CIV/T/210/83

IN THE HIGH COURT OF LESOTHO
In the matter
of :

SIMON FRANK MAPETLA Plaintiff

V
THE SOLICITOR GENERAL Defendant

JUDGMENT

Delivered by the Hon. Acting Mr. Justice J.L. Kheola
on the 30th November, 1984.

On the 3rd May, 1983 the plaintiff issued a summons
against the defendant. He claims payment of the sum of M5O,OOO.OO
damages suffered
by plaintiff as a result of wrongful and unlawful
arrest, detention and assault perpetrated on the plaintiff by certain
members of
the Lesotho Mounted Police acting within the scope and
during the course of their employment with the Lesotho Government.

In his declaration the plaintiff averred that the
defendant is cited in these proceedings as representing

the Government of Lesotho. That on or about the 26th day
of November, 1982 and in Maseru plaintiff was wrongfully and
unlawfully arrested
by certain members of the Lesotho Mounted Police
(National Intelligence Service) among whom were Warrant Officer
Seshophe, Sergeant
Ratsolo and Trooper Motaung. Subsequent to that
arrest plaintiff was wrongfully and unlawfully detained at the Maseru
Police Headquarters
for the period 26th November, 1982 to the 29th

November,
1982.

/As a

-2-

As a result of the said wrongful and unlawful acts
plaintiff has suffered damages in the total amount of M50,000.00 made
up as follows:

Damages for:

1. 
   Unlawful arrest - R10,000.00;

   
   

2. 
   Unlawful detention R30,000.00;

   
   

3. 
   Assault - R10,000,00.

   
   

Plaintiff has averred that the requisite statutory
notice has been duly given to the defendant by the plaintiff.

A Notice of Appearance to defend was entered on the 6th
May, 1983 and a plea was lodged with the Registrar on the 14th June,
1983.
In his plea the defendant admits that the plaintiff was
arrested on the 26th November, 1982 but denies that the arrest was
wrongful
as alleged or at all. He contends that the arrest was
lawful and it was in pursuant of the provisions of the Internal
Security Act.
He denies that the plaintiff was assaulted during his
detention from the 26th November, 1982 to the 29th November, 1982.

So much for the pleadings.

The first witness called by the plaintiff is Dr. Maitin
who testified that towards the end of 1982 he examined the plaintiff.
He
did not give him the medical certificate immediately after the
examination but about two weeks later the plaintiff came back and
asked for it. He gave it to him. That medical certificate was
handed in as an exhibit "A". The doctor found the
plaintiff
to be in a poor physical state suffering from generalised
rheumatic symptoms

/and

-3-

and moderately severe bronchial infection which had to
be treated. He also was emotionally disturbed and suffering from
insomnia for
which therapy had to be given. The plaintiff was very
nervous and very depressed.

The doctor told the Court that he had known the
plaintiff for a very long time and that he had been the plaintiff's
family doctor
for a very long time. The plaintiff had always been a
very very jolly person despite whatever he was suffering from but on
this
occasion the plaintiff was very depressed and nervous.

The plaintiff stated that he is the chief of Masianokeng
and was born on the 13th January, 1907. He has 10 children and they
all
went to school. The eldest son Joas Tseliso Mapetla was the Chief
Justice of this country. The other son Moabi Mapetla was the
Permanent
Secretary for Finance and another child is a doctor at
Queen Elizabeth 11 Hospital. The plaintiff joined the civil service
in 1925
and was an interpreter in the High Court till he retired in
1965. He has never been involved in any litigation in Courts and has
a clean record. On the 26th November, 1982 the plaintiff was at work
at Anglo Collieries Recruiting Organization where he was employed
as
a clerk. Three men were ushered into his office by the manager. He
(plaintiff) asked them who they were. They were W/0 Seshophe,
Sgt.
Ratsolo and Tpr. Motaung,

The three police officers searched in his desk and found
a 1970 copy of "Makatolle" newspaper. They asked the
plaintiff
if he did not know that "Makatolle" was banned.
He explained to them that at the time the ban was made he already had
that
copy of "Makatolle." They also found an

/electric

-4-

electric cable and W/0. Seshophe said it could be used
as an explosive. The manager interrupted them and said the cable was
the property
of the firm.

After the search in the office was completed the
plaintiff was taken to his home at Masianokeng about 8 miles from the
town. When
they arrived at Masianokeng the plaintiff was asked
whether he had any firearms. He said he had several firearms,
ammunition and
permits. He produced the firearms and their
respective permits which were stapled together and gave them to the
police. They told
the plaintiff that they could not see a permit for
the single barrel shotgun and that he would have to answer for that.
The plaintiff
insisted that the permit they wanted was amongst the
others.

The police officers then said they wanted his letters
and all the documents he had. The documents were given to them and
they examined
them and they finally seized six copies of articles he
had written to the newspapers - four articles had appeared in the
"Leselinyana
la Lesotho" and two in the "Rand Daily
Mail" of Johannesburg. At 1.00 p.m. the police officers left
and promised
plaintiff that they would return after lunch and take
him back to work. At about 2.15 p.m. they arrived and took the
plaintiff to
the charge office. It was not explained to him why he
was being taken to the charge office. When they arrived at the charge
office
Tpr. Motaung explained to him that he had been instructed to
lock him up. It was his first time to be in a cell; its size was
about
4 paces x 6 paces. There was a window high up on the
wall, there was a mat on the floor and about 5 blankets and a latrine
bucket but
there was no toilet paper.

/He was

-5-

He was given no food that day. He slept in the cell that
night and felt very depressed. At 9.00 a.m. on the following day he
was
given something to eat, and again at 3.00 p.m. he was given some
bread and milk.

Plaintiff told the Court that when he was mentally
troubled and lonely in the cell he saw Hilton Hotel building through
the window;
he took the blankets and piled them below the window and
stood on them. He then started counting the windows of the hotel and
trees
near it. He stayed in the cell for the whole day on the 27th
November, 1982. On the 28th November, at 3.00 p.m. he was taken from
the cell to C.I.D. offices and put into an empty room. As he was
standing there alone, a person appeared with a blanket stretched
infront of him, so that he could not see him; he went behind him and
covered him with a blanket. As that person was holding him
with the
blanket he ordered him to come. Plaintiff followed him and that
person asked him who he was. He said he was Mapetla.
He pulled him
to the extent that he sort of ran after him; meanwhile that person
was saying: "Mokhehle's Mapetla, Mokhetle's
Mapetla, Mokhehle's
Mapetla." He says he was never a member of any political party
in this country.

He was taken to another office and made to sit on a
chair. When he was uncovered there were five people sitting infront
of him.
They were Tpr. Motaung, Sgt. Ratsolo, Mr. Letuka and another
person who used to give him meals in the cell. Mr. Letuka asked him
what he was. He said he was a chief. He (Mr. Letuka) got very angry
and said he was a better and senior chief than him. At this
stage he
was again covered with a blanket, and then he was asked how he and
Mokhehle and their colleagues formed the

/L.L.A.

-6-

L.L.A. He said he knew nothing about the L.L.A. As he

said so he heard the foot steps of a person running
towards the office on the right side, he came back and hit him on the
head with
something like a rubber knobkerrie. While this was going on
they were still asking him questions and also insulting him with his
mother's private parts. They held his ears and shook him, they also
slapped him. They prodded him on the chest with something like
a
muzzle of a gun. The insults hurt him very much because they were
uttered by people much younger than him.

As the interrogation went on Mr, Letuka left for the

adjacent office, he came back and uncovered him. He
then put the muzzle of a pistol on his (plaintiff's) forehead and
said he should
choose death or life. They said if he was not going
to tell them what they wanted they would press him and it would come
out through
the anus. Mr. Letuka asked him about the articles he had
written to the press and said: "Mapetla, you have destroyed
this nation
with your papers, this nation no longer wants to
follow the authority. You are not aware of how big your influence is
over this nation." Plaintiff
explained that he wrote articles
for the press because he wanted things to return to normal in this
country and that elections should
be held.

They again covered him with a blanket over his head and
one of them kept on bringing additional blankets and put them over
him. The
weight of the blankets caused him to sweat and he was also
suffocating. They started to remove the blankets one by one till
only
one blanket remained. They again started to put them back on top
of him one by one

/and

-7-

and when they put the eighth blanket over him he fell
down. The blankets were removed and he was ordered to stand up but
was unable
to do so., He asked for water and they gave

it to him. As he was unable to stand up on his own the
policemen supported him and conveyed him into a vehicle.

Mr. Letuka told him that the interrogation would
continue on the following day and that he would be treated well. The
interrogation
had lasted more than two hours. He was taken back to
the cell and he felt physically and mentally exhausted and depressed.

On the following day the interrogation started at 10.00
a.m. and it was conducted by a different set of men. He admitted that
he assisted
one Sekhesa to flee the country. Plaintiff explained
that Sekhesa had been his friend for a long time. On the 23rd
October, 1982
Sekhesa arrived at his home and informed him that he
was fleeing from "Koeeoko" (police) and he gave him
refuge in his house. He advised Sekhesa that if he wanted to leave
the country he could cross the border at Dondon

The plaintiff testified that before he was released Mr.
Letuka warned him that if he continued to write to the newspapers
they would
kill him because things were bad in this country. He was
also instructed to fill a declaration form in which he recorded that
the
detention for questioning was in respect of his possession of
unlicenced firearm

and press articles. He also declared that he had not
been assaulted by the police during his detention, therefore he

had no complaint against the police. He says what he
declared in the form was not true, he was afraid that if he told the
truth he
would be taken back to the cell. After he was released he
remained in bed for a week and was very depressed.

/The
Declaration

-8-

The declaration form was handed in as an exhibit B. It
shows that the plaintiff's hand was very shaky when he filled it.
Exhibit
C is a piece of paper on which the plaintiff printed his name
and signed it. This piece of paper was intended for comparison with
Exhibit B. It shows that the hand of the plaintiff was fairly steady
in Court.

The plaintiff closed his case.

The first defence witness is Lt/Col. Letuka attached to
the National Security Services. On the 26th November, 1982 he gave
instructions
to members of his staff to go and arrest the plaintiff
and detain him for interrogation. He was acting in terms of the
Internal Security
(General) Act 1982. He took this action because
prior to the 26th November, 1982 he had information that a person
named Thabo Sekhesa,
who lives at Moshoeshoe 11, had some connections
with L.L.A. - an organization involved in subsersive activities
against the Government
of Lesotho.

He decided to arrest Thabo Sekhesa for interrogation and
instructed a team of police officers to go to the home of

Thabo Sekhesa and arrest him. The team left for
Sekhesa's home very early in the morning but found that he had
escaped.

On the 2nd November, 1982 Thabo Sekhesa surrendered

himself to the police and told them that he had gone out
through the window of his house and fled to Masianokeng where he
sought refuge
in the home of the plaintiff. The plaintiff advised
him to leave the country and to cross the border at Dondon. As a
result of
this information Colonel Letuka suspected that the
plaintiff was also involved

/in subsersive

-9-

in subsersive activities, The interrogation of Sekhesa
was completed on the 3rd November, 1982 and he was released.

The interrogation of the plaintiff was done by a team of
police under the command of Warrant Officer Ratsolo who was ill in
hospital
on the day of the hearing of this case, He (Col, Letuka) did
not take any part in the interrogation, in fact, he did not even see
the plaintiff at all during his detention. All he saw was a report
of the interrogation handed to him on the 29th November, 1982.
As he
was satisfied with the report he ordered that plaintiff be released.
He denied that he forced the plaintiff to sign a declaration
form.
He did not arrest the plaintiff immediately after the 3rd November,
1982 when he learnt that he was involved in subversive
activities
because the cells were full and he had no place where he could keep
him.

The second defence witness is Trooper Mokhojoa. On the
29th November, 1982 Colonel Letuka instructed him and three other
officers
to interrogate the plaintiff. The other police officers
were Warrant Officer Ratsolo, Warrant Officer Lethola and Trooper
Griffith.
The interrogation started in the morning and was completed
before lunch, The plaintiff was very cooperative and no force was
used.
He (Tpr. Mokhajoa) was not involved in the interrogation that
took place on Sunday (28/11/82) and knows nothing about it. He
denies
that he refused to give the plaintiff toilet paper.

Warrant Officer Lethola testified that on the 29th
November, 1982 he received the order from Colonel Letuka that the
plaintiff should
be released from detention. He gave him a blank
declaration form and asked him (plaintiff)

/to fill

-10-

to fill it up. The plaintiff duly filled the form and

declared that he had no complaint against the police.
Colonel Letuka was not present when the plaintiff filled

the form. The plaintiff was not frightened when he
filled the form but appeared to be shaky because of his old age,

Warrant Officer Seshophe also gave evidence but I shall

not say anything about his evidence because he did not
take part in the interrogation. Although he was the one who was in
charge
of the team which effected the arrest of

the plaintiff he was merely acting under the
instructions of Colonel Letuka. His instructions were that he should

search the plaintiff for arms and any documents against

the Government and also to arrest him because he had
assisted

Thabo Sekhesa to flee the country.

This was the close of the defendant's case.

It is trite law that in the case of unlawful arrest the
onus is on the defendant to establish that the arrest

was legally justified. In Thompson and Another v
Minister of Police and Another, 1971(1) S.A. 371 at p.
374. Eksteen. J., put it in the following words:

"Both claims, i.e. in respect of the wrongful
arrest and in respect of the malicious arrest, are based on the actio
injuriarum and in both instances the animus injuriandi or
dolus is an essential element. In The case of wrongful
arrest, however, the intention may be said to be direct - dolus
directus - as it is done with the definite object of hurting the
defendant in his person, dignity or reputation (Melius de Villius on
The
Law of Injuries, p. 27). The arrest itself is prima facie
such an odious interference with the liberty of the citizen
that animus injuriandi is thereby presumed in our law, and no
allegation of actual subjective animus injuriandi is necessary
(Foulds v Smith, 1950(1) S.A. 1 (A.D.) at p. 11). In
such an action the plaintiff need only prove the arrest itself
and the onus will

/then

-11-

Then lie on the person responsible to establish that it
was legally justified. (Thereon v Steenkamp, 1928
C.P.D. 429 at 432; Ingram v. Minister of Justice, 1962
(3) S.A. 225 (W) at p. 227)."

It is not in dispute that the plaintiff was arrested on
the 26th November, 1982 and detained in police custody until the 29th
November,
1982. If the arrest was lawful it will automatically
follow that the detention was also lawful. But if the arrest is
found to have
been unlawful the detention will also be unlawful.
Colonel Letuka told this Court that when he ordered the arrest of the
plaintiff
he was acting in terms of section 32 of the Internal
Security (General) Act 1982. Subsection (1) reads as follows:

"A member of the police force may arrest without
warrant a person whom he reasonably suspects to be a person concerned
in subversive
activity."

Subversive is defined in section 3(1)(F) of the Act and
for the sake of easy reference I shall re­produce the whole
definition:

"Subversive", without limiting its ordinary
meaning, includes -

(a) Supporting, propagating or advocating any act
or
thing prejudicial to public order, the
security of Lesotho or the
administration

of
justice;

2. 
   inciting to violence or other disorder or crime,
   or
   counselling defiance or disobedience to the
   law or lawful
   authority;

   
   

3. 
   being concerned personally or by directing
   organizing
   or training another person or other
   persons, in the commission,
   attempted
   commission, preparation or instigation of an
   act
   involving the use or threatened use of
   violence, including the
   use of threatened use
   of violence for the purpose of putting
   the
   public or any section of the public in fear;

   
   

4. 
   intended or calculated to support or assist or
   benefit
   in or in relation to such acts or
   intended acts as are
   hereinafter described,
   persons who act, intend to act or have
   acted
   in a manner prejudicial to public order, the

   
   

/security

-12-

security of Lesotho or administration of justice, or who
incite, intend to incite or have incited to violence or other
disorder or
crime, or who counsel,.intend to counsel or have
counselled defiance of or disobedience of the law or lawful
authority;

5. 
   connection, association, or affiliation with,
   or
   support for, an unlawful or ganisation;

   
   

6. 
   intended or calculated to promote feelings
   of hatred
   or enmity between persons or
   communities in Lesotho;

   
   

7. 
   intended or calculated to bring into hatred or
   contempt
   or to excite disaffection against any
   public officer, or any
   class of public officers,
   in the execution of his or their
   duties;

   
   

(h) intended or calculated to seduce a public officer
from his allegiance or duty;

and "subversive activity" has a corresponding
meaning."

Wow the question is whether the plaintiff has committed
any subversive activity as defined in the Act. 0r, to put it in
another way,
did Colonel Letuka reasonably suspect the plaintiff to
be a person concerned in subversive activities. The Colonel has
given as
his reason for ordering the arrest of the plaintiff the fact
that he assisted Thabo Sekhesa to leave the country. The first point
the defendant had to prove is that the plaintiff knew that Sekhesa
was concerned in subversive activities and assisted and advised
him
being fully aware of his

involvement in subversive activities. The defendant has
led no evidence to show that the plaintiff was fully

aware that Sekhesa was fleeing from the police because
they

wanted to arrest him in respect of his subversive
activities. He has not called Sekhesa to come and tell the Court

what he told the plaintiff about his flight. The
plaintiff told the Court that Sekhesa told him that he was running

away from "Koeeoko" which plaintiff considered
to mean "being killed by the police". He told the Court
that he

/did not

-13-

did not know Sekhesa^!s political stance.

Section 18(c) of the Internal Security (General) Act
1982 (hereinafter called the Act) makes it an offence for

any person who "inside or outside Lesotho knowingly
habours a person required to be detained under an interim custody
order or
detention order or gives him assistance with intent to
prevent, hinder or interfere with his being taken into custody."
A person
described in section 18(c) is a person suspected of being
concerned in subversive activity

(See section 33(1) of the Act). I have underlined the
word knowingly as an indication that the intention of the

Legislature is to punish people who know that the person
they are assisting is concerned in subversive activities. It is clear
from
the section that mere assistance to a person fleeing from the
police is not an offence unless the person knows that the assisted
person is a person involved

in subversive activities. Thabo Sekhesa did not tell
the plaintiff why "Koeeoko" was chasing him and he merely
assisted
a friend because he did not wish to see him die in the hands
of "Koeeoko", I have come to the conclusion

that there is not an iota of evidence to show that the
plaintiff knew that Thabo Sekhesa was a person involved in

subversive activities at the time he gave him refuge in
his house and advised him to leave the country.

I must make it quite clear that if a person who is in
lawful custody escapes and another person habours him knowing well
that he has
escaped from lawful custody, that

other person is guilty of an offence in terms of section
44 (2) of the Criminal Procedure and Evidence Act 1981.

Even under this section it must be proved that the
person was in lawful custody. Thabo Sekhesa was not in the lawful
custody of the
police when he escaped through the window

/and went

-14-

and went to the home of the plaintiff. Colonel Letuka
made it quite clear that he was acting under the provisions of the
Act and
not the Criminal Procedure and Evidence Act 1981.

Now I come to the most important part of this case.
Colonel Letuka said that he arrested the plaintiff because

he gave assistance to Thabo Sekhesa about whom he had
information that he was involved in subversive activities.

Sekhesa returned to Lesotho on the 2nd November, 1982
and on the 3rd November, 1982 he was interrogated and released
because the Colonel
was satisfied he was not to

be charged. I take this to mean that the interrogation

revealed that Sekhesa was not involved in any subversive
activities in that no connections between him and L.L.A. could be
established.
Now the question one may ask is this: if the person
the plaintiff assisted to leave the country was found to be not
connected with
the activities

of the L.L.A. nor concerned with any subversive
activities why did Colonel Letuka arrest the plaintiff three weeks

after he had found Sekhesa to be innocent? What further
information did he have showing that the plaintiff was involved in
subversive
activities as defined in the Act?

Surely, Colonel Letuka had convinced himself that the

information he had received against Sekhesa was
unfounded. He ought to have realized that whatever suspicion he had

against the plaintiff had to fall away as soon as he
found that Thabo Sekhesa was not involved in any subversive

activities.

Mr, Browde, for the plaintiff, has submitted that
the

arrest of the plaintiff had nothing to do with Sekhesa.
He

says that the real reason why the plaintiff was arrested

is the fact that he published certain articles in the
press

which were critical of the Government. He contends that
it

/is nonsense

-15-

is nonsense to say that on the 3rd of November, 1982

Colonel Letuka knew that the plaintiff was a person
involved in subversive activities against the State, but

left him for nearly a month with his subversive
activities simply because there was no cell in which he could

interrogate him. I entirely agree with Mr. Browde
that the reason given by Mr. Letuka is so untenable that it

must be rejected. A person known to be concerned in

subversive activities cannot be left free even for a
single day because the security of the state is so

important that no police officer can take any chances.
The truth of the matter is that from the interrogation of

Thabo Sekhesa it became clear that the plaintiff was not
involved in any subversive activities and that is the only reason why
Colonel
Letuka did not arrest him immediately after the release of
Sekhesa,

I now deal with the articles published in the newspapers
by the plaintiff. The defendant has not alleged that any of those
articles
had subversive material except that they were critical of
the Government of Lesotho.

If it had been proved that the sort of criticism that
the plaintiff made in the articles had a subversive element that
would be a
different matter. The articles would have

been produced before this Court and I would have been
given the chance to give my interpretation whether they had any
subversive element.
As the articles were not

exhibited before this Court I have found that the
defendant does not intend to rely on them. Be that as it may,

Colonel Letuka said one of the reasons why he arrested
the plaintiff was that he wrote the articles. I must

emphasise that a man cannot be arrested simply because
he legitimately criticises the Government. It must be shown

that the criticism was subversive to the security of the
State in terms of section 3(f) of the Act. In my view the

/defendant

-16-

defendant has failed to show that the articles had any
matter which could reasonably be regarded a subversive to State
security.
The suspicion Colonel Letuka had

created by the publication of these articles, was not
based on reasonable grounds.

It was also suspected that the plaintiff had unlicenced
firearms. The plaintiff explained to the police officers who
arrested him
that he had permits for all the firearms found in his
possession but he was given no chance

to look for the permit. His contention is that all the
firearm permits were stapled together and was still amongst

the others when he was arrested. The licence was
subsequently found by the plaintiff and in my opinion the police

officers were negligent and also acted in a high-handed
manner in arresting the plaintiff without a warrant. (See

section 24(b) of the Criminal Procedure and Evidence Act
1981). I have not seen any provision in the Act

authorizing a police officer to arrest without warrant
any

person suspected of being in possession of a firearm
without a permit.

Mr. Tampi, for the defendant, has referred me to
section 7(1)(f) which reads:

"A person who, inside or outside Lesotho -

(f) supports or benefits who does, intends to do

or
has done, any act with subversive intention;

is guilty of the offence of subversion and liable on
conviction to imprisonment for a period not exceeding five years. In
a prosecution
for an offence under this section, it shall be
presumed, unless the contrary is proved, that the accused had the
subversive intention
alleged against him under this section."

The plaintiff has not been charged with any criminal
offence.and bears no onus in the present case. We agreed

/from

-17-

from the outset that the onus was on the
defendant to prove that the arrest was legally justified (Thompson's

case, supra). The defendant had to discharge the onus
on a balance of probabilities.

The plaintiff told the Court that the first session of
interrogation took place on the 28th November, 1982. His
interrogators were
Colonel Letuka, Warrant Officer

Ratsolo, Trooper Motaung and another officer who used to
give him meals in the cell. He explained in great detain the inhuman
treatment
he underwent that day. Under cross-examination it was
never put to the plaintiff that

on the 28th November no interrogation took place. The
effect of failure to cross-examine a witness was

summarized by Claassen, J. in Small v Smith
1954(3) S.A. 434 at 438 when he said:

"It is, in my opinion, elementary and standard
practice for a party to put to each opposing witness so much of his-
own case
or defence as concerns that witness, and if need be, to
inform him, if he has not been given notice thereof, that other
witnesses
will contradict him, so as to give him fair warning and an
opportunity of explaining the contradiction and defending his own
character.
It is grossly unfair and improper to let a witness's
evidence go unchallenged in cross-examination and afterwards argue
that he must
be disbelieved."

The evidence of the plaintiff was not challenged on

a very important point that interrogation did take place
on the 28th November. The only thing that was put to the

plaintiff was that Colonel Letuka did not take part in
the interrogation and that he was never assaulted. I am now

being
asked to disbelieve the plaintiff that he was

interrogated on Sunday (28/11/82).. This brings me to
the question of credibility. The plaintiff gave me the

impression of a very creditworthy witness and gave his
evidence in a very straight forward manner. At one stage

/during

-18-

At one stage during his evidence-in-chief the plaintiff
broke down into tears when he explained how depressed

he felt in the cell. He gave me the impression that he
was a truthful witness who made no exaggeration, for instance, when
he said
he fell to the ground when the

heap of blankets was placed on him for the first time,
he immediately corrected himself and said he only fell on the second
occasion.
On the other hand Colonel Letuka did not impress me as a
truthful witness. For instance, when it was put to him that they
degraded
the plaintiff by not giving him a toilet paper, he denied
this and yet he was not the person in charge of the cell in which the
plaintiff
was locked. According to him he never saw the

plaintiff during the entire episode from the 26th to the
29th when he was released. Now why does he deny that at

one stage the plaintiff had no toilet paper in his cell?
Trooper Mokhajoa was so evasive that during the cross-examination I
had occasion
to warn him that if he went on at that rate his entire
evidence would be discarded. In any case, he told the Court that he
knew
nothing about the interrogation that took place on the 28th
November, 1982; he said a different group of officers may have
interrogated
the plaintiff on that day. But as I have already said
Trooper Mokhajoa was totally unworthy of credit. He said on the
morning of
the 29th November Colonel Letuka instructed him and others
to go and interrogate the plaintiff. They were four in the office
when
the order was given. Under cross-examination he attempted to
retract from this statement by saying that the order was actually
given
to his immediate superior officers by Colonel Letuka and they
in turn relayed it to him. The probabilities are that the
interrogation
took place on the 28th November, 1982 during

/which

-19-

which the plaintiff was assaulted, insulted and also
humuliated.

Mr. Browde has submitted that the Court must draw
an adverse inference against the defendant for failure to call
Trooper Motaung who was available
at the time of trial. The Court
was informed that Warrant Officer Ratsolo was not available as he was
ill in hospital. I agree
that in a proper case an adverse inference
may be drawn against a party who fails to call a witness who is
readily available. The
present case is a borderline case. The
plaintiff said he was assaulted by a group of officers including
Colonel

Letuka and Trooper Mokhajoa; the defendant called the
two officers and they denied that they took part in the

interrogation on the 28th. He may have thought that his

case had already been sufficiently proved by the two
witnesses. (Webranchek v L.K. Jacobs & Co. Ltd. 1948(4)

S.A. 671 (A.D.)) I am unable to draw any adverse
inference against the defendant for his failure to call Trooper

Motaung. The problem I see is that the defendant
conducted his case in such a way that he was not denying that

interrogation took place on the Sunday (28/11/82). He
failed to challenge the plaintiff on this point and gave the

impression that he was admitting this point.
Notwithstanding this I thoroughly considered the evidence of Colonel
Letuka

and Trooper Mokhajoa and came to the conclusion that
they were not truthful.

I may summarize the case by pointing out that the

question of whether the arrest was unlawful is not
decided by reliance on credibility of witnesses; the facts or reasons
which prompted
the arrest are not in dispte. The only question is
whether those reasons may objectively

/be regarded

-20-

be regarded as a sound basis or reasonable grounds for
arousing the suspicion of Colonel Letuka that the plaintiff

was a person concerned in subversive activities against
the State. For the reasons I have attempted to give above

my answer is in the negative, i.e. the suspicion was not
based on reasonable grounds. My finding is that the

arrest was unlawful and it follows that the detention
was also unlawful.

As far as the question of assault is concerned that will
greatly be determined by credibility of witnesses. For the reasons I
gave
above I come to the conclusion that

the plaintiff has proved on a balance of probabilities
that he was assaulted by the police on the 28th November,

1982.

As far as quantum of damages is concerned I have not
found much assistance from the authorities, Mr. Browde referred
me to a South African case of Ramsay v Minister

Van Polisie En Andere 1981(4) S.A. 802. The case
is reported in Afrikaans, a language I cannot read. In

Ramolefe v The Principal Legal Adviser
(1967-1970) L.L.R. 214 at p. 231 Jacobs, C.J. said:

"It is always a matter of difficulty to determine
the amount to be awarded for an injuria of this type. Our law
has always regarded the deprivation of personal liberty as a serious
injury and where, as in this case, one
is dealing with a professional
man of good reputation in the community it seems clear that the
amount awarded should normally be
substantial."

In that case the learned Chief Justice awarded R1,500 as
damages for wrongful arrest and malicious prosecution. In the present
case
the plaintiff is a chief of good reputation and his subjects
must have known of his arrest.

/it was

-21-

It was also proved that he is a respectable citizen of
this country and was a civil servant for most of his life and
attained the
rank of interpreter of the High Court.

His eldest son was the first Mosotho to be the Chief
Justic of Lesotho. His other children held senior posts in the

civil service. It seems to me that very substantial
damages must be awarded to the plaintiff for the unlawful arrest and
unlawful
detention that followed. Nevertheless I must bear in mind
that at the relevant time the security police were fighting with a
formidable
enemy known as the L.L.A. But that did not justify
unreasonable behaviour on

the part of the police. I am of the view that Colonel
Letuka did not act in good faith because the evidence he

had before him clearly showed that the plaintiff could
not be a person concerned in subversive activities against the

State.

Having thoroughly considered the matter and taken into
account that the defendant has not challenged the

amounts claimed by the plaintiff I have decided to award
R8,000 (eight thousand rand) x damages for unlawful arrest

and unlawful detention.

As far as damages for assault are concerned Mr. Tampi
has argued that medical evidence does not support the

plaintiff because it does not refer to any physical
injury. I agree, but Dr. Maitin referred to depression. The

plaintiff testified that when a heap of blankets was put
on him he suffocated and fell down. He felt so weak that

he had to ask for water and could not stand on his own
without the support of some officers. After he was released from
detention
he had to remain in bed for a week. In Raputsoe v The
Principal Legal Adviser (1967-1970) L.L.R. 133 an amount of R900
was awarded for pain and

/suffering

-22-

suffering and R3,000 for contumelia. In that case the
plaintiff had suffered extensive physical injuries. In the present
case the
pain and suffering were of very short duration but the shock
of suffocation, the insults and the putting of a pistol on the
forehead
of the plaintiff call for a substantial amount of award. I
have decided to award R3,000 (three thousand rand) as damages for
assault.

The result is that on the claims for unlawful arrest and
unlawful detention and assault there will be judgment for plaintiff
for R11,000
as damages. The defendant will pay costs.

ACTING JUDGE.
30th November, 1984.

For the Plaintiff : Mr. Browde
For the Defendant
: Mr. Tampi.