CIV/APN/197/80

IN THE HIGH COURT OF LESOTHO

In the Application of :

'MASETSEBI NKHOLISE Applicant

v

1. 
   COMMISSIONER OP POLICE

   
   

2. SOLICITOR
   GENERAL Respondents

   
   

J U D G M E N T

Delivered
by the Hon. Justice F.X. Roonery on the 3rd day of February, 1981 .

On the 31St October, 1980, the applicant moved this
Court by way of notice of motion for an order in the nature of habeas
corpus calling
upon the respondents to produce the body of one
Nkarabeng Nkholise the husband of the applicant. The rule nisi
was issued on the 3rd of November and on the return date, the 5th
November, the proceedings were adjourned by consent to the 12th
November. A further postponement to the 26th November followed when
the matter was argued on the question of costs only.

In her founding affidavit the applicant deposed that she
was married to Nkarabeng Nkholise by civil rites in community of
property.
She said that her husband left home on the 23rd October in
order to carry out his work as a farmer. But, he failed to return
home
in the evening. She said that on the following day she saw her
husband handcuffered in the company of certain members of the Lesotho
Mounted Police, who were inspecting a herd of cattle belong to
Nkarabeng. This was in Chief Soko's area of the Quthing District
where
the applicant normally resides with her husband.

Later, at the place of Chieftainess 'Malebese Lebese the
applicant spoke to her husband who told her that he had been arrested
on
the evening of the 23rd October on suspicion of stock theft. He
also went on to allege that he had been severely tortured while in
the hands of the Lesotho Mounted Police. At the hearing of this
application, I intimated thai I did not consider it necessary to
investigate this allegation which if well founded could be the
subject of legal proceedings of a different nature.

2/ The applicant

- 2 -

The applicant went on to aver that between the 24th and
the 26th October her husband was detained "at the said
Chieftainess 'Malebese
Lebese". He was removed therefrom at
midday on the 26th October for an unknown destination. She searched
for her husband at
the Mount Moorosi Police Station on 29th October.
From a Sgt. Nkuebe she received information to the effect that her
husband had
been taken to the Quthing Police Camp. Instead of
pursuing her inquiries at Quthing, the applicant consulted her
attorneys at Maseru
and launched the present application two days
later.

The affidavits filled in reply by the respondents do not
disclose any major conflict of testimony. 2nd Lt. Joseph Nkobolo of
the Lesotho
Mounted Police stationed at Quthing said that on the 19th
September, 1980, seven head of cattle were stolen from the pound at
Quthing.
In the course of his investigations he received information
which pointed to Nkarabeng as being responsible for the theft. He
found
the suspect at Mothousile's Cafe at Sejamololi in the Quthing
District and arrested him for theft on the 24th October, 1980.
Thereupon
he took the suspect to a cattle post at Angolo's Nek, but,
he did not find the missing cattle there. Later in that day he found
some
cattle in the possession of a herdboy employed by Nkarabeng. He
seized these cattle and took him to the seat of Chieftainess
'Malebesele
Lebesele. The cattle were examined and the accused
charged with theft of seven head. Thereafter the Lt. left the accused
in the custody
of Warrant Officer Sesoane and the Chieftainess, who
it is alleged is the motor-in-law of Nkarabeng. The officer continued
his investigations
and returned to Chieftainess 'Malebesele's place
on the 25th October and instructed Tooper Khanyetsi to take the
accused and the
suspected stolen cattle to Quthing Police Station. He
goes on to say "I followed them in a vehicle in the company of
the other
Police officers. I overtook them and then took the accused
in my vehicle and conveyed him to Mount Moorosi Police Station and
left
him in charge of Sgt. Mutsi with the instruction to proceed with
him to Quthing Police Station".

The Lt. finally reached Quthing Police Camp on the 27th
October. He said that he believes that Trooper Khanyetsi arrived with
the
accused at Quthing Police Station on the 29th October. He goes on
"In the morning of the 31st October, 1980, I instructed Trooper
Gabriel to take the accused to the public prosecutor for remand by
the magistrate. I went to Maseru and when I returned the accused
was
still at the Charge Office because, I was told, no public prosecutor
was available to bring him before the Court for remand.

3/ On the

- 3 —

On the 3rd November, I instructed Trooper Makoko to take
the accused to the public prosecutor for remand. To the best of my
knowledge
and believe he was remanded on that day".

Mr. Lerotha Shoaepane the Clerk of the Court of the
Quthing District confirmed that on the 3rd November, 1980, Nkarabeng
Nkholise
was remanded in custody to the 10th November by a magistrate
Mr. B.S. Makaliana on a charge of stock theft.

The accused was arrested without warrent not later than
the 24th October. Although 2nd Lt. Nkobolo does not say so in so many
words,
it is reasonable to assume that he was acting under section 26
(b) of the Criminal Procedure and Evidence Proclamation 1938 as he
says that he had received certain information which led him to
believe that Nkarabeng was responsible for a theft. Under the section
referred to, a Peace officer and every other officer empowered by law
to execute criminal warrants is authorised to arrest without
warrent
every person whom he has reasonable grounds to suspect of having
committed any of the offences mentioned in part 2 of the
First
Schedule to the Proclamation. Theft is such an offence. The procedure
which must follow an arrest without warrent is set out
in section 34
of the Criminal Procedure and Evidence Proclamation.

"34.(1) No person arrested without warrant shall be
detained in custody for a longer period than in all the circumstances
.
of the case is reasonable, and such period shall not (subject
to the provisions of sub-section (2) of this section) unless a
warrant
has been obtained for the further detention upon a charge of
an offence, exceed forty-eight hours, exclusive of the time necessary
for the journey from the place of arrest to the Subordinate Court
having jurisdiction in the matter.

(2) Unless such person is released by reason that no
charge is to be
brought against him, he shall, as soon as
possible, be brought
before a Subordinate Court having
jurisdiction upon a charge of

an
offence :

Provided that if the magistrate of such Court is
temporarily absent, and there be no other magistrate available who
has jurisdiction
in the matter, such person may be detained in
custody until the return of such first-mentioned magistrate or 3uch
other magistrate
becoming available, whichever may be the earlier.

(3) Nothing in this section shall be construed as
modifying
the provisions of Part VIII or of any other law, whereby
a
person under detention may be released on bail.

(4) Whenever a person effects an arrest without warrant,
he
shall forthwith inform the arrested person of the cause of
the
arrest."

4/ It has been ........

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It has been said that "All interferences with the
liberty of the citizen are prima facie odious and it is for
the person responsible to establish why in the particular
circumstances such interference is legally justified"
(Ingram v
Minister of Justice, 1962 (3) SA 225 at 227 (Vieyra A.J.). In the
present instance the applicant no longer challenges the
lawfulness of
the arrest of her husband but she alleges that following his arrest
on the 24th October there was undue delay in bringing
him before a
Subordinate Court. As this delay rendered the application necessary
and proper she askes for her costs. The Crown, on
the other hand,
submits that the police acted in terms of section 34 0) and that had
the applicant made the proper inquiries at the
Quthing Police Station
she would have obtained information which would have made these
proceedings unnecessary.

The facts are that the accused was arrested on the 24th
October at Sejamololi. He made his first appearance before a
magistrate on
the 3rd November that is 10 days later. The police were
entitled to hold the accused for a period not exceeding 48 hours
exclusive
of the time necessary for the journey from the place of
arrest to Quthing.

I must say that the information placed before this Court
by the Crown as to what took place between the arrest of Nkarabeng
and his
appearance before a magistrate at Quthing falls far snort of
what is required to answer an application such as this. It is nowhere
stated what the distance is between Sejamololi and Quthing. There is
no information as to the state of the roads or the availability
of
transport or any estimate of the time necessary to make the journey
to Quthing. From what Lt. Nkobolo has to say it would appear
that if
he had not handed Nkarabeng over to Sgt. Mutsi at Mount Moorosi
Police Station, he would have brought his prisoner to Quthing
by the
27th October. There is nothing to account for the four days spent
either at Mount Moorosi or on the road between that station
and
Quthing. No details are given as to where the prisoner was taken or
how he was accommodated during that period or during the
succeeding
period before his production before a magistrate on the 3rd November.
No action was taken between the 29th and 31st October,
on which
latter day Lt. Nkobolo instructed Trooper Gabriel to take the
prisoner to the public prosecutor for remand by the magistrate.
The
excuse that the absence of a public prosecutor prevented Nkarabeng
being brought before the magistrate is completely unacceptable.

5/ Police delay

- 5 -

Police delay in charging detained persons was criticised
in a recent case before the Queens Bench Division in London. (in re
Sherman
and Apps, Times Law Report December 8, 1980). The Divisional
Court criticised the Metropolitan Police for disregarding the
requirement
of statute law and the common law that where an arrested
person is detained by the Police he must without delay be charged
with an
offence or informed that he might be prosecuted for an
offence. Unless there is special statutory provision to the contrary
the maximum
period for which an arrested person may be detained
without Toeing brought before magistrates is 48 hours. In the course
of the judgment
Lord Justice Donaldson is

reported to have said that " habeas corpus was a
remedy for an

abuse of power and it should rarely be necessary to
invoke it". He went on "It was right that all should know
that the writ
of habeas corpus had not fallen into disuse, but was a
real and available remedy. They should also know that if an arrested
person
was unable to apply for issue of the writ,others might do so
on his behalf. Furthermore, such applications were given absolute
priority
in fixing the business of the court". His Lordship
would only add the caution that the costs to the applicant of a
frivolous
application might be considerable as would bo the costs to
the police if the application was found to be justified.

On the 29th October the applicant in this case received
information that her husband was held at Quthing. This was already 6
days
after the date that her husband had told her was the date of his
arrest. To require the applicant to continue her searches and
inquiries
at various police stations as to the whereabouts of her
husband beyond that time, would be unreasonable. The applicant was
entitled
to seek legal advice and to proceed to this Court for
relief. Events subsequent to the 29th October have justified the
course which
the applicant took. It was not until the 3rd November,
the day upon which the rule nisi was issued, that the police
saw fit to bring the prisoner before the Subordinate Court in
purported compliance with section 34 of
Criminal Procedure and
Evidence Proclamation. The applicant must be held to have been
justified in seeking relief from this Court
in the situation which
confronted her and therefore the respondents must pay her the costs
of these proceedings.

F.X. ROONEY JUDGE

3rd February, 1981.

For Applicant : For Respondents: