CIV/APN/216/84
IN THE HIGH COURT OF
LESOTHO

in the Application of :

MARY KHALANE Applicant

v

COMMISSIONER IN CHARGE OF POLICE 1st Respondent

MINISTER IN CHARGE OF POLICE 2nd Respondent

SOLICITOR GENERAL 3rd Respondent

JUDGMENT

Delivered by the Hon. Chief Justice Mr. Justice T.S.
Cotran on the 31st day of July 1984

On the 31st December 1984 the applicant Mary Khalane
moved the Court citing the Commissioner of Police and the Minister in
charge
of the Police, as respondents, seeking orders:-

1. 
   to procure the body of Jobo Khabo Khalane before
   the
   Court,

   
   

2. 
   to disclose to the applicant the whereabouts of
   the
   said Jobo.

   
   

3. 
   to justify that the detention of Jobo was in
   accordance
   with the law, otherwise to release him,

   
   

4. 
   that a magistrate be directed to visit the said
   Jobo
   wherever he is detained, and

   
   

5. 
   to direct that a doctor should visit the said Jobo.

   
   

A rule nisi was granted as prayed and after many
extended return dates Mofokeng J confirmed the rule on the 7th April
1982. What emerged
is found in the Judge's judgment. The long and the
short of the matter is that a Lesotho citizen, Jobo Khabo Khalane,
arrested allegedly
in terms of the Internal Security General
(Amended) Act 1974,

/was

-2-

was last seen in the hands of a member of the Lesotho
Paramilitary Force in November 1931 has not, according to his
relatives, been
heard of since. The learned Judge was obviously
concerned and implied in his judgment that Warrant Officer
Carthwright Selomo, who
admittedly arrested the said Jobo Khabo
Khalane, was not telling the truth when he averred in his affidavit
that after interrogating
Jobo for about an hour and a half, he
released him at a certain spot, and could not therefore produce him.
This incident, if I may
add, took place in a village on the borders
between RSA and Lesotho where a number of insurgents were active at
the time.

The confirmation of the rule by the Judge did not result
in the production of the body of Jobo Khabo Khalane but the Court's
displeasure
was manifested in the respondents being ordered to pay
the costs.

On the 26th July i 983, that is to say, about 14 months
after the judgment was pronounced the applicant sought, on the same
papers,
to "join" as 4th respondent,the officer commanding
the Lesotho Paramilitary Force, directing him to interrogate members
of his Force to find out the truth and establish the whereabouts of
Jobo Khalane "and to bring him before the Court dead or
alive".

The 4th respondent, through the Solicitor General,
resists such an application on the ground that he does not hold the
body of Khabo
and has "no reason to doubt the veracity" of
the statements of Warrant Officer Selomo with whom he discussed the
matter.
These statements as I said were earlier made by way of
affidavit to the Judge who dealt with the case.

Mr. Maqutu says that that affidavit by the
commanding officer does not show that a proper and honest
investigation has been conducted

into the disappearance of this man, but Mr. Tampi
for the Solicitor

/General

-3-

General says that we do not have in our jurisprudence a
provision for a judicial inquisition. The concept of habeas corpus
presupposes that there is a person detained by another person or body
of persons or an authority, who are called upon to justify
the arrest
otherwise to release the prisoner. The concept is not applicable once
it is established that no one knows the whereabouts
of the person
whose body is supposed to be produced.

If a person has not been heard of for seven years there
is a presumption that that person is dead. This period has not
elapsed but
if the Court is permitted to speculate the worst that
could have befallen Jobo is that he may no longer be alive. The next
question
that must arise is whether there is anything in our legal
system, common law or statutory, that permits the High Court or a
Judge
thereof, to unilaterally assume, without legislation, or the
necessary machinery, or precedent, the task of embarking upon an
inquiry
to try and find out if this man had been murdered, or eaten
by beasts, or had fled across the borders and decided to lie low, or
had met with some other vicissitude that might have happened to him.
The answer surely is that no such judicial powers exist. The
learned
Judge who was seised of the application could not find any nor can I.

The application is dismissed with costs.

CHIEF JUSTICE
31st July 1984

For Applicant : Mr. Maqutu For Respondents: Mr. Tampi