and finally he had to undress completely. Asked whether the officers
conducting the search searched
his naked body or searched his clothes
searched the clothes my lord and thereafter came to me. I was asked
to turn around and face the other direction, and thereafter
ordered to clothe.”
plaintiff went on to testify that he was a member of the local police
football team and that when he went to the ground
that evening his
teammates said they had heard about the missing money and heard that
he was a suspect. When he said he knew nothing
about the money they
asked whether it was true that he had been searched and ordered to
strip naked. When he confirmed that, they
laughed. This upset him.
It upset him more that they went on talking about it. Eventually, so
he said, it was the “talk
of the town”. As a result –
to paraphrase – he felt humiliated, injured in his dignity and
reputation and considered
that his chances of promotion had been
reaching the conclusion that the search was “unwarranted”
the trial judge said earlier in his judgment:-
am of the view there was very high evidence to impel the Officer
defendant to subject plaintiff to such a thorough search. And while
the search may have been justified, the complainant has informed
court ‘they were told money was found on female prison door.’”
meant, so the Judge went on, that the money was never in the men’s
toilet and the first defendant ought therefore to
subsequently to the plaintiff for a “wrongful search”,
which he had failed to do. In the circumstances
the plaintiff had
been “unnecessarily harassed”. In addition, reporting
the matter to the police indicated that the
first defendant had lost
faith in the plaintiff. The judge’s conclusion was:
am of the view much as the first defendant ... is entitled to search,
given circumstances of the plaintiff the search was unwarranted
placing the plaintiff in an invidious position and likely, amongst
other things, to prejudice his job opportunities.”
that basis he held that the plaintiff had proved his case.
to what “his case” was it should be mentioned that the
plaintiff’s declaration contained the following
in or around the 23rd
December 2005, the first defendant herein wrongfully, falsely
intentionally and maliciously accused the plaintiff herein of the
theft of a certain amount of money.
thereto, plaintiff was subjected to humiliating, embarrassing and
mentally debilitating treatment by fellow prison
warders acting on
the instructions of the first defendant herein who was acting within
the scope and during the course of this
employment with the second
defendant as such.
the time, the first defendant made the accusation aforesaid, first
defendant knew quite well that the same was false and only
with the sole aim of injuring the plaintiff in his fair name and/or
trial judge made no findings in regard to the allegations in
paragraphs 5 and 7 and they are not in issue in the appeal.
plaintiff’s case therefore solely concerned the search.
31 of the Prisons Proclamation 30 of 1957 empowers the making of
rules for the management of prisons. Such rules were
G. N. 27 of 1957. Among them is the following:-
Every officer shall submit to being searched in the prison, if
called upon by the officer in charge or the gaoler.”
is not necessary to come to a definitive, all-embracing, conclusion
as to when it would be proper for a search under that
rule to be
ordered. It would clearly be proper to order a search if there were
reasonable cause in the circumstances. It is not
to be inferred that
a Prisons Service employee would abandon a large sum of money. A
ready inference to be drawn was that the
money had been stolen. An
equally ready inference was that one of the people who used the
toilet after Ramaili might have seen
the envelope, seen its contents
and kept it. The sooner those three were interviewed and their
involvement confirmed or ruled
out, the sooner other lines of
investigation could be followed up. In my view, therefore, there was
reasonable cause for the search.
for the respondent sought to argue that rule 153 had to be read
together with rule 151. It provides:-
No officer shall, without the authority of the director, carry out
any pecuniary or business transaction with, or on behalf
officer shall, without authority:-
in or carry out, or attempt to bring in or carry out, any article
whatsoever, to or for a prisoner; or
allow to be brought in or carried out, any article whatsoever, to or
for prisoner; or
any article whatsoever in any place with intent that it shall come
into the possession of a prisoner.”
argument was that a search was only proper if it was for a purpose
connected with the prohibitions in rule 151. I disagree.
the rules suggests that limitation. A search of an officer could be
aimed at determining if the officer concerned
was in possession, for
example, of a prisoner’s missing property, a fellow officer’s
missing property or any illicit
substance or article. The reason
could have to do with maintaining law and order or maintaining
discipline within the prison.
The possibilities are many. The first
defendant’s decision to order a search as and when he did
cannot be faulted.
next enquiry is whether the search was conducted in a manner that was
humiliating or in any other respect injurious to
his dignity or
reputation. It is instructive to note that rule 11 provides in
regard to the searching of prisoners that:-
No prisoner shall be stripped and searched in the sight of another
Only officers of the same sex as the prisoner shall search such
reasonable requirements were equivalently applied in the instant
case. There is no probable evidence which in my view shows
manner of the search was, in the context of an investigation in terms
of prison rules, humiliating or in any other respect
dignity or reputation.
for the report to the police, there is no evidence that the
plaintiff’s name was mentioned to the police as a possible
there is the judge’s reference to the search as unlawful
because the money could never have been in the men’s
This reasoning is wrong and illogical. There is no ground for
thinking that Ramaili did not use the men’s toilet
or that he
did not leave the money there. (How it got to where it was found –
next to a door leading to the women’s
cells – the record
does not reveal and in the event it does not matter.) It is also
simply improbable, as the plaintiff
alleged, that he was told that
the money had been left in the women’s toilet.
my view the search was not proved to have been actionable in any
respect and the claim ought to have failed.
is ordered as follows:
appeal is allowed with costs.
order of the High Court is set aside and substituted for it is the
claim is dismissed with costs.”
of the Court of Appeal
for the Appellants: Mr. L. V. Letsie
for the Respondents: Mr. K. J. Metsing
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