IN THE HIGH COURT OF LESOTHO
In the matter of :
THABO SEKHESA Plaintiff
SOLICITOR GENERAL )
OF DEFENCE ) Defendants
OF NATIONAL )
Delivered by the Hon. Chief Justice, Mr. Justice T.S.
Cotran on the 21st day of November, 1983
The plaintiff is claiming damages in the sum of M11,000
against the defendants for unlawful arrest and detention from the 3rd
until the 29th July 1983.
In their plea the defendants say that the plaintiff was
arrested lawfully in terms of s.32 and s.33 of the Internal Security
Act 1982 and held in custody until 1st July, They admit
however that his detention thereafter for a period of 27 days was
and offered to pay damages.
The plaintiff requested defendants to furnish him with
further particulars regarding the plaintiff's detention for the
3rd June 1983 and 1st July 1983.
Defendants replied that all, save one of the
particulars requested, are matters of evidence and
detail that would emerge at the trial.
The plaintiff moved the Court under Rule 30(5) to compel
the defendants to supply those particulars.
It seems abundantly clear to me that this application
must be refused. The main issue is clear, viz, whether
the arrest and detention for the disputed period was lawful or
cannot be decided unless evidence is heard. What the
plaintiff is seeking, under the guise of a request for further
is in reality a judicial interpretation, in advance of
argument, on the procedural aspect of extremely complex and difficult
in the Act. Any ruling on particulars may well be a decision
on the question of upon whom does the onus of proof lie and which of
the contesting parties should begin.
I need point out only some of these difficulties and
Section 32 sanctions arrest and detention for14
days but does not expressly provide for thearresting officer to
give the detainee reasons forhis suspicions either orally or in
writing and isunder no obligation to bring him before any court.
Section 33(1) enjoins the Commissioner incertain
circumstances to make an interim order ofcustody for 14 days.
This order must be inwriting. The purpose is presumably
to give authorityto the person in charge of a prison or some
suchplace, to hold and keep the detainee, but again thereis
no express provision that a copy of this ordershould be served
on the detainee or his relativeswithin a specified time. Nor is
there any provisionthat requires the Commissioner to disclose to
thedetainee the grounds of his suspicions. TheCommissioner
is obliged to report the detention
to the Minister but there is no provision about the
method or timing. Section 48 is imprecise because it speaks of "as
may be" and "in such manner as the authority
considers most efficacious". How soon and what method must be of
vary from case to case.
3. It is only after the elapse of a period of 28 days
that under the express provisions of the law (s.35(2)) that notice is
to be given to a detainee that the matter of his arrest and
detention has been referred to an advisor. After this stage the
is better spelt out. The defendants as I said admit
liability in this respect.
The general maxim is omnia praesumuntur rite et
solemniter esse acta. i.e. all things are presumed to be
correctly and solemnly done until the contrary is proved. The Act is
of course a penal act but
it is not possible today to say that the
maxim should be jettisoned. The presumption is in any event
If there is anything to be implied into these provisions
by way of judicial interpretation is a matter that has to await the
The Court is not prepared to say today that it ought to
incorporate into the law, by implication, something upon which the
either silent or imprecise.
Let me add that a detainee (s.40(4) of the Act) has the
right to be treated as an unconvicted prisoner in terms of the Prison
1957 (Vol II Laws of Lesotho p. 1300) unless the Minister
directs otherwise. We do not know if there was a contrary direction
the Minister. The Prison Rules are not inhumane. The standard of
accommodation and other amenities provided must perforce depend
the financial and manpower resources of the individual country. The
rules generally provide for beds and bedding baths etc...
but not the
exact numbers of blankets or nature and standard of conversational
civility that ought to be observed between warder
and prisoner. If
there has been infringements that entitles the detainee to damages
only the trial Court will be able to determine
on the evidence
The application as I had earlier intimated is dismissed
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