CIV/A/9/90

IN THE HIGH
COURT OF LESOTHO

In the matter between:

MOKHAHLA GEORGE 1ST APPLICANT

THABO NOHA 2ND APPLICANT

MOLETSANE MOTOLI 3RD APPLICANT

LEBAMANG GEORGE 4TH APPLICANT

vs
ZAKARIA MOKOMA RESPONDENT

Before the Hon Chief Justice B.P. Cullinan

For the Applicants : Mr M. Ngakane The Respondent in person

JUDGMENT

The respondent ("the plaintiff") sued the four applellants in the
Mants'onyane Local Court, in respect of the arrest and alleged assaults
of his
son, then aged 17 years. The appellants were referred to as "respondents" in the
Local Court, but in view of the multiplicity
of appeals it is best to refer to
them as "defendants".

Very briefly, the defendants suspected the plaintiff's son Mputana
Mokoena & another, Keketso Sekola, then aged 18 years of having
stolen the
first defendants 5 sheep, arrested them & took them to the police station.
It is alleged that the defendants assaulted
the two youths before handing them
over to the police: The youths were subsequently charged with theft of

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the sheep before a Magistrate's Court, but were acquitted. The
plaintiff's cause of action in the Local Court then read as follows:

"Dispute : M300.00 being a joint compensation for having assaulted
Mputana Mokoena (sic) after arresting him and injuring him alleging that
he had
stolen their sheep..."

The Court President of the Local
Court, in a carefully reasoned judgment, dismissed the plaintiffs claim ordering
each party to pay
his own costs. On appeal to the Central Court at Thaba-Tseka,
that Court reversed the Local Court decision, granting judgment for
the
plaintiff, ordering the return of the plaintiff's security deposit, but making
no order as to costs. The judgment of the Central
Court was apparently based
solely on the observation that,

"there was nothing which showed that Mokhahla George and his associates did
report to their Chief or to the police that they have
lost their sheep, beside
that they had just attacked plaintiff's cattle
post".

Not surprisingly, the learned Judicial
Commissioner on appeal held

"that that was not a good reason for concluding that therefore by such
incasion they have therefore
assaulted

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Mputana".

The learned Judicial Commissioner,
however, held that there was nonetheless "sufficient evidence that Mputana was
assaulted by the
appellants when they arrested him". In the result he dismissed
the appeal against judgment, but reduced the guantum of damages to
M150, to be
paid jointly & severally by the defendants, and granting costs to the
plaintiff. It is against that decision that
the defendants now appeal.

The plaintiff's son gave evidence in the Local Court. He was
cross-examined in turn by each of the defendants. He gave detailed evidence
of
the nature of the assault upon him and his colleagues, that is, in cross
examination. In examination in Chief he gave no evidence
whatever of assault,
other than to say that,

"the matter (case) is for arrest and assault. We were caused to carry a ten
of (sheep's) suet."

In cross-examination he testified
that when delivered to the police, the police had asked him whether they had
been assaulted: he
informed them that they had in fact been assaulted :
nonetheless the police did not request them to remove their blankets, so as
to
observe their inquiries. Subsequently, however, he testified that

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"I didn't tell the policeman you had assaulted me because I was afraid of
them. I only said it out on my way back from police station
(some two weeks
later) that I had been assaulted".

Keketso Sekola again
gave no evidence of assault, as such,
in chief, other than to say
that they had been "fastened" (tied)
at the cattle - post and that
they had been "caused to carry suet
and fat." When it came to
cross-examination, he testified that
on arrival at the police
station, '

"We told the police that we have been assaulted myself
and
Mputana. Police did nothing "

Again,
despite Mputana's earlier evidence that the police had not examined them,
Keketso in cross-examination testified that,

"Mputana informed the police that you had assaulted him when he arrived at
the police station. Police found that he had some wounds.
Police did nothing in
relation to the injuries he sustained."

and again

"Mputana was examined when he arrived that (sic) you had assaulted him.
There were some bruises caused by a
sjambok

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and a slick, the police saw them. I don't know what the police did in regard
of this criminal act you have committed"

and further on again,

" you brought Mputana to
Marakabei police station.

Mputana showed the police that you had assaulted
him."

It will be seen therefore that the evidence of the
plaintiff's witnesses as to assault was contradictory. Furthermore the
defendants'
evidence that they had not assaulted either youth was consistent. It
was corroborated by that of a police officer who testified that
when the youths
were brought to the police station, they did not report any assault upon them
and that he had first heard of such
allegation from the plaintiff
himself.

Further again, the plaintiff testified that after his son was released
from custody, after some two weeks, and before the criminal
trial took place, he
had him examined by a doctor. He tendered his son's medical book in evidence. A
doctor's report indicates, that
the plaintiff's son bore some injuries. The
medical book, however reveals that the plaintiff's son was examined by a doctor
long
after the criminal trial (when a complaint of assault by the police could
have been laid before the Magistrate) and indeed some six
months after the
alleged

-6-assault.

The learned Judicial Commissioner did not observe the contradictions in
the evidence for the plaintiff. Furthermore, he observed that
the particular
police officer, Mafathe, was not present when the suspects were brought to the
police station: but that was not the
evidence of the police officer or the
defendants. More importantly, the learned Judicial Commissioner observed that
the plaintiff's
son was examined on a date less than two weeks after the arrest
and alleged assault: but that was a misdirections: the report indicates,
as I
have said, that examination took place some six months later. Had the learned
Judicial Commissioner considered all of those
aspects I cannot see that he could
have held that the plaintiff had on a balance of probabilities made out his
case, that is, as
to the allegation of assault.

The question arises, however, as to the exact nature of the plaintiff's
claim. The claim, as earlier reproduced, discloses in my view,
not one but two
separate claims; the plaintiff complains in effect not alone of assault, but
also of wrongful arrest. This becomes
clearer from the plaintiff's opening
address to the Local Court, namely,

"I claim M300.00 jointly from (defendants) being compensation for arresting
and assaulting my child Mputana Mokoena and took him to
Marakabei police post
alleging that

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he had stolen their sheep and the trial court found them not guilty and
discharged" (Italics added).

When it came to judgment in
the Local Court, the learned President observed that the plaintiff claimed
"compensation of M300 jointly
from the respondents for having assaulted and
causing plaintiff's son to carry suet."

Further on the learned President observed that,

"It is clear that this case is of two different types, one was an assault
and the other was for carrying suet and a tin of fat yet
the accused was not
guilty".

The carrying of the suet, in my view,
constituted a compulsion, effected under the custody of the defendants, the gist
of the complaint
being the custody itself. This is clear from the plaintiff's
opening address where he submitted, in effect, that his son having been
acquitted, the arrest was unlawful. The learned President quite correctly
observed that an acquittal did not automatically entitle
an accused person to
compensation. Earlier, however, having summarised the evidence in the case, he
had observed:

"(The plaintiff's son) was liable to carry (suet and fat) since it was
recognized as stolen property and was unable to give an explanation
how the
property was found in his possession, and

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for these reasons he was considered as a thief or having accepted a
stolen property yet he knew quite well it was a stolen property."

Neither the learned Central Court President, nor the learned Judicial
Commissioner, referred to that aspect in their judgments. The
question arises
whether the finding of the learned Local Court President in the matter accorded
with the evidence. While the plaintiff's
claim was instituted in the Local
Court, the actions of the defendants in arresting the plaintiff's son were
covered by the statutory
law, namely the provisions of Part V (A) of the
Criminal Procedure and Evidence Act, 1981 and in particular those of the amnibus
section 30, which reads:

"30. Any private person, may without warrant arrest any other person upon
reasonable suspicion that the other person has committed
any of the offences
specified in Part II of the first schedule".

Two of the offences so scheduled are "Theft, either at common law or as
defined by any statute" and "Receiving any stolen goods or
property knowing the
same to have been stolen." Part II of the First schedule also includes "offences
the punishment whereof may
be a period of imprisonment exceeding 6 months,
without the option of a fine." It will be seen, therefore, that the defendants
had
the power of arrest, "upon

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reasonable suspicion." If there was, objectively, no basis for
reasonable suspicion, then their action were unlawful. In this respect, I cannot
but see
that, whether the plaintiff's claim was instituted in the Local Court or
elsewhere, and whether the claim was founded in cutomary
law or the common law,
the same standard of reasonable suspicion must apply. Again, I cannot but see
that the presumption of innocence
applied also in a Local Court, as under
section of the Central and Local Courts Proclamation No.62 of 1938, to hold
otherwise would
be inconsistent with the common law and indeed "repugnant to
justice," That being the case, as with the common law, once the plaintiff
proved
the arrest, which was admitted, the onus surely feel upon the defendants to
establish reasonable suspicion.

In this respect, the arrest took place at the cattle - post of the
plaintiff, where his son was herding. The latter testified that
the defendants
found him in possession of suet. The first defendant alleged that the suet was
that of one of his missing sheep. The
plaintiff's son replied that the suet had
come from a slaughtered sheep belonging to his father. He testified
that,

"You (first defendant) didn't ask me to prove the ownership of the sheep.
You said I had referred to tell the truth

you then fastered and assaulted us I tried to

convince you by producing a carcass of the sheep to
prove

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that it was its suet. You then caused me to carry the
suet."

Keketso Sekola, when cross - examined by the
first defendant, testified:

"You arrested me even though I proved to you by a carcass of Zakaria's (the
plaintiff's) sheep".

When it came to the defendants
evidence the first defendant in cross-examination testified:

"My sheep bear marks. They were marked Leripa on the left

ear. This mark wasn't there in the suet I did
burden

your child with suet since he didn’t
convince me that a sheep belongs to you. I would be convinced by way of placing
him before
the Court of Laws. The decision of the Court discharged him" (Italics
added)

The second defendant merely testified that,

"We had caused your son to carry suet since we thought it was for respondent
No.1's sheep "(Italics added)"

The third defendant testified

"Maokhahla showed me suet before we could arrest them;
suet

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was not marked. I was convinced when he (first defendant) cold me that suet
was for his sheep" (Italics added)

The fourth defendant
however, in cross-examination, introduced an aspect not mentioned by the other
defendants. It was his evidence
that

"Your son hidden the suet which proved that it wasn't your sheep's
suet."

Nowhere did the other defendants mention that
aspect. If it were the case that the suet or carcass was hidden as such, I
imagine that
the other defendants, and particularly the first defendant, would
not have hesitated to mention it, and to make capital thereof.
The fourth
defendants evidence on the point was surely unreliable. It was the plaintiff's
evidence that the suet was from one of
his sheep. The defendants did not dispute
the evidence of the plaintiff's witnesses that they had produced a s3heep's
carcass to
them. Indeed, the first defendant's evidence seems to confirm this
aspect. I pause here to observe that a slaughtered carcass might
well be covered
rather than hidden, as such, and the fourth defendant might well have made
capital of this aspect. In any event,
nowhere did any of he defendants testify
Chat the carcass produced to them bore the first defendant's identifying
mark.

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As I see it, the first defendants own evidence indicates his state of
mind. Clearly he was not satisfied that the sheep's carcass
belonged to him, but
nonetheless considered that it was for the plaintiff's son to convince him that
the carcass belonged to his
father. His evidence thereafter indicates that it
was for the Court to decide whose carcass it was. The subsequent acquittal
however
serves but to confirm the situation at the cattle - post: there simply
was no satisfactory evidence whatever against the two youths
from the very
beginning. In brief, there was nothing on which reasonable suspicion could be
based that is, by any of the four defendants.

None of the three courts below examined the aspects of the evidence
outlined above. Had they done so I am satisfied that they would
inevitably have
found that the arrest of the plaintiff's son was wrongful and that his father
was entitled to damages in respect
thereof.

The appeal succeeds therefore to the extent that the decision of the
Local Court in dismissing the plaintiff's claim for damages for
assault is
restored and such claim accordingly stands dismissed. However, the decision of
all three courts below in effect, in dismissing
the plaintiff's claim for
damages for wrongful arrest is set aside and I give judgment accordingly to the
plaintiff in respect of
that claim, that is against the four defendants jointly
and severally.

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The learned Judicial Commissioner reduced the award of damages to M150.
He gave no reasons therefor. I assume that he did so, as in
his view the
plaintiff had succeeded in proving only half of his claim. The same situation
still applies and I do not propose therefore
to alter the quantum of damages.
Accordingly give judgment to the plaintiff in the amount of M150. I also grant
costs in this Court
to the plaintiff.

Dated this 29th Day of March,
1995.

B.P.
CULLINAN
(B.P. CULLINAN)
CHIEF JUSTICE