IN THE HIGH COURT OF LESOTHO In the
TSELISO TS'EPHE' Applicant
'MANOOKHO PHIRI Applicant
THE COMMANDER OF THE ROYAL LESOTHO
FORCE 1st Respondent
THE OFFICER IN CHARGE OF THE MASERU
PRISON 2nd Respondent
ATTORNEY-GENERAL 3rd Respondent.
J U D G M E N T
The two applications, CIV/APN/306/90 and CIV/APN/307/90
have been consolidated by agreement of the parties. On the 4th
December, 1990Mr. Sello, applicants' attorney, moved these
applications ex parts and on urgency certificate. He obtained
an order couched in the following terms:
A. That a Rule Nisi be and is hereby granted calling
upon the Respondents to produce the person of TS'EPHE TS'EPHE before
on Thursday the 6th day of December 1990 at 9.30 in the
forenoon or so soon thereafter as the matter may conveniently be
there and then to show cause, if any, why:
The said TS'EPHE TS'EPHE shall not bereleased
forthwith, from custody.
The Respondents shall not be ordered, adinterim,
and in the alternative, in theevent of prayer 1 above not
to allow the Applicant, a medicaldoctor and
attorney of Applicant'schoice, reasonable access to thesaid
to allow the said TS'EPHE toreceive food parcels,
toiletriesand other similar necessities,clothes to change
and readingmaterial from the Applicant.
to desist from assaulting or unlawfullyinterrogating
the said TS'EPHE.
3. The Respondents shall not be ordered to pay
costs of this Application jointly and severally.
4. The Applicant shall not be granted such further
oralternative relief as the court may deem fit.
B. That paragraph 2 above operate as an interim
interdict having immediate effect.
It is common cause that the applicants are members of
the Royal Lesotho Defence Force. They were arrested on the 27th
and detained in the maximum security section of the
Maseru . Central Prison.
In the case of Joseph Tsolo Phiri the founding affidavit
was signed and filed by his wife, Gladys 'Mamookho Phiri. She avers
as a result of the information she received she proceeded to the
headquarters of the Royal Lesotho Defence Force (R.L.D.F.) on the
29th November, 1990. She was informed of the
detention of her husband and that if she wanted to see
him she had to apply for a permit for that purpose from the R.L.D.F.
30th November, 1990 she was allowed to see her husband. She
saw him at the Maseru Central Prison. She avers that he had wounds on
the head and forehead as well as on his wrists and his feet were
swollen. He spoke with great difficulty and seemed to be in
The deponent avers that she requested the officers
present to allow her husband's doctor to visit him particularly as he
from stomach ulcers and did not have any medication with
him. She was told that only the prison doctor was permitted to see
When she again saw her husband on the 1st December, 1990
his condition had not improved. On the 2nd and 3rd December, 1990 she
not allowed to see her husband on the ground that he was being
interrogated and she would be allowed to see him on the following
Sunday. She immediately formed the impression that she was denied
access to her husband because officers of the 1st respondent required
an opportunity to cause him even greater physical harm without fear
of detection. It was as a result of fear that more physical harm
going to be done to her husband that she launched the present
In the case of Tseliso Ts'ephe the founding affidavit is
signed and filed by his father, Tseliso Ts'ephe. He avers that as a
of the information he had received concerning his son, he went
to the maximum security wing of the Maseru Central Prison on the 2nd
and 3rd December, 1990. Although the presence of his son was
acknowledged by the officers he was not allowed to see him. He was
that he could see him on the
9th December, 1990. As a result of the information he
had received from Mrs. Phiri he had reasonable apprehension that his
suffer great physical harm unless this Court intervened.
The opposing affidavit on behalf of the 1st respondent
has been signed and filed by Colonel Tseliso Metsing. He is a member
R.L.D.F. and since February, 1990 he has been in the
day-to-day command of the R.L.D.F. as Chief of Staff of the Forces.
that the detainees are well cared for and kept in custody in
extremely humane conditions. He emphatically denies the insinuation
and all accompanying allegations or suggestions that the
detainees face or have faced any peril to their lives. The fear of
the applicants is unreasonable and unfounded. The detainees were
arrested on the 28th November, 1990 upon his instructions and orders
because the Command of the Force had or has credible information that
the detainees along with some members of R.L.D.F. in September,
at Maseru at the office of the Labour Construction Unit, a department
of the Ministry of Works committed theft and robbery involving
M511,768 the property of the Government of Lesotho. He alleges that
the detainees have contravened the provision of Part V of the
Paramilitary Force Act No.13 of 1980 (the Act).
Colonel Metsing further avers that all the information
he received regarding the commission of the above offences by the
was brought to the attention and knowledge of the
1st respondent by him. On the 28th November, 1990 the
Commander ordered him to arrest the detainees for interrogation in
with the abovementioned offences. As soon as the
investigations are completed the detainees will be court-mrtiaHGd as
the Act. He avers that he attaches to his affidavit an
order in terms of section 162 of the Act made by the Commander of the
Consequently the detention of the detainees is lawful in
terms of the law.
There are some other affidavits by the officers of the
1st respondent to the effect that the detainees were not assaulted at
they were in detention. Another affidavit is to the
effect that the detainees were told the reasons for their arrest at
time they were arrested.
On the 6th December, 1990 the detainers were produced
before the Court in terms of the court Order. I had the opportunity
to see them.
Joseph Tsolo Phiri had wounds on both wrists and was
limping. I did not ask him why he was limping. Ts'ephe Ts'ephe had a
scar on left shoulder I find it strange that in his opposing
affidavit Mayor Matsime does not explain to the Court the
under which the detainees sustained those injuries
which I saw and which are confirmed by Dr. Grobelaar of Makoanyane
in his report annexed to the opposing affidavits as
Annexure "A". His failure to explain the circumstances
the detainees sustained the injuries is an indication
that he is not being honest to the Court. I am satisfied that the
were assaulted and were in distress before the present
applications were brought to Court. They are, therefore, entitled to
The respondents oppose the release of the detainees on
the ground that the detention is lawful in terms of the law. On the
other handMr. Sello submitted that the detention is unlawful
on the ground that the discretion to detain a soldier under section
162 of the Act is vested
in the Commander and that he is the only
person who can exercise that discretion. He submitted that the
affidavit of Colonel Metsing,
made on behalf of the 1st respondent,
is hearsay. It is the 1st respondent who has to sign and file an
affidavit and aver that he
is of the opinion that the detainees have
committed the alleged offences and that he is of the opinion that in
his opinion it is
expedient for the protection and preservation of
national security to arrest and detain them.
I agree with Mr. Sello that the ideal situation would be
that the Commander himself must make an affidavit to explain what
him to cause the arrest of a soldier in terms of section 162
of the Act. However, failure by the Commander to make an affidavit
does not necessarily mean that his detention order will be declared
unlawful if there is satisfactory evidence that before he signed
order there was information given to him that the soldiers in
question were suspected of having committed an offence described
Part V of the Act.
It seems to me that in the present case the 1st
respondent formed the opinion that the detainees had committed the
and that they were to be arrested and detained
after some information had been placed before him by Colonel Metsing.
affidavit Colonel Metsing avers that all the information
he had received concerning the detainees' involvement in the robbery
theft was brought to the attention and knowledge of the 1st
respondent before he made the order of detention. The 1st respondent
cannot be accused of having formed an opinion without any information
being placed before him; nor can he be accused of having formed
opinion in bad faith. It has not been alleged that the detention
order was made with an indirect and improper motive and was
consequently not bona fide in terms of the empowering section.
As it has happened in some cases it may subsequently be found that
the information upon which
the 1st respondent acted was incorrect,
that would not mean that the order was wrongful or unlawful right
from the beginning unless
it can be shown that he acted without any
information at all being placed before him (Stanton v. Minister of
Justice and others, 1960 (3) S.A. 353 (T.P.D.); Mabe v.
Minister for Native Affairs, 1958 (2) S.A. 506 (T.P.D.).
Mr. Sello submitted that the 1st respondent has
not shown the Court how an ordinary robbery and theft can affect or
undermine public safety
or endanger state security. In his affidavit
Colonel Metsing avers that 'amid this information, there is room for
the purpose of the commission of these offences was
to generate funds in order to subvert the army, by way of staging a
If the purpose of the robbery and theft was to generate
funds for the purpose stated above it becomes clear how public safety
state security were to be undermined by what appears to be an
ordinary robbery and theft.
In the result order A.1 of the Rule Nisi is discharged.
Order A.2 is confirmed. The respondents are ordered to pay applicant
jointly and severally, one paying the others to be absolved.
J.L. KHEOLA JUDGE
17th December, 1990.
For Applicants - Mr. Sello For Respondents -
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