CIV/APN/234/87
IN THE HIGH COURT OF LESOTHO In the Application of
TSOTSI SEHLOHO LIPHOLO ... Applicant
and
NCHECHE TSUKULU 1st Respondent
OFFICER COMMANDING R.L.M.P... 2nd Respondent
(Morija)
ATTORNEY GENERAL . 3rd Respondent
J U D G M E N T
Delivered by the Hon. Mr. Justice B.K. Molai
on the 30th day of November, 1987.
The applicant has filed a notice of motion in which he moves the High Court for an Order directing the Respondents to release to him fifteen (15 sheep and two (2) goats presently in the custody of the 2nd Respondent, payment of costs in the event of opposition, further and/or alternative relief.
Although all the Respondents initially intimated their intention to oppose this application, the 2nd and the 3rd Respondents subsequently withdrew their notice of intention to oppose and only the opposition of the 1st Respondent remained.
The 1st Respondent has also filed a counter application in which he seeks an order of the court declaring certain bewyses in the possession of the applicant null and void ab initio, costs of the counter application, further and/or alternative relief. The counter application was opposed.
Affidavits were duly filed by the parties. Briefly the facts disclosed by the affidavits are that on the night of 1st April, 1984, applicant's 15 sheep and
2/ 2 goats
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2 goats went missing from his home at Rothe. Subsequently the 1st Respondent was arrested and detained by the Morija police
According to applicant while he was detained by the police at Morija the 1st Respondent admitted to have stolen the animals aforementioned and undertook to return them. He was then released by the police.
While admitting that he was arrested and detained by the Morija Police in 1984, the 1st Respondent denied that he had admitted to have stolen applicant's animals nor did he ever make an undertaking before the Morija police that he would return any such animals. In fact he was released by the police at Morija for lack of any evidence connecting him with the theft of those animals.
I must say I find it highly improbable that the 1st Respondent who on his own admission had stolen applicant's animals and, therefore, committed a serious criminal offence, could have been released by the police at Morija even before he had produced the animals or taken the police where those animals could be found. To do so the police would have obviously run the risk of defeating their own criminal investigations for the 1st Respondent who was clearly a suspect would have been afforded a wonderful opportunity to dispose of the animals which were no doubt going to be used as exhibits in a criminal trial against him In my view, 1st Respondent's explanation that he was released by the police because no evidence connecting him with the theft of applicant's animals was forthcoming is more sensible and I am prepared to accept it as the truth.
In any event if applicant's story that 1st Respondent did admit before the police at Morija that he had stolen the animals were true, it would appear that such admission amounted to a confession made before police officers. If it were to be admissible such a con-fession had to be reduced to writing before a magistrate
3/ there is no .....
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There is no suggestion that the alleged confession made by the 1st Respondent to the police at Morija was ever reduced to writing before a magistrate. That being so, it remains inadmissible confession which has no evidential value.
Be that as it may, it is common cause that after the 1st Respondent had been released by the Morija police he was, on 11th January, 1987, rearrested by Crime Prevention Association of Qeme ha 'Mantsebo in connection with the alleged theft of applicant's 15 sheep and 2 goats. It is the applicant's case that after ho had been rearrested as aforesaid, the 1st Respondent freely admitted in writing that he had stolen his (applicant's missing sheep and goats. As 1st Respondent had already parted with the animals to other theives he undertook to replace them by his own. 1st Respondent accordingly wrote to his chief requesting him to issue bewyses for his sheep and goats with which he was going to pay the applicant. All this the 1st Respondent did before thy members of the Crime Prevention Association whilst under their detention.
In support of his averments, the applicant annexed a photostat copy of the letter in which 1st Respondent had admitted, before the Crime Prevention Association that he and some other people had stolen applicant's 15 sheep and 2 goats which he undertook to replace with his own animals. A photostat copy of the letter which 1st Respondent wrote, again in the presence of the members of the Crime Prevention Association, to his chief requesting him to issue bewyses for his 17 sheep and 2 goats with which he was going to pay the applicant was also annexed. On the basis of the letter which the 1st Respondent had written to him the Chief apparently issued the bewyses of which photostat copies were also annexed by the applicant.
As has been indicated earlier, 1st Respondent does not dispute that on 11th January, 1987 he was
4/ rearrested
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rearrested by members of the Crime Prevention Association in connection with the alleged theft of applicant's 15 sheep and 2 goats. He, however, avers that on his re-arrest, the members of the Crime Prevention Association whipped and made him to run in front of horses which trampled upon him. He was then kept in a house belonging to one Ntahli Mobile until 21st January, 1987, a period of 10 days during which he was assaulted in an attempt to force a confession out of him. Indeed, he was told that until he had made the confession he was not going to be released.
1st Respondent conceded that only to save his skin he eventually wrote the letters of which photostat copies were annexed by the applicant. On the basis of the letter he wrote, under duress to the chief, bewyses were issued to cover his animals which were subsequently handed over to the applicant. He denied, therefore applicant's averment that he had voluntarily admitted, before members of the Crime Prevention Association to Have stolen applicant's animals which he undertook to replace. He contended that as improper pressure had been exerted on him to write the letters of which photostat copies were annexed by the applicant, the purported admission therein contained was involuntarily made, illegal and, in law, no admission at all. Likewise the bewyses issued on the basis of the letter he wrote to his chief under duress had no legal force. Consequently upon his release from detention by members of the Crime Prevention Association, 1st Respondent wasted no time in reporting the incident to 2nd Respondent who then seized the animals which had unlawfully been taken by the applicant. He conceded, therefore that the animals were in the custody of the custody of the 2nd Respondent pending the finalization of this application.
As Proof that when he was rearrested he was whipped, made to run in front of horses which trampled upon him end whilst under detention by members of the Crime Prevention Association assaulted, 1st Respondent annexed a medical report which showed that upon his release from detention on 21st January, 1987 he immediately went
5/ to report....
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to report to the police who in turn referred him to
Morija hospital for medical examination and treatment of the
injuries he had sustained. According to the medical
report, the examination did reveal that 1st Respondent
was found to have sustained whip marks and lacerations
on the legs and skulp, respectively, for which injuries
he was given medical treatment.
In addition 1st Respondent averred that as a result of the assault perpetrated on him by members of the Crime Prevention Association he sued them for damages/compen-sation before the Matsieng Central Court. He annexed the Central court's judgment according to which his claim was however, dismissed for lack of sufficient evidence connecting individual defendants with the assault.
Considering the evidence as a whole, I am of the view that although the applicant denies that when he was rearrested and detained by members of the Crime Prevention Association, 1st Respondent was assaulted, the balance of probabilities favours the latter's story that he was assaulted obviously in order to force out of him the admission which ho did make, under duress.
Having decided that the applicant obtained the animals on the basis of the admission which the 1st Respondent made under duress, it necessarily follows that such admission was not legally binding and the appli-cant could not be heard to say he had a legal claim to those animals. In my view, it would be totally inequi table that the applicant should be permitted to retain the animals which he had no right to claim. Similarly the bewyses which the 1st Respondent, under duress, authorised to be issued are null and void and of no legal force.
It is not seriously disputed that the Crime Preven-tion Association with which the 1st Respondent admittedly entered into the purported agreement to replace applicant's missing animals is not registered in accor-dance with the provisions of the Societies Act No. 20 of 1966 or any law for that matter. For that reason the Association is illegal or operating unlawfully in this country.
6/ The court's
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The court's attention was drawn to the provisions of S.20(1) of the Societies Act No. 20 of 1966. The section reads
"20(1) If a society formed after the commencement of this Act, and which this part applies, is not registered under this Act, the rights of that society and any member thereof, under or arising out of a contract made or entered into by or on behalf of that society or member in relation to the business of that society shall, subject to the provisions of subsections (2) to (6) inclusive, not be enforceable by civil action or other civil legal proceeding, whether in the society's name or otherwise for so long as the society is not registered under this act, but any other party to such contract may so enforce his rights under or arising out of such contract against that society or that member thereof."
What the applicant is trying to do in the instant case is to enforce the agreement purportedly entered into between the 1st Respondent and the Crime Prevention Associ-ation which is not registered in accordance with the provisions of the Societies Act supra. That, in my opinion, will be a violation of the provisions of section 20(l) of the Societies Act No. 20 of 1966 and must not be allowed.
In the premises, the view that I take is that the applicant ought not to succeed in his application and the 1st Respondent's counter application ought to succeed with costs. I accordingly order.
B.M. MOLAI JUDGE
30th November, 1987. For Applicant Mr. Ramolibeli
For Respondent : Miss Lelosa for 1st Respondent
Mr. Mohapi for both 1st and 2nd Respondents.
