CIV/APN/282/83

IN THE HIGH COURT OF LESOTHO In the matter of :

MARIA
KHELELI - Applicant

v

THE SOLICITOR-GENERAL - 1st Respondent

THE COMMISSIONER OF POLICE - 2nd Respondent

THE OFFICER COMMANDING - 3rd Respondent
(MAFETENG)

JUDGMENT

Delivered by Hon. Mr. Justice M. P. Mofokeng on the
14th day of December. 1983

This is an ex parte application in which the applicant
seeks an order:

1. That a Rule Nisi do issue upon the
respondents
returnable at 9.30 a.m. or as soon thereafter
as
counsel or attorney may be heard on this 12th day
of
December, 1983, calling upon the respondents to
show cause why:-

(a) The second and third respondents shall not

produce the body of THABO KHELELI before this Honourable
Court:

1. 
   The second and third respondents shall be directed
   to
   release THABO KHELELI from custody;

   
   

2. 
   The second and third respondents shall not
   be
   restrained from assaulting, torturing or any way
   threatening
   or psychological violence;

   
   

3. The
   second and third respondents shall not be directed

   
   

/to allow ...

-2-

to allow THABO KHELELI access to an medical examination;

4. 
   The second and third respondents shall not be
   directed
   to pay the costs of this application;

   
   

5. 
   The applicant shall not be granted further and/
   or
   alternative relief.

   
   

In the supporting affidavit of Maria Kheleli, who
describes Thabo Kheleli (hereinafter referred to as a Detainee) as
her son, stakes
that the detainee, who is a miner in the Republic of
South Africa, had paid her a visit as he was on leave. On the 9th
November 1983
he was arrested by the National Security Services
Police and she has not seen him since. She believes that his
detention is unlawful
for the following reasons:

6. 
   The Commissioner of Police had no reasonable
   suspicion
   that the detainee was involved in
   activities prejudicial to the
   security of the
   State nor did the Commissioner of Police
   have
   reasonable suspicion that the said detainee
   had
   information relating to such activities.

   
   

7. 
   That the said detainee is being subjected to
   physical
   and psychological torture. This
   information she received from an
   unnamed police
   officer whose name cannot be divulged because
   of
   fear. She has learned from this unnamed officer
   that the
   detainee's hands and feet are bound and
   that he cannot eat. Her
   fear is also strengthened
   by the fact that the police refuse to
   allow the
   detainee to exchange dirty linen for fresh one.

   
   

8. 
   The period of detention has exceeded the fourteen
   (14)
   days allowed and chat there is no indication

   
   

-3-

that his further detention has been ordered and also
whether the Advisory Commission has been appointed and met and
advised the Minister
to further detain the detainee. (I have been
unable to find provision for the establishment of the Advisory
Commission referred
to here.)

It is finally alleged that the detainee is suffering
from ulcers and his condition will deteriorate as a result of not
eating properly.

The principles applicable to applications of this nature
were set out in the case of Collier & Yeats (Pty) Ltd &
Others v Solicitor General of Lesotho, CIV/ APN/262/77 p.5 a
judgment dated 16th September 1977. They are once more repeated here
as they tend to be overlooked and these
are them:

" 1. That the applicant should not, succeed unless
the Court is satisfied that on the balance of probabilities the right
which
the applicant intends to protect is at least "apparent"
as stated in van der Linden ludicieel Practijcq, 2.19.1 or is
at least prima facie proof of such right. The fact that the
applicant had a reasonable prospect of success in the
main action
will be regarded as prima facie proof proof.

2. Even if an applicant should produce
prima facie
proof or show that ho has

a reasonable prospect of success in the main action, it
still does not neces­sarily follow that he must succeed in
obtaining an
interdict.

3. If an applicant should satisfy the
Court on the
above-mentioned minimum
requirement in regard to the evidence,

the Court can still refuse the interim relief if the
balance of convenience favours respondent. The Court should
consider the nature of the injury which the respondent,
on the one hand, will"" suffer if the application is
granted and he should ultimately turn out to

/be ...

-4-

be right, and that which the applicant. on the
other hand, might sustain if the application is refused and he
should ultimately turn out to he right. The Court must be
satisfied on the evidence that the granting of the interdict is
justified. (underline mine)

4. The Court must consider, whether the interim relief
is granted or refused, if any conditions, which appear to be
reasonable, should
not be attached to

the
order,"

I shall proceed to deal with each order as sought by the
applicant from this Court. I must state from the onset that I am
mindful
of the fact that the liberty of the subject is at stake and
that the security of the State is also involved.

It is usual for our Courts to grant the Rule Nisi in
the form in which it is phrased in 1(a). The sub­stance of the
order requires the respondents to produce Thabo Kheleli or if
that is
physically impossible, to explain where he is. (Muriel Modisane v
Commissioner of Police & Another. 1980(1) L.L.R. 149
at 150).

The Rule N, si contained in order 2 above
challenges the very basis of the detainee's dentention, namely the
lawfulness of it or its legality. The
present Act (Internal Security
(General)) Act 6 of 1982(hereinafter referred to as the Act)under
which the detainee is detained does
not, in my view, preclude the
challenge of the legality of the detention. If the provisions of the
Act are nob strictly complied
with the detention thereunder will be
invalid. (Mahase v Commissioner of

Police & Another. CIV/APN/282/82 dated 22nd
February 1983).

/as
...

-5-

As it was said in the case of Sello v Commissioner of
Police & Another, 1980(1) L.L.R. 158 at 172:

" It is the essence of this Act that the detainee
shall be prevented from having access with the outside world during
his interrogation
but a detainee shall certainly not be assaulted or
have his health or resistance impaired 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-F). It was not the intention
of parliament that these things should be
done for, if it were, it
would have clearly and explicitly said so."

Those words still hold good even in the present Act. A
mere detention under the detention Act does not deprive a citizen of
every
right he has unless the legislature has specifically decreed
so.

The applicant asks for an order that the second and
third respondents be directed to allow the detainee access to medical
examination.
Section 40(4) of the Act stipulates that the detainee
shall be subject to the provisions of the Prison Rules 1957 relating
to untried
prisoners (subject to any directions by the Minister).
Moreover, the Minister may order that a detainee be given medical
attention
at any hospital or place of medical treatment in which
event he will still be deemed to be still in custody despite such a
removal.
This later portion only emphasises the fact that the
detainee is held in Communicado. According to section 14 of the
Interpretation
Act 19 of 1977 the word "shall" shall be
construed as imperative and the word "may" as
permissive and empowering. It seems to me therefore wherever a
detainee is detained he is subject
to provisions of the Prison Rules
1957 relating to untried prisoners. However, the Minister

/has...

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has a descretion to order that the detainee should
receive medical treatment at a hospital or any other place where he
could be medically
treated e.g. a nursing home (in the proper sense).
However, in all these cases the detainee will be deemed to be still
detained.
What is clear is that a detainee, wherever he may be
detained, shall be subject to the provisions of the Prison Rules 1957
relating
to untried prisoners. It seems contradictory to me that the
Minister can, in the face of such an obligation as envisaged by sec.
40(4) give a contrary direction.

Part B Division 1 relates specifically to untried
prisoners. It makes provision for a variety of matters.
Section 98 provides for change of clothing from time to time; Section
100 makes provision
for the untried prisoner to make an application
to be attended to by a registered medical practitioner or a dentist
at his, the prisoner's,
expense. Section 106 also provides that for
the purposes of his defence, an untried prisoner may receive a visit
from a registered
medical practitioner selected by him or by his
friends or legal adviser under the same conditions as apply to a
visit by his legal
adviser. According to the Act the detainee shall
be subject to the provisions of the Prison Rules 1957 relating to
untried prisoners.

In the premises the applicant has established a prima
facie proof that she is entitled to the relief sought and there
is a reasonable prospect of success at the trial. I do not think any
question
of her locus standi can be questioned (See Sello v
Commissioner of Police (supra) p. 167)

Again without having gone into too much details into the
matter and on the principles referred to above,

/ I ...

-7-

I exercise my discretion in favour of granting the
applicant the Rule Nisi as prayed, returnable on 21st December
1983 at 9.30 in the forenoon or so soon thereafter as the Counsel may
be hoard.

JUDGE

14th
December, 1983

For
the Applicant : Adv. Mphutlane