IN THE HIGH COURT OF LESOTHO
In the Application of :
STEPHEN LEFU SELLO Applicant
COMMISSIONER OF POLICE 1st Respondent
SOLICITOR-GENERAL 2nd Respondent
Delivered by the Hon. Judge Mr. Justice M.P. Mofokeng on the 22nd day of February, 1980.
on the 30th day of January, 1980, an urgent application, in the form of a petition was placed before me by the Registrar. The said application was made by one Stephen Lefu Sello on behalf of one Khabang Martha Sello who was and probably still is, detained by the police. The prayer was in the following terms:-
1. Order the Respondents herein to procude the
body of Khabang Martha Sello before this Honourable Court on a date to be determined by it and there and then to show cause, If any, why:
(a) the said Khabang Martha Sello shall not
be released from police custody forthwith;
(b) The First Respondent and all officers
subordinate to him shall not be interdicted
from assaulting the said Khabang Martha
Sello, interrogating her illegally or
from debilitating, exhausting or imparing her mental or physical health while she is in their custody.
(c) The First Respondent and all officers subor
dinate to him shall not be interdicted from
interrogating the said Khabang Martha Sello
while she is in hospital or removing her from
the Government hospital at Quthing, in the
event that she is still there, save on the
return date of this Petition and for the sole
purpose of complying with prayer (a) above.
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(d) The Respondents shall not be ordered to pay the costs of this Application jointly and severally.
2. Direct the magistrate for the Subordinate Court at Quthing forthwith to interview the said Khabang Martha Sello in private, to put to her the allegations made in these papers, to record her answers and to submit such record to this Honourable Court before the return date of this Petition.
3. Direct the medical officer in charge of Quthing Government hospital to submit to this Honourable Court before the return date of this Petition a full and written report of whatever medical examination he may have conducted on her indicating the nature and Cause of whatever injuries he may have found on her, her present physical state, what medical treatment, if any, she is receiving or has received, and whether she is still in his hospital.
4. Direct that prayer l(b) and (c) operate as an
interim Interdict restraining the First Respondent and his officers as prayed with immediate effect."
The following interim order was granted by the Court:
"IT IS ORDERED:
1. That the Commissioner of Police and the Solicitor-General, the Respondents herein produce KHABANG MARTHA SELLO on the 5th day of February, 1980 and there and then to show cause, if any, why:
be released from police custody forthwith:
(b) The Commissioner of Police, First Respondent
and all officers subordinate to him shall
not be interdicted from assaulting the said
Khabang Martha Sello, interrogating her
illegally or from debilitating, exhausting
or impairing her mental or physical health
while she is in their custody.
(c) The Commissioner of Police and all officers
subordinate to him shall not be interdicted
from interrogating the said Khabang Martha
Sello while she is in hospital or removing
her from the Government hospital at Quthing,
in the event that she is still there, save
on the return date of the aforesaid Petition
and for the sole purpose of complying with
prayer l(a) above.
(d) The Respondents shall not be ordered to pay
the costs of the Application jointly and
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2. The magistrate of the Subordinate Court for the
district of Quthing be and is hereby directed
forthwith to interview the said Khabang Martha
Sello in private, to put to her the allegations
made in the Petition, to record her answers and
to submit such record to this Court on or before
the 5th day of February, 1980.
3. The medical officer in charge of Quthing Govern
ment hospital be and is hereby directed to
submit to this Court on or before the 5th day
of February, 1980 a full and written report of whatever medical examination he may have conducted on the said Khabang Martha Sello.
4. Orders l(b) and (c) above operate as an interim
Interdict restraining the First Respondent and
his officers as ordered with immediate effect."
Mr Stephen Lefu Sello (hereinafter referred to as Mr. Sello)in the petition states, probably to indicate his interest in the matter and hence his locus standi, that Khabang Martha Sello (hereinafter referred to as the detainee) is her daughter-in-law. His son (the husband, of the said detainee) is away in the Republic of South Africa where he is working. On one occasion his son had returned from the said place of work for the purpose of renewing his passport and on arrival home he had been arrested and assaulted by the police. When he was subsequently released, he openly said that the actions of the police would make it increasingly difficult for him to return to this Kingdom. Mr. Sello was further informed by his wife, 'Matseliso 'Mautloang, that the said detainee had been taken into custody by the police and had been admitted to Quthing hospital under police custody having sustained certain injuries. He then submits that
"the arrest and detention of the said Khabang is wrongful and unlawful as is the treatment being meted out to her"
Mrs 'Matseliso 'Mautloang Sello states (in her affidavit which forms an annexure to the petition) that she is the mother-in-law of the detainee: that her son, the husband of the detainee, left this Kingdom about 1974 to work in the Republic of South Africa "where he had always been employed."; that on or about the 8th January, l980, the detainee was taken from her place of employment, by
/the police ..
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the police and she was informed and verily believed, that the police wished to know from the said detainee her husband's whereabouts; that on the 21st January,, 1980 and as a result of certain information, she proceeded to Quthing hospital where she ascertained that the said detainee had been admitted, at the said hospital and was under the custody of the police. The said detainee had been at the said hospital since about the 10th January, 1980. The said detainee was not allowed any visitors.
The Respondents (to be precise only the first) oppose the said order.
Mr. Reitholetse Shadrack Matela (hereinafter referred to as the Commissioner) states in his affidavit that, in his capacity as the Commissioner of the Lesotho Mounted Police, he ordered the detention of the said detainee for the
"purpose of interrogation under section 12 of the Internal Security (General) (Amendment) Act 1974." (Hereinafter referred to as the Act).
He annexes the said detention order which reads:
"In accordance with section 12(3) of the Internal Security (General) (Amendment) Act, No.1 of 1974.
I hereby order the detention of Khabang
Martha Sello QUTHING CHARGE
Date Stamp. illegible
COMMISSIONER OF POLICE
07-01-1980 Major-General R.S. Matela
Commissioner of police.
Immediately below this appears a release order, in blank but already signed, apparently by the said Commissioner. All that is required to be done here (as in the detention order form) is merely to fill in the name of the detainee to be so released. The Commissioner further states that on the 1st February 1980 he signed a
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"further order for the detention of KHABANG MARTHA SELLO at MOHALE's HOEK Charge office."
He annexes a copy of the said detention order, (which again is accompanied by a pre-signed release form as already described above). He explains the continued detention of the said detainee as being that
"in my opinion she has not replied satis-factorily to all the questions at the said interrogation."
He finally asserts:
I have not nor has the Minister to
my knowledge consented, in terms of section
12(b) of the said Act to any person to have access to the said KHABANG MARTHA SELLO during her detention."
This method of having cyclostyled detention forms already signed by the Commissioner can lend itself to a terrible abuse. This form only leaves a space where the rune of a detainee has to be filled in. A person can therefore, find himself in detention without the knowledge of the Commissioner, who legally speaking will have authorised that person's detention and such a person may similarly be released from such detention without the knowledge of the Commissioner because the form is again presigned by him. This abuse of power cannot, in the circumstances, be ruled out and this is what an ordinary Mosotho citizen fears, namely that he can vanish from the face of the earth at the whim of some petty police officer for reasons other than those stated in the Act. This again can easily happen when one remembers how many of these detainees are ever heard of in these Courts. Very very few indeed. I can only hope therefore that these presigned forms are not available at every charge office in this Kingdom, and are not being used in connection with detaining persons for purposes other than these actually specified in the Act for that would clearly be illegal. I shall come back to the affidavit of the Commissioner in due course.
The main opposition affidavit is by one
Simon Mohau Thaha (hereinafter referred to simply as the
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said Thaha) who describes himself as a lieutenant in the Lesotho Mounted Police stationed at Quthing. He says he is a Senior officer as
"defined in the Police Order 1971."
on the 7th January 1980 he arrested the said detainee under section 12 of the Act and detained her because
"I was and am of the opinion that she is in possession of information relating to the commission of offences contrary to section 13 of the Internal Security (General) Act No. 37 of 1967 as amended." (My underlining)
He says that he informed the said detainee that he was
"arresting and detaining her for interrogation in terms of the said Internal Security and that I would continue to detain her until she had, in the opinion of the Commissioner, replied satisfactorily to all questions at the said interrogation." (My underlining)
He then detained her at Quthing Charge Office being a place "designated by the Commissioner" in terms of the Act. He says that he and other security officers began to interrogate her periodically from the 8th January, 1980. He denies that the said detainee was ever assaulted
"by the police or anyone else." (by underlining)
However, on the 10th January 1980 while she was undergoing interrogation she
"collapsed and fainted"
and was then removed to the Quthing hospital. He says that while she was at the said hospital she
"continued to be in police custody" (My underline)
and upon her recovery (he really means upon her discharge from the said hospital) she was removed and detained at Mohale's Hoek being a place again designated by the said Commissioner. He then argues that
/"in terms ......
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"In terms of section 12 of the Internal Security (General) (Amendment) Act 1974, (a) no person has the right of access to the said KHABANG MARTHA SELLO, during her detention, without the prior concent of the Minister or the Commissioner and that the Court has no jurisdiction to order the magistrate to visit her, put to her the allegations made in the Petition, record her answers and to submit such record to the Court. I respectfully submit that any evidence obtained in contravention of the recruitments of the Act is inadmi-ssible,
(b) The Court has no jurisdiction to order the release from custody of the said KHABANG MARTHA SELLO and has therefore no jurisdiction to receive any evidence in support of an application for her release." (My underlining)
Pursuant to the interim order granted on the 30th January, 1980, the Court is now in possession of two Documents viz, a medical certificate concerning the medical examination and findings on the said detainee while at Quthing hospital and a statement obtained by a magistrate from the detainee in answer to the allega-tions made in the petition before Court. Copies of both documents have been made available to both parties in order for then to acquaint themselves as to the nature of the information the Court has before it and to allow them an opportunity to study it and prepare their case accordingly. The first respondent has submitted that such documents are "inadmissible" as they were "obtained in contravention of the requirements of the Act."
It is now necessary to set out the relevant section under review. It states:
(3) (a) Notwithstanding anything to the
contrary in any law contained, any Senior officer as defined in the Police Order 1971, may from time to time without warrant arrest or cause to be arrested any person whom he suspects upon reasonable grounds of having committed or intending or having intended to commit any offence under this Act, or any offence involving
/damage to .......
— 8 —
damage to property of the State or any person, or who in his opinion is in possession of any information relating to the commission of any offence or the intention to commit any such offence and detain such person or cause him to be detained in custody for interrogation in connection with the commission of or intention to commit such offence at any place designated by the Commissioner, until such person has in the opinion of the Commissioner replied satisfactorily to all questions at the said interrogation but no such person shall be so detained for more than 60 days, unless rearrested on any of the grounds in this section contained.
(b) No person shall, except with the consent of the Minister or the Commissioner have access to any person detained under this subsection:
Provided that not less than once during each week such person shall be visited in private by a magistrate of the First Class.
(4) No Court shall have jurisdiction to order the release from custody of any person so detained, but the Minister may at any time direct that any such person be released from custody."
Doth documents were not obtained contrary to the section. In law, that is pursuant to the priviso of sub-section 3(b), a magistrate of first class is entitled to visit a detainee. The section is silent as to what the magistrate should do after such a visit. It will be fair to assume therefore, that he, among other things, has to listen to the complaints, if any, from the detainee. Obviously, one would imagine, these would be noted down. In any event, this information was not obtained by a trick. Similarly, the information concerning the medical examination of the detainee has not been obtained by contravention of sub-section 3(b). Indeed, the Commissioner had, by sending the detainee to the hospital for treatment, consented that the doctors, and the hospital staff at least, should have access to the detainee if, of course, at that relevant time she was a detainee. When the doctor obtained the information before me, the detainee was not a detainee within the meaning of the Act. At that relevant period the detainee was entitled to receive
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any person who wished to visit her and the police had no right to refuse her to receive such visitors. In any event, it does not now matter how these statements came to be before the Courts. In the matter of Karuna v. The Queen (1955 A.C. 107) the Privy Council held that the test to be applied both in Civil and Criminal cases in considering whether evidence of this nature is admissible is whether it is relevant to the matters in issue. If it is so relevant then the Court is not concerned with how it was obtained. However, the Court has a discretion to disallow the evidence if the strict rules of admissibility would operate unfairly against an accused person. Lord Goddard put it thus at page 204:
"In their Lordship's opinion, when it is a question of the admission of the evidence strictly it is not whether the method by which it was obtained is tortious but excusable but whether what has been obtained is relevant to the issue being tried. Their Lordships are not now concerned with whether an action for assault would lie against the police officers and express no opinion on that point." (My underlining)
(See also State v. Zindaba and others, B.L.R. 1976 p.49: S. v. Mushinga en Andere, 1977(2) S.A. 829 at 870 D-E).
This authority is binding on this Court. (See Forrester v. L.E.C. judgment dated 7/4/78). Were is a detainee who has no access to ner legal advisors, who is deprived of her liberty to communicate with anybody, who finds herself in a hospital and is helpless and cannot bring an action against the authority detaining her but is desirous of doing so and a statement is available from her, this Court, as it has done in this instant case, will admit such a statement so as to inform itself of the true state of affairs. In the words of Mapetla, C.J, in Rex v. Tlali & others, CRI/T/27/74 (unreported) at page 17
"As I stated, the Crown were unable to call the doctor who did the post-mortem examination because he had left the country. He did not give evidence at the preliminary enquiry either. I have, however, called for his report and it was
/made available .....
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made available to me. No reliance could be placed on anything in it which would strengthen the Crown's case, but it is an entirely different matter if there is anything favourable to the accused. It is not evidence, but ignoring it altogether would mean that the Court, whose function it is to sit in judgement upon the liberty, of men, should enlarge its conscience
" (My underlining)
That was said in a criminal trial and, in my view, it is quite relevant in the civil action before me. As Didcott, J, put it in Nxisana v. Minister of Justice & Another, 1976(3) S.A. 745 at 758L (D):
"In a case of this type (similar to the
present) hearsay evidence is often all
that is available to a litigant, and it
is not necessarily inadmissible on that
count. (See Scheinbrucker v. Klindt, N.O.
1965(4) S.A. 606 at C27F; Gosschalk v.
Rossouw, 1966(2) S.A. 476(C) At 467F.
The weight to be attached to it is however
another matter. Its value is damaged
by a lack of particularity "
and at page 75AG
"But that does not warrant the assumption
that the Legislature meant to go the the
extreme lengths of silencing him (detainee)
and denying the Court information which it
required from him on on order to administer
In this case before me there is certainly no lack of particularity in those two statements. For the above reasons I hold that both statements are admissible.
The First Respondent also argues that the petitioner has no locus standi to make the application. Now the very nature of the provisions of the Act denies the detainee from personally making such an applications and it would be naive to imagine that the Commissioner or the Minister responsible would allow her such kind of access. The detainee either has to give a power of attorney (in advance) to his legal advisor to launch such an action
on his behalf or that a person with substantial interest, such as a father or a guardian should do so on her behalf.
It would be closing one's eyes to reality to expect every Mosotho man to have a legal advisor with a general power
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of attorney in advance for no one ever knows when such a misfortune would befall him. In any event, there are too few legal practitioners in this Kingdom and the few that are available, are mainly in Maseru and are virtually non-existent in Quthing. Even if one were to be available, he would have no access to her. The only, and the best alternative, in my view, in the circumstances, is for the head of the family or guardian to launch the application on behalf of the detainee. In the nature of things, obviously the facts would be meagre. In this particular case the obvious person to have launched the application would have been the detainee's husband. However, he was out of the country and was unlikely to come in view of the alleged treatment meted out to him by the police in 1974. In any event, in his absence from home his father assumes the authority and responsibility as the head of his son's family. This is in accordance with Sesotho law and Custom of which this Court takes judicial notice. I am therefore satisfied that the petitioner has locus standi in this matter. (See also Ganyile v. Minister of Justice and others, 1062(1) S.A. 647 at 648 E-G).
It is argued, on behalf of the first repondent, that there is no evidence in the petition to support the allegation that the arrest and detention of the detainee is wrongful and unlawful. The contents of paragraph 5 of the said Sello's affidavit taken in conjuction with paragraph 4 of 'Matseliso 'Mauhloang Sello's affidavit, in my view, have establisbed a prima facie case against the first respondent. In any event, there is never any presumption that the arrest and detention of an individual is lawful until the contrary is shown. The Act in question does not purport to establish anything of the sort. In my view, the onus is on the first respondent to show, on a balance of probabilities, that
his arrest and the detention of the detainee is lawful,
that is: that it is strictly in accordance with the provisions of the Act. Or as Bankes, L.J. said in Rex v. The Secretary of State for Home Affairs Experte O'Brien, 1923(2) KB 361 at 375:
"The duty of the Court as clear. The
liberty of a subject is in question. The Court must enquire closely, into
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the question whether the order of internment complained of was or was not lawfully made."
The Act is a very drastic one indeed on an individual. Parliament has seen fit to curtail the liberty of an individual in order to protect that of the State. Parliament has seen fit to give to an individual the authority to terminate another individual's liberty if the former individual is of a certain opinion. The detained person is at the mercy of that individual as to when he will be allowed to regain his liberty; to be precise and in words of the said Thaha
" I would continue to detain
her until she had, in the opinion of the Commissioner, replied satisfactorily to all questions at the interrogation."
When a person is apprehended in a criminal case he is informed of the nature of the offence he is
suspected to have committed so that he should know why his liberty is being curtailed. He is to know so that he can prepare for his pending trial. It is no use informing a detainee, who has committed no crime, that he is being detained because a prescribed officer believes on reasonable grounds that the detainee has committed or intends to commit any offence under the Act (without naming such offence(s) or fully informing him of the circumstances). To an ordinary citizen that does not mean anything, and this is particularly serious because this detained ordinary citizen has to answer questions to the satisfaction of the Commissioner. The affidavit of the said Thaha is not helpful either in this particular aspect. That is why it is so important that the activities of the police in this respect should be reviewed by an independent authority so as to check and see if their actions are in accordance with the law. They should not think that they are above the law or a law unto themselves. This is what an ordinary citizen fears most. The citizen must never feel that he is being intimidated by the use of this law. It is the main function of the Courts in our Kingdom to protect the rights of an individual. It is equally the function of parliament. If those rights are infringed or curtailed, however slightly, and the situation is brought to the notice of the Courts, our Courts will jealously guard against such an erosion of the individual's
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rights. Any person who infringes or takes away the rights of an individual must show a legal right to do so. The rights of an individual being infringed or taken away, even if a legal right is shown, the Courts will scrutinise such legal right very closely indeed. If it is an Act of parliament, the Courts will give it the usual strict interpretation in order to see whether the provisions of the said Act have been strictly observed. If the Courts come to the conclusion that the provisions of such an Act are not being strictly observed then the detention of the detainee would be illegal and the Courts will not hesitate to say so. The case of Mamanehello Seshophe v. The Commissioner of Police and Another, CIV/APN/175/79 (unreported) is very informative. The applicant had asked the Court to release her son from police custody. He had been purportedly detained prusuant to the provisions of section 12 of the Internal Security (General) (Amendment) Act 1 of 1974. She alleged that he had not been visited by a magistrate "for months" and that he had been detained for more than the required period viz. 60 days. These acts were clearly contrary to the provisions of the said section; and were therefore illegal. The Commissioner did not oppose the granting of the order sought and in fact consented to the granting of the said order. He therefore admitted that he had acted illegally and the Court could in those circumstances order the release of the detainee since be had acted illegally. If then the Courts say that the detention of a detainee is illegal, it is in effect ordering the release of such a detainee and his continued detention thereafter, if not in accordance with the Act, would be illegal and could lead to serious consequences. It is true that the interest of the State should also receive equal importance but all that I am saying is that an individual has the right to determine whether his rights have been legally interfered with and once the Courts are satisfied that that is so, that is the end of the matter. Only in such a case can the Courts not interfere. Only then will the Courts have no jurisdiction in the matter. In this sense the first respondent is correct but if the contention is that the Courts have no jurisdiction in the matter at all once
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the detainee is arrested and detained then that contention cannot be correct. He has every right to challenge the detaining authority as to its right to do so under a purported Act. The Legislature has not taken away the detainee's right to challenge whether his detention is in actual fact in accordance with the provisions of the Act. The fact is, the Legislature has not purported to take away or exclude the Courts' right to investigate the legality and the application of the provisions of the said Act, for an example if he can show that somebody other than the prescribed officer arrested him or that the prescribed officer did not have reasonable grounds to bring the detainee within certain contemplated crimes mentioned in the Act. (See Schermbrucker v. Klindt, N.O. 1965(4) S.A. 606 at 613 A-E).
Our present Act is taken a almost word for word from a most draconian piece of legislation which the Republic had ever experienced before then. This is the notorious section 17 of Act 37 of 1963 (commonly referred to in that country as the "90 day detention Clause", for it provided that a detainee could not be detained for more than 90 days on any particular occasion). The interpretation of this dreaded law has been given in various pronoucements of various Courts in that country which clearly demonstrate the terrible inroad it has made on the rights of an individual. (See Rossouw v. Sachs, 1964(2) S.A. 551; Schermbrucker v. Klindt, N.O. (supra); Nxasana v. Minister of Justice (supra). However, it must be borne in mind that the circumstances, in the Republic of South Africa, arc quite different from those that obtain in this Kingdom. In their case the measure was a temporary one and its continuance was solely in the hands of the State President. In our case the measure is permanent and can only be revoked by an Act of parliament. This difference is of a fundamental importance. The interpretation of an Act which is temporary will necessarily pot be the same as that of an Act which is permanent. I must here qualify my earlier remarks about the strict interpretation given an Act of parliament which infringes the rights of an individual. The Act under review is not an ordinary Act of parliament. It is
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meant to protect the safety of the Stats. In construing a regulation made under Emergency Powers (Defence) Act, 1939 a strict interpretation against the Crowm in favour of the liberty failed to obtain the general approval of the House of Lords. The case is Livesidge v. Anderson and Another, (1941) 3 ALL E.R. 338 (H.L.) (See also Rossouw v. Sachs (supra) pp 562-3). But here lies the difference: when that decision was made, England was in a state of war whereas this Kingdom is not at war. When the act under review was enacted there were acts of High Treason and Sabotage being committed within this Kingdom. Certain individuals were brought to trial and some of them were convicted for having committed such offences. It is almost six years since the present act was enacted and this Court is not aware of any pending trials before it or other courts where such acts are alleged to have been committed (See Rossouw v. Sachs, (supra) p. 563). As far as this Court is concerned there is therefore no need to adopt the interpretation in Livesidge's case. I may just add that the Court was in that case sharply divided just as in the Schermbrucker' case. However, the legal position is summarised by Lord Atkin in his disseating judgment in Livesidge's case at p. 361
"All the Courts to-day, and not least this House, are as jealous as they have been in upholding the liberty of the subject. That liberty, however, is a liberty confined and controlled by law, whether common law or statute ..... If an Act of Parliament
is alleged to limit or curtail the
liberty of the subject or vest in the executive extraordinary powers of detaining a subject, the only question is as to the precise extent of the powers given. The answer to that question is only to be found by scruti-nising surrounding circumstances and the general policy and object of the measure."
and Cur lewis, J, in R. v.Quinting, 1916 T.P.D. 578 at 589:
"The Court, though ever anxious to maintain
the liberty of the subject..........
can do so only to the extent and limit placed thereon by the Legislature."
Unless, therefore, parliament says so in clear and explicit language, there is never a presumption in favour of invading the individual's rights. (See also Casserley v. Stubbs,
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1916 T.P.D. 310 at 312; Dhanabakium v. Subramanian & Another, 1943 A.D. 160 at 167).
It is the essence of this Act that the detainee shall be prevented from having access with the outside world during his interrogation (except in one instance as will presently be seen) but a detainee shall certainly not be assaulted or have Ms health or resistance unpaired by inadequate food or living conditions or being interrogated by the use of any third degree methods. (See Schermbrucker v. Klindt, N.O. (supra) at 612 F-G, Rossouw v. Sachs (supra) 561 D to F). It was not the intention of parliament that these things should be done for, if it wore, it would have clearly and explicitly said so. There is abundance of evidence in this instant case that some of these dreadful things were done to the detainee. The doctors' report supports the evidence of assaults, in various forms. Two weeks after admission to the hospital the detainee
was still limping. The detainee's most elementary human rights were (unfortunately) callously disregarded. I associate myself fully with the remarks of Williamson, J.A. in Schermbrucker's case (at p. 621 G) where he says:
" I think, respectfully, manifestly
wrong in modern times to impute the extraordinary and unprecedented intention to Parliament of legalising a system of compelling persons to speak."
May it also be remembered that this Kingdom is signatory to the Declaration of Human Rights Charter. However that may be since we have such a legislation as described by Williamson, J.A. the Courts will interpret it very strictly indeed.
It is further argued on behalf of the first respondent that no Court can authorise the doing of any act which may result in the interference of the detainee's detention. The Court in the issuance of its interim order has not encouraged any interference with detainee's detention. If the Court orders the production of a detainee in Court it does so firstly to observe for itself that in fact such a person is in the hands of those who arc alleged to hold him, to observe the general physical condition and generally to satisfy itself that all is well; finally perhaps, if so requested, to throw some light on the issues before Court. Williamson, J.A.
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in Schermbrucker's case at 622 xx it thus, and I entirely agree:
"If a Court considered it absolutely necessary in the interests of the administration of justice as soon as possible to hear the detainee in evidence and that to that end he should be produced to the Court, the Court would not be having access to the detainee in the sense in which that word is used in the section. Nor would any person leading evidence or cross-examining him have access to xxxxx the sense of breaching that isolation sought to be effected by the section."
Or as Wigmore on Evidence, 3rd Ec. Vol. 8 pp. 66-7, para. 2192 clearly puts it :
"From the point of view of society's right to our testimony, it is to be remembered that the demand comes, not from any one person or set of persons, but from the community as a whole, from justice as an institution, and from law and order as indispensible elements of civilised life... ...... The whole life of the comminity, the regularity and continuity of its relations, depend upon the coming of the witness.
Whether the achievements of the past shall be preserved, the energy of the present kept alive, and the ambitions of the future be realised, depende upon whether the daily business of regulating rights and redressing wrongs shall continue without a moment's xxxxxx or shall suffer a fatal cessation. The business of the particular cause is petty and personal, but the results that hang upon it are universal. All society, potentially, is involved in each individaal case; because the process itself is one of vitality. Each verdict upon each cause, and each witness to that verdict, is a pulse of air in the wreathing organs of the community. The vital process of justice must continue inceasingly, a single cessation typifies the prostration of society; a series would involve its dissolution. The pettiness and personality of the individual trial disappear when we reflect that our duty to bear testimony runs, not to the parties in that present cause, but to the community at large and forever."
The same passage was quoted with approval in both Schermbru-
cker and Nxasana's cases. The same passage is again quoted in this judgment is being applicable to our circumstances
in this Kingdom and applied particularly to the topic of
/ the evidence .....
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the evidence by a detainee.
In the instant case there is no necessity for the presence of the detainee. It is not in dispute that the detainee is in the custody of the Commissioner and presently held at Mohela's Hoek Charge Office. There is information regarding her side of the story and also concerning her state of health. I shall naturally closely scrutinise her statement because she is necessarily an interested party. I must, however, emphasise that,legally speaking, the Court has inherent right to order any person within its jurisdiction to appear before it. The mere fact that there may be difficulties in the execution of such an order does not per se deprive the Court of that right. If the execution of that right is frustrated, the Court ought to know what action to take or alternatively, in the words of Botha, J.A. in Schermbrucker's case (supra) at page 618H:
"..... it may be necessary for the Court to employ other and less satisfactory methods to obtain the evidence of such
It is significant that the detainee spent only two days being interrogated at Quthing Charge office. The rest of her initial detention was spent at the Quthing hospital (which was not a place designated by the Commissioner for her detention). She was arrested on the 7th January, 1980 and the interrogation began, according to Thaba, on the 8th January 1980 and on the 10th January, 1980 while being interrogated by Thaba and his associates, she just collapsed and fainted. According to Thaba
"at no time during the said interrogation was the said KHABANG MARTHA SELLO assaulted by the police or anyone else," (My underlining).
How then did she come to have "an extensive laxxxxx of the left upper arm? How did she come to have "frontal lose syndrome, due to traumatic cerebral damage"? Why was she "even two weeks after admission still limping"? The answers are obvious. She had been subjected to severe physical assaults. Beside these obvious assaults,
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Thaba actually admitted to the doctors that blankets were need to cover the detainee during interrogation. The junior police officers (presumably Thaba's associated) admitted to the doctors that they were under the impression that the detainee and died (when she collapsed) or that she had sustained serious damage during interrogation; and yet they had stated, on the detainee's admission at the hospital that she had just collapsed without any obvious reason. One wonders why
they thought that she had died. The doctors could not have made up these allegations against Thaba and his associates. The doctors merely wanted to find out precisely what had happened to the detainee because they wished to narrow down their investigations of detainee's health. I am satisfied that the detainee was subjected to a most severe cruelty. The first respondent puts it this way (in his argument before me), rather surprisingly, in my view, after denying that the detainee was ever assaulted
"without admitting the correctness of the allegations contained in l(x) entirely without prejudice and in order to shorten the proceedings the Respondents are prepared to submit to the order sought under prayer 1(b)." And that reads :
(XX) The Commissioner of Police, First
Respondent and all officers subordinate to him shall not be interdicted from assaulting the said Khabang Martha Sello, interrogating her illegally or from debilitating, exhausting or impairing her mental or physical health while she is in their custody." (My underlining)
This concession,in my view, had to be made once the doctors' report was available and was not favourable to the respondent. It is not made as a result of the factors mentioned in the concession. It is patently obvious why it was made. The respondent has, in fact conceded, that that prayer be made absolute i.e. be confirmed.
This would dispose of the matter for on the first respondent's admission prayer l(b) should be made absolute. Prayer 1(c) is no longer applicable and counsel for the applicant did not concern himself with it in his
argument before this Court. I have already said that the
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Legislature has not purported to take away or exclude the Court's right to investigate the legality of detainee's detention. Is the detention of the detainee legal in this case? Before answering that question it will be useful to look closer, at the section with which we are concerned. The section permits detention without a warrant only in certain circumstances: and the purpose of such detention is interrogation. The termination
of detention depends upon (a) satisfactoin (in the discretion of the Commisioner) answering of questions by the detainee or (b) expiry of 60 days. While in detention no person is allowed access to the detainee unless with the express consent of either the Minister or the Commissioner. However, a magistrate shall visit the detainee, in private, at least once a week. Nothing precludes more visits by the said magistrate. The Court shall not have jurisdiction to order the release from custody of a person so detained. Finally the detainee shall be kept at a place designated by the Commissioner. It is quite clear, therefore, that the detention is for the purpose of interrogation and if that purpose falls away (and it can be so slow) then the police can no longer continue to detain.
In the present case the Court has the statement of the detainee which has been heard by the magistrate and he has reported to the Court as ordered by it. She says that she was interrogated and she answered questions. She has furnished to the magistrate details of the questions and answers. This statement to the magistrate, therefore, constitutes her evidence to the Court without her interrogation. Her evidence,in the circumstances could not be obtained in any other manner since she is otherwise cado. The respondent does not attempt to deal with these statements, ordered by the Court to be obtained. The respondents do not deny her assertion that she has answered questions put to her. The respondent adopt the strange attitude namely that the Court is not entitles to hear her or the magistrate or the doctors. Thaba does not deal with her allegations at all. The Commissioner mererly makes a general and non-specific assertions (see paragraph 4 of his affidavit) viz. that in his opinion she has not replied satisfactorily
/to all .....
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to all the questions at the said interrogation. In Nxasana's case (supra) the respondents answered the applicant's case with "of affidavits" by police officers, mortuary officer, magistrates who had visited the detainee and the Chief District Surgeon who had previously examine the detainee. However, the information applicant placed before that Court was not only of a hearsay nature but the sources of such information were unidentified. The sources of informa-tion in the present case are known and therefore identifiable. In my view, therefore, the Court is entitled, and indeed has a duty, once it has before it evidence regarding the interrogation and illtreatment accompanying it, to enquire into and test the position to establish whether the terms of the Act are being complied with and detention is in terms of the Act. The respondent has chosen not to reply at all to the allegations made by the detainee. The respondent says the evidence is not admissible because it is hearsay. The respondent in answer, if that is an answer, to the detainee's allegations,is simply to throw the wording of the section back to the applicant for anything they chose to do vis-a-vis a detainee and then draw - veil over it and say that the Court is not entitled to inquire into it or order a detainee's release xxxxx that some irregularity or illegality is being committed. These illegalities may take various forms e.g.
(i) if a person his been detained but never
(ii) if a person has been detained for interrogation
concerning an offence which does not fall
within the Internel Security Act or is not
contemplated by the section,
(iii) if the police continue to detain a person
after the interrogation has been completed,
(iv) if a police officer's motive in detaining a person is to give effect to personal malice or spite and not a reasonable suspicion as is required by the section.
The list is not exhaustive. In the normal course of events the Court may never know or be in a position to know what is happening to a detainee. However, if it should come to a Court's notice either on a report from a magistarte who
/has visited ......
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has visited the detainee or in some other way, as in the present case, than it is entitled and, indeed obliged, to inquire into the circumstances of the detention and il it finds, or inquiry, that a detection does not fall squarely within the setion, to order the release of the detanee.
Now ex facie the affidavit of Thaba, he made the decision based upon the opinion that the detainee
was in possession of certain information. However, when he arrested the detainee he did not tell her that this was why ho was detaining her. This, in my view, he should have done. Ex facie the Commissioner's affidavit (handed in at the hearing), he is the person who "authorised" her detention. He says he signed detention order certificates on the 7th January 1980 and lot February 1900 respectively. However, it transpires that, in fact he did nothing of the sort. He did not therefore personally sign those authorisation certificates. It is therefore quite obvious that he probably never applied his mind to the detention of this particular detainee which in terms of the Law he clearly must do.
It was submitted on behalf of the respondent that the decision to detain was that of Thaba and not the Commissioner. Well, the forms annexed to the Commissioner's affidavit indicate that this is not so. They do not merely designate a place of detention, but actually direct that the detention shall take place. If that is so, then it is the Commissioner, and not Thaba, who must have either had a reasonable suspicion or had formed an opinion. (See Mpiti Sekake v. Rex, 1971-3 L.L.R. 290 at 298 where Jacobs, C.J. encountered a similar problem in dealing with the Interpretation of Emergency Regulations 1970). Yet he does not say that he had. The Commissioner has furnished no information or explanation why he is not satisfied with the detainee's answers. Instead of doing so, he uses a blanket statement in paragraph / of his statement simply framed in terms of the section which clearly indicated, in my view, that he his not applied his mind to the question. This is clearly borne out by the release for which is pre-signed by him in blank. This must again clearly indicate that he is not likely to be called upon to form the view which the
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section requires him to do, regarding the detainee's answers to questions put in interrogation. In the present case there is no indication that he has, in fact, applied his mind to this most important question.
Ex facie the papers there have been two detention orders perportedly signed by the Commissioner. They are dated 7th January 1980 and 1st February 1980 respectively, After the first detention order, the detainee was confirmed at a designated place viz. Quthing Charge office. Then the detainee was released to the hospital. That first detention, in my view, terminated with the admission of the detainee at the said hospital as the said hospital was not a designated place where a detainee could be kept as required by the section. In the South African Act the detainee is detained at "any place deemed fit" by the "Commissioned officer of Police" whereas in our law the place of detention must be "designated by the Commissioner" and not a "Senior Police officer". That then is the only piece where the detainee is to be detained in terms of the Act. That is the place contemplated by the Legislature and no other. The detention of the detainee at the Quthing hospital (and the detainee spent more time there than at the designated place), although highly praise-worthy in itself,it was illegal as the Legislature never contemplated the detainee's detention at my other place but one designated by the Commissioner. When a second detention order was issued by the Commissioner for the detainee to be detained at Mohale's Hoek, which was purportedly a designated place, in my view, this was a new detention as the previous one had terminated. Moreover, the period of 60 days would be reckoned from the second detention, if it were legal, and not from the first ore, which was on the face of it, legal. I am not saying it was legal. The procedure is required by the section, therefore, had to be repeated. This process is repeated in a case where the 60 days have expired and the detainee has not yet replied satisfactorily to the questions at the interrogation. Perhaps in this case the detaining officer was acting in good faith in so doing but he was acting in excess of his authority. Describing a similar situation in the Republic of Botswana Rooney, A.C.J. (as he then was) in Mtetwa v. C.C. Prison, Lontse, and Ors.,
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1976 B.L.R. 1 at he is reported as follows, and with respect I entirely agree:
"It (court) is concerned here solely with the liberty of the subject. That liberty can only be taken away in accordance with law. A person may not be lawfully imprisoned by a public officer acting in good faith. but in excess of his authority. The validity of an xxxx or a warrent of imprisonment can never depend upon the good faith of the person making the arrest or issuing the warrant. (Birch v. Ring, xxx T.P.D. 196). As Wessels J.P. states in Cohen Leaxxx and Co. v. Gibbs, 1922 T.P.D. 142 at 145:
"If the Law were otherwise an innocent third person whose person is wrong-fully arrested or whose goods are wrongfully seized would be wholly unprotected, Such a state of affairs is inconceivable."
Finally, it is to be noted that section 6(5) of the Terrorism Act 83 of 1967 reads, in part, as follows:
"No court of law shall pronounce upon the validity of any action taken under this section, (similar to our section 12 of the Internal Security (amendment) Act 1976) or order the release of any detainee." (My underlining)
We have no equivalent of the words underlined in our section. Even in the Republic this section was introduced almost four years after the section similar to ours had seen the light of day. The Republican section is much wider than others. Nonetheless, in dealing with that section the republican Courts have indicated that their jurisdiction is not excluded in so far as certain types of illegal conduct is concerned. (See Rossouw v. Sachs (supra) at 561 xxx ; Schermbrucker v. Klindt (supra) 612 F-H; Mxasana v. Minister of Justice (supra) 748 D-H). In my view it follows as a natter of law that where a Court cores to a conclusion that a detainee is held illegally it can and must order the release of such a detainee from the custody of those in whose hands he is.
Taking all the circumstances in this case I come to the conclusion that the detention of KHABANG MARTHA SELLO is illegal and consequently prayer 1(a) of the order is hereby confirmed.
/The order .....
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The order for costs usually follows the result. The Petitioner, in my view, has substantiaily succeeded.
There is therefore no question as to who should pay the costs. The first respondant who opposed the grating of the substantial order now granted, is ordered to pay costs.
Before taking leave of the parties in this matter I wish to commend the police by being alert to the fact that they owed a duty of care to the detainee, by making it possible for the detainee to receive timeous medical treatment as it is their responsibility towards the detained persons. (See Mtati v. Minister of Justice, 1958(1) S.A. 221; Dolf v. Heath, 1959(l) S.A. 714 at pp. 719-20; Minister of Police v. Skosana, 1977(1) S.A. 31). I wish also to record my thanks to the legal representitives who argued their case so well and were thus of great help to the Court.
22nd February, 1980.
For Applicant : Mr D. Kuny
For Respondent : Mr W. Tsotsi.
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