CIV/APN/197/80
IN THE HIGH COURT OF LESOTHO
In the Application of :
'MASETSEBI NKHOLISE Applicant
v
COMMISSIONER OP POLICE
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 bebrought against him, he shall, as soon as possible, be broughtbefore 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 modifyingthe provisions of Part VIII or of any other law, whereby aperson under detention may be released on bail.
(4) Whenever a person effects an arrest without warrant, heshall forthwith inform the arrested person of the cause of thearrest."
4/ It has been ........
- 4 -
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: