IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

vs

1.
THAPELO MATATA

2.
RETHABILE LEEPITSI

3.
TLELIMA MAKHAKHE

4.
REFUOEHAPE SERA

5. HOLOMO
KONE

Review
Case No. 186/2007 CR. NO. 177/07

Review
Order No. 10/2007 In Mokhotlong district

ORDER ON
REVIEW

This case
has been referred to the High Court by Mokhotlong Magistrate with a
request that the Court review the proceedings and
give directions as
to what to do with the accused persons.

It is
common cause that, on 26th September 2007, the accused persons were
brought before the Subordinate court of Mokhotlong for
remand on a
charge of Armed Robbery. The body of the charge sheet read as
follows:

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"The said accused are charged with the crime of armed robbery,
in that upon or about the 17th day of September 2007 and at
or near
Zhong Sing Supermarket Salang, in the district of Mokhotlong, the
said accused, one or the other, or all of them did unlawfully
assault
one Jin Xian and by intentionally using force and violence to induce
submission by the said Jin did take and steal from
him certain
property, to wit: Ml30,000, Three (3) firearm, two 7.65 auto pistol
and a 9MM auto pistol, five (5) cell phones, American
dollars
amounting to 800.00, twelve (12) blankets, ten (10) pairs of shoes,
air time worth M24,000, 24x500ml maluti water, two
touch cases, Isuzu
bakkie registration AE889, 50Lt diesel worth M380.00, simcard (10),
craven A cigarettes (19 x 20), battery,
his property or in his lawful
possession and did rob him of the same."

Mr.
Khauoe, the legal representative of the accused persons, told the
court that, even before the public prosecutor could say anything,
he
wanted to bring to the attention of the court that the accused
persons had been arrested and detained in the police custody
since
Monday 17th September 2007. It was only on 26th September 2007 that
they were brought before the Magistrate court for remand.
No
application for further detention was ever made at the expiry of 48
hours of the accused's detention in the police custody.
In the
submission of Mr. Khauoe, the accused's detention from 17 September
2007 to 26th September 2007 was against the provisions
of the
Constitution and, therefore, unlawful. Moreover, whilst they were in
the police detention, the accused persons had been
assaulted.
Consequently the court should decline to remand the accused persons.

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The
public prosecutor conceded that the accused persons had been arrested
and detained by the police since 17th September 2007.
When they were
brought before the court for remand, on 26th September 2007 the
accused had clearly been in police detention for
more than 48 hours.
The public prosecutor denied, however, that by detaining the accused
in their custody for more than 48 hours
before bringing them before
the Magistrate court for remand the provisions of the Constitution
had been violated. In the submission
of the public prosecutor, what
had been violated was section 32(1) of the Criminal Procedure and
Evidence Act, 1981. The section
reads:

"32 (1) No person arrested without warrant shall be detained in
custody for a longer period than in all circumstances of the
case is
reasonable and such period shall subject to subsection (2), unless a
warrant, has been obtained for further detention upon
a charge of an
offence, not exceed 48 hours, exclusive of the time necessary for the
journey from the place of the arrest to the
subordinate court having
jurisdiction in the matter."

As
regards the allegation that the accused persons had been assaulted
during their detention by the police, the public prosecutor
told the
court that there was no evidence to substantiate that allegation. In
any event, even if it were true that they had been
assaulted during
their detention by the police that could not be the reason why the
accused persons should not be remanded. The
defence counsel knew very
well what should be done in that

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eventuality.
In the submission of the public prosecutor, the court should, in the
circumstances, go ahead and remand the accused
persons.

From the
submissions made by the parties, the trial Magistrate accepted that,
at the time they were brought before him for remand,
the accused
persons had been in police detention for more than 48 hours. Despite
the public prosecutor's denial that the accused
persons had been
assaulted during their detention by the police the trial Magistrate
said, at the time the accused persons appeared
before him, they
complained that during their detention the police had been assaulting
them. The trial Magistrate himself noticed
that they had sustained
injuries on their bodies and he even ordered that they be referred to
a government medical doctor for treatment.
The trial magistrate
accepted, therefore, that the accused persons had been assaulted by
the police during their detention. For
these reasons, the trial
Magistrate took the view that if the accused persons were to be
remanded, it would imply that the court
was turning a blind eye to
the offences perpetrated on them by the police officers or
functioning just like a hose pipe which conveyed
water regardless of
whether it was dirty or clean. This, in the opinion of the trial
Magistrate, a remanding court could not do.
He found support for his
opinion, in the decision of REX vs MAKOTOKO

5

LEROTHOLIi
& 4 OTHERS CR. 935/07 (unreported), a case decided by the Chief
Magistrate (Central) where the latter said, at page
19:-

"A remanding court is not just a post office or conduit pipe
through which matters beyond its jurisdiction are simply
transmitted."

In the
light of the aforesaid, the trial Magistrate declined to remand the
accused persons whom he said he was merely placing under
"protective
detention" (whatever that means) pending directives by the High
Court as to what he should do in the circumstances
of this case. The
trial Magistrate, accordingly, sent the proceedings to the High Court
for review with a request for directions
as to what to do where he
found that the accused persons brought before him for remand were
unlawfully before him in the sense
that they had been assaulted and
detained for more than 48 hours by the police.

It is
significant to observe that REX vs MAKOTOKO LEROTHOLI & 4 OTHERS
CR.935/07, the case on which the trial magistrate relied
for his
decision, was finally brought to the High Court and Lehohla, CJ
authoritatively decided that a Magistrate Court had remanding
powers,
in respect of all criminal cases. If it found there were legal

6

impediments
such as unlawful detention that court did not have to refer the
matter to the High Court for fear that to remand the
suspects would
amount to saying ditto to the unlawfulness perpetrated on them by the
police. The court was equipped with sufficient
jurisdiction to avoid
saying ditto to the unlawfulness. It was, for instance, entitled to
release the suspects on bail (if bailable
before it) or simply
release them on the score of unlawfulness that had tainted their
detention (Rex v. Makotoko Lerotholi &
4 Others CRI/1/2007.)

On the
authority of the decision in REX vs MAKOTOKO LEROTHOLI & 4 OTHERS
CRI/1/07 I come to the conclusion that by referring
the proceedings
in this matter to the High Court for review and directions, on the
ground that by reason of their detention for
more than 48 hours and
assault during their detention, the suspects were unlawfully before
him for remands, the trial Magistrate
did not exercise his discretion
properly. It is, therefore, ordered on review, that the proceedings
be remitted to the trial Magistrate
who is equipped with sufficient
jurisdiction to deal with the matter.

B.K.
MOLAI

JUDGE

30th
November 2007

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CC: The
Director of Public Prosecutions

All Chief Magistrates

All Magistrates

All Public Prosecutors

The Magistrates - Mokhotlong

The Director of Prisons

O/C Police - Mokhotlong

O/C Prisons - Mokhotlong

CID - Mokhotlong