HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTION First Respondent
GENERAL Second Respondent
MINISTER OF FOREIGN AFFAIRS Third Respondent
RESIDENT MAGISTRATE (MR
NTHUNYA) Fifth Respondent
by the Honourable Mr Justice T Monapathi on 31st day of May, 2006.
Applicant objects to his arrest. The arrest was made to facilitate
extradition to the Republic of South Africa. The facts will
as submitted that it is only a magistrate of the court of Lesotho who
can issue a warrant for arrest of an "accused"
another country, in order to facilitate extradition. This is borne
out by what is provided for in section 8 of the Fugitive
Act 38 of l967.
the proper authority to issue the warrant in these proceedings I
found no reason to accept anything other than that it was
to be the
Fifth Respondent and not the Magistrate of Randburg Republic of South
Africa. I should therefore look at the circumstances
the Fifth Respondent other than allegedly endorsing the warrant from
Randburg, appears not to have issued any warrant
at all. Firstly she
was given the opportunity to file an affidavit (as it can be
presumed) as a party who has been cited. She did
I noted that on this warrant from Randburg the learned Magistrate has
made the following statement "endorsed for
was signed on to it 30th March, 2006. Onto this statement Fifth
Respondent had affixed her office rubber stamp
to authenticate the
same. In my view this does not help matters as it will be unraveled
regrettably there is no formal order nor is there a file, nor are
there any proceedings or writings of any kind evidencing
application in which, in the end, Fifth Respondent would issue a
warrant for arrest of the Accused. Nowhere is such application
form apparently motivated as the Rules of Court prescribe.
I found it hard to accept that this statement on page 4 of the Chief
Investigating Officer Thibeli's affidavit endorsed
granted" dated 30th March, 2006 evidences that such an
application was made. That is so even if an appearance
Magistrate could have been made by Mr Thibeli. I can not accept
writing constituted a valid warrant for arrest of this Accused.
Without insisting on strict formalism of any kind, the
the Fifth Respondent as a judicial officer tells against her having
issued any warrant of arrest except endorsing
the said warrant from
Randburg. This leads me to conclude that valid a warrant could not
have been issued.
above be regarded as strict construction, of what is to be expected
of a warrant, it is justified by the circumstances reigning
proceedings. This is exacerbated by the Magistrate herself in not
doing a natural thing she should have done i.e to place
the facts as known to her and the nature of the action she took in
the light of a challenge of this nature where the
liberty of a
subject is seriously at stake. It is serious if a citizen of this
country is to be taken out its jurisdiction.
therefore that a warrant from a requesting state seemed to have been
used as a warrant of arrest. This was wrong.
from the fact that these was no lawful warrant for the arrest of
Applicant in this matter and his subsequent detention, the
of section 8 (3) of the Fugitive Offenders Act were completely
ignored and the actions taken were thus ultra vires the
this Act. The section reads:
"Where a provisional warrant is issued under this section, the
authority by whom it is issued shall forthwith give notice
Minister and transmit to him the information and evidence, or
certified copies of the information and evidence, upon which
issued; and the Minister may in any case, and shall if he decides not
to issue an authority to proceed in respect of the
person to whom the
warrant relates, by order cancel the warrant and, it that person has
been arrested thereunder, discharge him
the other ground upon which the detention of the Accused should be
seen as unlawful on the factual plane.
back again to the circumstances of the issue of this warrant, the
last sub-paragraph of paragraph 8 of Mr Thibeli affidavit
states the factual position of what transpired. I quote:
"The learned Chief Magistrate Nthunya after reading the papers
presented before her granted the provisional warrant of arrest.
granting the warrant she then endorsed for execution the warrant
which had been issued by the Randburg Magistrate. I wish
aver that he was not arrested by virtue of a South African warrant,
but rather by virtue of a provisional warrant of
arrest, issued by
the Chief Magistrate Nthunya." (My emphasis).
the contradiction the facts speaks for themselves. It shows
therefore, even more strongly, why the Fifth Respondent should
Minister of Foreign Affairs has to be involved in either way is
clear. Firstly with regard to authority to proceed in terms
section 7(1) of the Actor with regard to the circumstances spelled
out in section 8(3) (ipso facto referral) is abundantly clear.
not hear the Respondents to be saying that it had been their
intention to do any of this. In which event (had they desired
comply) I would have judged that the Applicant could have jumped gun.
above circumstances therefore, the invalidity of the proceedings,
even besides the invalidity of the warrant, is doubly demonstrated.
It would have been otherwise if the Respondents clearly expressed the
intention to give notice to the Minister and somehow (if
should have been spelled out in Mr Thibeli's affidavit Or one wishes
ideally it had been expressed in the affidavit of
Respondent or in a formal court order or proceedings. All these,
unfortunately, are absent.
conceded that this proceedings are not in the nature of a bail or
Criminal proceedings, one is bound to invoke the provisions
article 12 of the Treaty between the Government of Lesotho and the
Government of Republic of South Africa (the treaty) and the
sections 7 and 8 of the Fugitive Offenders Act the interpretation of
which Counsel agreed was relevant
conscious of their nature I agreed therefore that the proceedings had
nothing to do with the Accused's defence whether it
was good or bad
or arguable and the aspect of the Accused being a flight risk. All
these have no bearing on these proceedings except
that the court has
to determine whether the Accused is extraditable or the crime alleged
is extraditable and the need to comply
with section 2(c) (d) and (e)
of the Treaty.
above circumstances I have no option but to declare that the Accused
cannot be arrested in the present circumstances. The
therefore declared unlawful. And the
detention ought to be discontinued.
application succeeds with costs.
Applicant : Mr. Teele
Respondents: Mr. Putsoane
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law