CIV/APN/276/86

IN THE HIGH COURT OF LESOTHO
In the
Application of:

CHIEF LEABUA JONATHAN Applicant

and

COMMISSIONER OF POLICE 1st Respondent

ATTORNEY
GENERAL 2nd Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
15th day of September, 1986.

On 4th September, 1986, the Applicant herein filed with
the Registrar of this Court an urgent application in which he moved
the court
for an order framed in the following terms:

"1. Declaring that orders by Respondent in letter
to Applicant dated 20th August, 1986 are invalied, of no force and
effect and
the Applicant need not to abide by them nor heed the same.

2. 
   Respondents to pay costs of this application
   in the
   event of their opposing same.

   
   

3. 
   Granting the Applicant further and/or
   alternative
   relief."

   
   

On 5th September, 1986 the Respondents intimated their
intention to oppose this application. Both the

founding and the answering affidavits were filed by the
applicant and the Respondents, respectively. No Replying affidavit
was, however,
filed by the Applicant.

It is common cause from the affidavits that on 20th
August, 1986, 1st Respondent caused a letter, annexure A, to be
served upon the
Applicant. It reads as follows, in part:

2/ "Chief Leabua Jonathan,

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"Chief Leabua Jonathan, Ha Rakolo.

Dear Chief,

Due to your recent political activities which are
prejudicial to public safety and public order, you are henceforth and
with effect
from your being served with this order, expected and
ordered to confine your movements within the boun­daries of the
site of
your residence until further notice. Only members of your
immediate family are allowed access to you.

In the event that you find yourself compelled to move
beyond the area you have been restricted to, you are ordered to
notify the nearest
Police Station to you.

By order,

(Signed) James Lebitso Dingiswayo COMMISSIONER OF
POLICE"

In his founding affidavit, the applicant averred, inter
alia, that the letter, annexure A, dated 20th August, 1986
purported to be a restriction order against him. Annexure A was,
however vague
as to the reasons for the purported order, its terms
and the authority upon which it was made for he knew of no actions or
omissions
by him which could, in good faith, be considered
prejudicial to public safety or public order. Nor, indeed, did he
know of the authority
which 1st Respondent had, in 2aw, to make such
an order.

Notwithstanding its patent invalidity applicant had
however, been advised that it would be unwise or improper for him to
simply ignore
the purported order. The applicant contended that as
the purported order impinged on his liberty and implied a threat that
action
would be taken against him, should he fail to observe the
terms thereof he was prejudiced and it was, therefore, a matter of
pressing
urgency that clarity should be obtained by a declaratory
order of this court. Wherefor, he moved the court for an order as
aforesaid.

3/ In his

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In his answering affidavit, 1st Respondent deposed

that he was the Acting Commissioner of Police. As
Commissioner of Police he was subject to the general directions of
the minister
and had command and suparintendance over the entire
Police Force whose duty was to preserve the peace and take remedial
action for
the prevention and detection of crime. He had in his
possession credible information that applicant was engaged in
activities which
caused internal dissentions and indulged in
subversive activities which if left unchecked would, in his opinion,
have undermined
public peace, tranquility and national reconciliation
within the Kingdom of Lesotho. He was unable, to give any details of
such in­formation
as it was extremely sensitive and disclosure
thereof would prejudice national and public security. However, the
interest of Public
safety demanded that for the preservation thereof
he should take immediate action to restrict the movements of the
applicant. Wherefor
on 20th August, 1986 he wrote to applicant
annexure A which was a restriction order. 1st Respondent further
deposed that in terms
of Section 24A of the Internal Security
(Amendment) Order 1986 which came into force on 1st August, 1986 he
was entitled to issue
restriction order if, in his opinion, the
person to whom it was issued was conducting himself in a manner which
was prejudicial to
public order and security of Lesotho. On
information received he had formed the opinion that the applicant was
conducting himself
in a manner highly prejudicial to public order and
security of Lesotho. On 7th September, 1986 he, therefore, issued
against the
applicant another order which reinforced the earlier one
dated 20th August, 1986.

It is significant to note that no law had been cited as
authority for the 1st Respondent to issue a res­triction order,
such as
the one embodied in annexure A, against the applicant or any
other person for that matter. In his answering affidavit the 1st
Respondent
has, however, deposed that as the Commissioner of Police
he was subject to the General directions of the minister thus
suggesting
that he was authorised so to act by the minister's general
directions vested in him. It seems to me, what the 1st Respondent had
in mind was the Police Order No. 26 of

4/ 19/1

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of 1971 of which section 5(1) provides:

"5(1) The commissioner shall subject to the general
directions of the minister, have the command and superintendence of
of the
Force."

In my view, the general directions of the minister under
which the 1st Respondent is authorised to act relate to the
government of
the Police Force. I am fortified in this view by the
provision of the subsequent subsection (2) which clearly reads:

"(2) The commissioner may issue or approve such
orders and direction for the government of

the Force as he may deem necessary."

There can be no doubt, therefore, that Section 5 of the
Police Order 1971 is no authority that 1st Respondent is empowered to
issue
orders relating to the applicant who is not a member of the
Police Force. From a proper reading of annexure A, it is abundantly
clear
that the grounds upon which it was decided to act against him
was that there was information that applicant engaged in subversive
activities likely to endanger public safety and public order.
Assuming the correctness of the information that the applicant
indul­ged
in subversive activities it seems to me that the
relevant law under which lawful steps could be taken against him was
the Internal
Security (General) Act No.24 of 1984. However, that Act
made no provision for the Commissioner of Police to issue restriction
orders
against persons involved in subversive activities. What
section 13(1) of the Internal Security (General) Act, supra,
empowers members of the Police Force to do is to arrest any such
persons. The section reads:

"13(1) A member of the Police Force may arrest

without warrant a person whom he reasonably

suspects to be a person involved in sub­
versive
activity."

That the Internal Security (General) Act No. 24 of 1984
had no provision authorising members of the Police Force to make
prohibition
orders against persons involved in subversive activities
is evidenced by the fact that on 4th September, 1986 the Legislature
had
to enact the Internal

5/ Security ...

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Security (Amendment) Order No. 21 of 1986 by which the
Principal Act was amended by the insertion, after section 24,

of Section 24A which reads, in part:

"24A(1) The Commissioner may, subject to the

approval of the minister, issue a restric­tion order
to a person who in his opinion is conducting himself in a manner
preju­dicial
to public order, the Security of Lesotho, the
administration of justice or obedience to the law or lawful
authority."

If the Internal Security (General) Act No. 24 of 1984
had a provision authorising members of the police Force to make
restriction
orders there would have been no need for the legislature
to amend it by the Internal Security (Amendment) Order No. 21 of
1986. ft
may also be observed that whilst in terms of section 2 of
the Police Order No. 26 of 1971 the definition of the word
"Commissioner"
includes the Acting Commissioner of Police,
the word "Commissioner" under section 3(1) of the Internal
Security (General)
Act No.24 of 1984 is simply defined as meaning
"the Commissioner of Lesotho Mounted Police" and does not
include the Acting
Commissioner of Police. It cannot therefore be
said that the Acting Commissioner of Police is the Commissioner of
Police for purposes
of the Internal Security (General) Act No. 24 of
1984.

There is not the slightest doubt in my mind that when on
20th August 1986 the 1st Respondent issued the restriction order
against
the applicant there was no law authorising him to do so. His
action was, therefore, ultra vires and for that reason
of no legal force. That is, however, not the end of the story for
when on 4th September, 1986 the Internal Security
(Amendment) Order
No.21 of 1986 came into being the Legislature enacted that it was
doomed to have come into operation on 1st August,
1986. The effect of
this was to legalise 1st Respondent's restriction order (annexure A)
of 20th August 1986 which was otherwise
illegal. There are, however,
two problems which seam to bedevil the restriction order (annexure
A). Firstly the Internal Security
(Amendment) order, 1986 does not
amend the definition of the term "commissioner" under the
interpretation section 3(1)
of the Principal Act. The 1st Respondent
as the Acting Commissioner

6/ of

—6—

of Police remains excluded in the definition of the term
"commissioner" and, it seems to me cannot be regarded as
such for
purposes of the Internal Security (General) Act 1984.
Gran­ted that as the Acting Commissioner of Police 1st Respondent
is not
the "Commissioner" within the meaning of the
Internal Security (General) Act No. 24 of 1984 it follows that he
cannot lawful
issue restriction orders under section 24A of the
Internal Security (Amendment) order No. 21 of 1986. Secondly S. 24A
(2) of the
Internal Security (Amendment) order No. 21 of 1986
provides:

"(2) A restriction order shall be in writing and
shall become effective from the data issue:

Provided that if after 14 days from the date of issue
the minister does not approve the order it shall lapse forthwith."

The restriction order (annexure A) was issued against
the applicant on 20th August, 1986. The 14 days referred to under the
proviso to the above cited subsection (2) expired on 4th
September, 1986. There is no suggestion that the minister had
approved the restriction
order on or before 4th Septeber, 1986. It
must, therefore, be accepted that when on 4th September, 1986 the 14
days expired without
the minister approving it, the restriction order
lapsed and had no legal force. That being so, the applicant cannot,
in law be expected
to abide by it.

This should be enough to dispose of the matter for the
other order dated 7th September, 1986 was non-existant at the time
the applicant
instituted these proceedings. It cannot, therefore, be
the order in respect of which this Court is required to adjudicate.

In the result, it is obvious that the view that I take
is that this application ought to succeed and it is accordingly
granted in
terms of prayers 1 and 2 of the notice of motion.

B.K. MOLAI

JUDGE

15th September, 1986.
For Applicant : Mr. Sapier

For
Respondent : Mr. Mguluma.