IN
THE HIGH COURT OF LESOTHO

CRI/A/23/2007

In
the matter between:

MAKOTOKO
DANIEL LEROTHOLI

CAPTAIN
LEHLOA RAMOTŠO

MAJOR
RAMABELE MOKHANTŠO

CORPORAL
PAUL NTLHANE MAJALLE

ELIAS
MOTLOMELO

VS

DIRECTOR
OF PUBLIC PROSECUTIONS

JUDGMENT

Delivered by the Honourable
Judge M. Mahase

On the 7^th
July, 2007

This appeal was
lodged on urgent basis on behalf of the appellants by their attorney
Mr. E.H. Phoofolo. The appeal was lodged against
the order of the
learned Chief Magistrate for the central region dated the 6^th
July 2007 in the Maseru CR935/2007.

The appellants had
appeared before the learned Chief Magistrate following their unlawful
detention by members of the Lesotho Defence
Force sometime in June –
July 2007.

The appellants
were taken before the learned Chief Magistrate for a formal remand
but ultimately they were not remanded because
the learned Chief
Magistrate declined to do so. His reasons for having declined to do
so were among others that the said appellants
had allegedly been
unlawfully detained beyond the period of 48 hours; contrary to the
provisions of the laws of this country.
Viz The Constitution of
Lesotho and indeed also contrary to the Provisions
of the Criminal Procedure and Evidence No.9 of 1981.
To which I shall refer to in due course.

The issue that was
raised by the learned Chief Magistrate and referred to the High Court
for determination by this court (High Court)
was whether or not in
the circumstances of this case, the court of the learned magistrate
had jurisdiction to entertain the question
of the lawfulness or not
with regard to the appearance before it of those suspects/now
appellants.

It is apposite to
mention at this stage that having declined to remand them for reasons
shown on the record of proceedings in CR935/2007
(supra) he
nonetheless ordered that they be kept in what he called “protective
custody” of the police pending a determination
by the High Court as
to whether or not in the circumstances of this case, the Magistrate’s
court had jurisdiction to remand the
appellants.

When the
application was brought before this court, it was accompanied by the
partly typed record of proceedings from the court
a quo.

This court
declined to entertain that appeal for the simple reason that
according to the learned Chief Magistrate’s order, the
issue he had
raised was a constitutional law issue. It was ordered by this court
that the record of proceedings therein be returned
to the learned
chief magistrate so that he could have the record typed and later
send back to the office of the Registrar of the
High Court for the
High Court to deal with the issue(s) therein raised pursuant to the
Constitutional Court Rules.

This court was
however successfully persuaded by counsel for the appellants to deal
with the order of the learned Chief Magistrate
that even though the
suspects had not been formally charged nor remanded in whatever way,
they be detained in police custody for
an unspecified or for an
indefinite period presumably until the issue which had been referred
to the High Court had been determined.

It will be readily
seen that the net effect of the learned Chief Magistrate’s order
would be that the suspects would be so detained
in police custody as
ordered indefinitely and without a charge of any kind having been
preferred against them.

This, one must
observe, is a novel practice. This I say with the greatest respect.

The laws of this
country are very clear and unambiguous as to what a remanding court
should do whenever and for whatever reasons
it declines to remand any
person, be it one who has already been formally remanded but whose
case is being indefinitely postponed
and not being prosecuted, and or
any person who has been unlawfully detained as is the case in the
case now being dealt with.

Vide Sections
6(3)(b) of the Constitution of Lesotho.

Sections
32(1)(2) of the Criminal Procedure and Evidence Act No.9 of 1981.

Part II –
Section 3
as well as
Section 4 of the Speedy Courts’ Trial Act No.9 of 2002

Indeed, and regard
being had to the provisions of the law(s) herein above referred to,
an application for the release of the applicants
forthwith from
custody and in the attendant circumstances of this case should never
have been an issue.

This point is
buttresses by the Provisions of the above cited laws.

Section
32(1)(2) and(3) of the Criminal Procedure and Evidence Act
(supra) provides as follows:- (I quote)

Sub-section (1)

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

Sub-section (2)
provides that (I quote)

“Unless a
person arrested without a warrant is released by reason that no
charge is brought against him,
he shall
be brought before a subordinate court having jurisdiction upon a
charge of an offence but if the magistrate of the court is
temporarily
absent, and there is no other magistrate available who
has jurisdiction in the matter that person may be detained in custody
until
the return of the first – mentioned magistrate or such other
magistrate becoming available, whichever is earlier.”

This court takes
judicial notice of the fact that a Clerk of Court can lawfully also
remand suspects if the magistrate of the court
is temporarily absent.

Sub-section (3)
provides that; (I quote):-

“Nothing in
this section shall
be construed as modifying Part VIII or any other law, whereby a
person under detention may be released on bail.”
(My underlining)

It must be
recalled that in the instant case, the applicants had not been
formally arrested by members of the Police Service; but
that they had
been unlawfully detained, and extremely assaulted by members of the
Lesotho Defence Force who in law are strictly
not the ones empowered
to maintain law and order. In other words the arrest and detention in
custody of the applicants by members
of the Lesotho Defence Force was
not only unlawful but it has not anywhere been sanctioned by the laws
of this country. The duty
of maintaining law and order is the
exclusive duty of the police.

Even the police
are mandated by the law as well as by the provisions of the
international laws and conventions regarding the rights
of suspects
to which this country is signatory, to treat suspects humanely and in
accordance with the law. It is a matter of common
cause that
suspects who are in lawful police detention for whatever crimes they
are alleged to have committed are equally entitled
to a fair, human
and just treatment in keeping with domestic and international laws.
There is nowhere, where any law provides
for the flagrant disregard
and the trampling upon with impunity, on the rights of any suspect.

To further
illustrate the above, the legislature in this country, has in its
quest for the protection of the rights of those who
find themselves
having violated the law enacted the Speedy
Court Trials Act
(supra), which provides in Section
3(1), Part II
of same that: (I quote):

“Any charge
or indictment charging a person with the commission of an offence
shall
be filed within 48 hours from the time of arrest or service of
summons
unless the filing of a substantive charge within the prescribed time
shall not be possible due to the complexity of a case.”
(My underlining)

In the instant
case, the applicants have all been unlawfully arrested; extremely
assaulted and unlawfully detained by members of
the Lesotho Defence
Force, well beyond the 48 hours period herein prescribed.

Worst still, a
remanding court declines to remand them and prefers no formal charges
of any kind against them.

Instead it mero
motu,
and for the strangest reasons orders that they be further detained
indefinitely in police custody.

With the greatest
respect, there is no legal basis for this kind of an order of court.
The applicants herein have been unlawfully
detained and denied their
liberty unlawfully without being charged formally under the most
disturbing strange illegal circumstances.
Their further indefinite
detention in police custody is not only grossly irregular and unjust,
but it amounts to the countenancing
of illegal actions which have
been perpetrated upon them by members of the Lesotho Defence Force.
There is no doubt in the mind
of this court that there was a
misdirection on the part of the Judicial Officer before whom the
applicant’s appeared for a remand.

A further reading
of the Provisions
of Section 4 of the Speedy Courts Trial Act
(supra), prohibits in mandatory terms a remanding court from
remanding a person in custody for a period exceeding 60 days (sixty

days) unless there are compelling reasons to the contrary and such
reasons shall be recorded in writing.

There is no
indication, in arguments presented before this court that any of the
applicants had requested or prayed that he be placed
under what is
called “protective custody;” whatever that means.

The learned
presiding magistrate may probably have acted in good faith and for
good reasons in issuing such an order prejudicial
as it is to the
applicants. However, the procedure herein adopted by the court a quo
is not sanctioned by any of the relevant
laws dealing with remands of
suspects. This is a novel, grossly irregular procedure which is
highly prejudicial to the applicants.

This explains why
this court treated this application/appeal as review proceedings.

One must emphasise
that it is highly imperative that all courts must, in interpreting
the law take full account of the legislative
body’s intention.
This is an important aspect which can not be neglected by courts
merely on the grounds of possible technical
shortcomings in a
statutory instrument.

The courts have an
onerous duty of upholding the rule of law and protecting the rights
of individuals especially in situations where
the acts complained
about constitute a gross infringement of personal liberty.

The circumstances
herein obtaining in the present case are such that the courts should,
indeed, in administering justice, consider
both the reasons for and
the spirit of the legislation they apply.

There is no doubt
in the mind of this court that the rights of the appellants in this
case and as contained in chapter II of the
Constitution of Lesotho;
as well as under Section
32(1) and(2) of the Criminal Procedure and Evidence Act
(supra) have been grossly violated.

It is for the
foregoing reasons that this court ordered that the applicants be
released forthwith from whatever detention so that
they can among
other things, seek medical treatment for the injuries which have been
inflicted upon them by their captors.

In conclusion,
this court feels compelled to indicate its displeasure and that it
frowns upon the total disregard with impunity
of its order that the
applicants be availed to court on the 7^th
July 2007 by those whose duty it was to comply with that order; which
order of court had been promptly served upon them.

M.
MAHASE

JUDGE

For
Appellants : Adv. H.E. Phoofolo

For
Respondents : Mr. L.L. Thetsane