STATED
CASE : CRI/1/2007

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:

REX
APPLICANT

MAKOTOKO
LEROTHOLI

&

4 OTHERS
RESPONDENT

JUDGMENT

Delivered
by the Honourable Chief Justice M.L. Lehohla on 19th November, 2007

The
learned Chief Magistrate Central referred the above matter to the
High Court to determine whether or not at the remanding stage
the
Magistrate's Court can lawfully entertain the question of the
lawfulness or otherwise relating to the appearance of suspects
before
it.

As the
learned Chief Magistrate felt he was sailing unchartered waters in
that there was no case law to serve as precedent for his
guidance in
regard to the matter of which he was seized at the time he
accordingly referred it to this Court for ascertainment
of the law in
the issue he referred to as "seemingly a lacuna".

In the
process he chose neither to remand the suspects in custody nor on
bail but instead ordered them to remain in what he called
the
"protective custody" of the police pending determination of
the issue by the High Court.

2

In part
the determination of the issue has been effected by the branch of the
High Court to which the matter was referred in that
the Court once
having established that the suspects had before being brought to the
Magistrate's Court for remand pronounced their
continued detention
unlawful.

Needless
to say for purposes of the exercise I am seized with, it is important
to note that it is common cause that the suspects
were detained
beyond the 48 hours statutory limitation. This limitation is also
buttressed by the Constitution itself. See Section
32(1) of the CP&E
Act 7 of 1981 and Section 6(3) b of the 1993 Constitution.

What
appears to have been a dilemma with which the learned Magistrate was
faced was the wisdom of

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remanding
suspects who were under unlawful detention on one hand and
alternatively letting them wait unremanded but still under
detention
pending resolution of their matter on appearance before a court of
competent jurisdiction on the other hand.

Perhaps
resort to application of provision of Section 6(3)(b) would prove
fruitful. The section reads:

"Any person who is arrested or detained

1. ...............

   
   

2. upon
   reasonable suspicion of his having committed, or being about to
   commit, a criminal offence,

   
   

and who is not released, shall be brought before a Court as soon as
is reasonably practicable and where he is not brought before
a Court
within forty-eight hours of his arrest or from the commencement of
his detention, the burden of proving that he has been
brought before
a Court as soon as is reasonably practicable shall rest

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upon any person alleging that the provisions of this subsection have
been complied with".

In
buttressing the application of the provision set out above Steyn P in
Bolofo & 2 Others vs Director of Public Prosecutions
1995-99 LAC
251 at 247-8 clarified the position as follows:-

The Constitution has not been enacted merely for purposes of
promoting the Kingdom as a country that expresses a commitment to

acceptable international norms and standards of behaviour. On the
contrary, it is a solemn and effective covenant regulating the

relationship between the Crown and its citizen".

For
purposes of capturing the useful background against which the learned
President illustrated the

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position
further I should cite his words in extenso as follows:

"These provisions can be meaningful if all those involved in the
administration of justice perform their duties in a manner
consistent
with the ethos and values that underpin them. This obligation rests
on those who are part of the cohesive unit that
administers justice.
Those involved include the following: The police officer that
exercises the power of arrest and first detention;
the judicial
officer who is seized with the responsibility to decree the continued
detention of the accused or his release on bail
and terms of and
conditions upon which this is to occur and regulates the conduct of
trial; the Director of Public Prosecutions
who determines whether and
when a prosecution should be instituted and upon which charges and
who exercises a discretion as to
whether to oppose bail or not; the
High Court and this Court as the final arbiters of the fate of an
accused and

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ultimately the prison authorities who are obliged to see to the
protection of the public by ensuring the secure incarceration of
the
committed prisoner and to see to his possible rehabilitation. Even
the social services that facilitate the reintegration of
the released
prisoner into society is part of such a unit...."

The
instant case is an eye-catching object to which the words above have
been so aptly addressed.

Understood
in their proper context the principles distilled from the words
challenge a judicial officer reviewing the matter that
came before
the Chief Magistrate Central to consider whether the Learned
Magistrate properly exercised his discretion in and by
referring the
matter to the High Court.

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I have
noted with satisfaction that the learned Magistrate censured the
unlawfulness of the detention following the arrest. One
cannot help
emphathising with him though that, confronted with dealing with
suspects facing a serious charge of treason he thought
rather than do
the right thing and release the suspects on the score of the
unlawfulness of their detention he should and did decide
to pass the
buck. It is never a wise thing to do that my empathies aside.

Section
4(2) of the Subordinate Courts Order brings sufficient grist to the
mill in this regard as follows:

"Subject to subsection 3 Magistrates shall be entitled to
exercise powers and jurisdiction of such class as are conferred
by or
under this Order, and such additional jurisdiction as may be
conferred on them specifically under any other law". (my

emphasis).

8

Section
59 of the Subordinate Courts Order above states:

"The Court shall have jurisdiction over all offences except
treason, murder, and sedition".

Notwithstanding
the cited phrase loc. cit Section 32 of our CP 8b E above entrusts a
Magistrate Court with remanding powers in respect
of all criminal
cases. Thus regardless of its jurisdictional limitations in some such
offences as set out above the Magistrate
Court is at large to remand
suspects charged with even as serious an offence as High Treason. But
if there are legal impediments
such as unlawful detention that Court
is equipped with sufficient jurisdiction to avoid saying ditto to
unlawfulness.

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It thus
goes without saying that the Chief Magistrate had, in the light of
the above exposition, power to remand the five accused
who appeared
before him. Section 32 of the CP & E above is in point.

Startlingly
though the Learned Magistrate states in his judgment that:

"A remanding Court is not just a post office or conduit pipe
through which matters beyond its jurisdiction

are simply transmitted" (Emphasis supplied.) See page 19 of the
Magistrates Record. The above remark is startlingly inapposite
regard
being had to the fact that previously the Learned Magistrate had
correctly stated that the Magistrate's Court was entrusted
with the
process of remanding regardless of its

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jurisdictional limitations relating to some of the offences."

It is
therefore unquestionable that the learned Chief Magistrate had
statutory authority to remand the five accused. This being
thus
settled it behoves me to proceed to the next aspect of the matter,
i.e. whether a remanding Court had the power to remand
suspects who
were under unlawful detention. The corollary to this questions can
lend itself to a ready solution if asked in the
form, namely whether
a remanding court could inquire into the lawfulness or otherwise of
the accused's detention at the remanding
stage. In other words is the
remanding Court entitled to inquire if the suspects appearing before
it were properly brought before
it to be read the charge and finally
remanded.

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I should
not be tardy to unhesitantly indicate that a Court of law including a
remanding court in particular should always be astute
to secure means
by which it is able in exercising its functions, to ensure that the
citizen's liberty is protected not only from
actual but more
importantly from potential inroads emanating from wanton acts of the
Executive's agents. This is more so necessary
when one has regard to
the fact that the state wields far more power than can be prevailed
against with relative ease by an individual
whose rights happen to be
unlawfully trampled upon, be it unwittingly or on purpose. In this
regard the Court is placed in the
centre stage as the protector of
the citizen's rights against abuse. It thus will be called upon to
protect the citizen against
unlawful action by the agents of the
Executive or its branches.

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The words
of Peete J in CRI/APN/372/2007 Tantu

Pakela vs
Director of Public Prosecutions

(unreported)
at p 3 merit repetition in this regard:

"The Court must always strike a balance between the proper
administration of justice and the liberty of an individual".

In fact
Steyn JA as he then was aptly rams the point home in Theko vs
Commissioner of Police & Others

LAC
1990-94 : 239 at 243 when he says:-

There is a clear and onerous duty on those exercising
responsibilities to exercise them with acute awareness of their
impact on
the rights of the citizen affected. The Court will
anxiously scrutinize the exercise of these administrative powers to
ensure that
they are not abused and that the rights of the citizen
are protected".

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It is
stimulating to observe that the learned Chief Magistrate was alive to
the salutary principles at play-when he properly remarked:

".......the Remanding Court is qualified to consider declining
to remand a person where Section 6(3)(b) Constitutional rights
of the
suspect to be brought before Court within forty-eight hours, have
been violated ........ I consequently refuse to remand
in custody.
Otherwise the administration of justice would be landed into
disrepute. The Courts would risk being seen to be associating

themselves with violations of the Constitution......"

The above
statement by the Learned Magistrate should have served as a
sufficient note upon the sounding of which the matter ought
properly
to have been brought

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to a
close before him. It was therefore not necessary that after he had
made a proper determination that the suspects were not lawfully

before his court, he should nonetheless refer the matter to the High
Court. He was at large and within proper exercise of his powers
to
release the suspects there and then and without any further ado.

This
brings me to a guarded but nonetheless unirrelevant speculation that
perhaps the Learned Chief Magistrate was motivated by
apprehension of
dealing with a matter of such seriousness as one involving a charge
of High Treason preferred against the suspects,
and felt that rather
than do the right thing he should squirm and unfortunately shy at
that unpleasant responsibility.

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It seems
therefore the Learned Magistrate was overly preoccupied with not only
balancing the interests of the individuals and proper
administration
of justice but also considering the question of state security - a
weighty affair at all hazards.

But
consideration of Bekker et al in Criminal Procedure Handbook should
serve to show that the source of the learned Chief Magistrate's

apprehension was what one could call an object of baseless fear as
aptly put by Bekker in the following manner:

"The fact that an arrest or detention is unlawful will obviously
not affect the liability of an accused in so far as the offence

concerned in connection with which he is detained (or has been
arrested illegally)".

16

It
follows from the above test that after the suspects were released,
that would not in the least vitiate their liability in respect
of the
charges preferred against them. What this means is that if the Chief
Magistrate had ordered the release of the suspects
that would not be
a bar to further institution of similar charges against the suspects.
The remanding Court would be entitled to
remand the suspects either
in custody or release them on bail (if bailable before it) on such
conditions as would be deemed appropriate
in the circumstances
provided this one more time around the prosecution came to court with
clean hands. If not, the Court would
be at large to grasp the nettle
and release suspects on the score of unlawfulness that has tainted
their further detention.

17

The
practice advocated above is no mere judicial sleight of hand. A
parallel drawn in a different context may help buttress the

contention predicating the view expressed. Thus Seholoholo vs R LAC
1985-1989 is the authority in point. Mr. Seholoholo had been

convicted of theft and sentenced to 12 months' imprisonment in the
Magistrate's Court. In the first appeal to the High Court the

conviction was confirmed but the 12 months sentence set aside and
replaced by that of 2 years regard being had to the seriousness
of
the offence when compared with the leniency of the sentence imposed
by the Subordinate Court.

On second
appeal to the Court of Appeal the contention was viewed with favour
by the Court of Appeal that the High Court had erred
in enhancing the
12 month sentence by a further 1 year without having

18

warned
the Appellant to come prepared to address the Court why in the event
the conviction was confirmed the sentence should not
be enhanced.

The Court
of Appeal thus struck off the additional 1 year prison term but
having confirmed the conviction gave the Appellant an
opportunity to
raise argument why sentence imposed by the Subordinate Court should
not be enhanced.

After
dismissing those arguments the Court replaced the tarnished 1 year
sentence imposed by the High Court with an untainted 1
year sentence
imposed by the Court of Appeal itself. In the end you may ask
yourself what is the difference between the effect
of the total sum
of a 2 year term preferred by the High Court as against the total sum
of 2 year term preferred by

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the Court
of Appeal. But truly speaking there is a difference. One followed
illegality the other lawfulness!

Thus it
would serve the interests of justice in a more meaningful and truly
effective and well-balanced manner if the Remanding
Court eschewed
not only being seen as just a rubber stamp to illegal acts committed
against individual citizens, but being seen
as acting regardless of
the latter's moral blameworthiness and in a manner that bespeaks
connivance at their alleged acts.

In the
celebrated phrase of Lord Atkin in Eshugbayi Eleko vs Government of
Nigeria 1931 AC 662 at 670 it is informatively stated:

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"In accordance with British jurisprudence no member of the
executive can interfere with the liberty or property of a British

subject except on the condition that he can support the legality of
his action before a court of justice. And it is the tradition
of
British justice that judges should not shrink from deciding such
issues in the face of the executive", (emphasis mine).

What
pertains to a court of justice in the British tradition should be no
less so with regard to the Kingdom of Lesotho.

In the
end I have come to the conclusion that the Learned Chief Magistrate
failed to exercise his discretion properly or judicially
when he
referred the matter on tapis to the High Court. It should therefore
follow as a matter of course that if the Remanding
Court is empowered
to lawfully curtail the liberty of

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individuals
by process of remand in custody, likewise where circumstances
warrant, it has authority to unconditionally release suspects
should
there be detected a fatal defect in the attempt to set the law in
motion. Remanding Courts hold important constitutional
safeguards
even where some of those Courts operate under deliberately imposed
jurisdictional limitations. It is therefore perfectly
legitimate for
a Remanding Court regardless of jurisdictional limitations to
entertain the question of lawfulness or otherwise
of the suspects'
detention at the remanding stage.

M.L.
Lehohla

Chief
Justice

Judgment
noted by: Miss Mofilikoane

Mr. Mothibeli

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