CIV/T/502/2004

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

Plaintiff

First
Defendant

Second
Defendant

Third
Defendant

JUDGEMENT

Delivered
by the Honourable Mr. Justice T. E. Monapathi On the 4th day of
September, 2007

In this
matter counsel had decided that due to the simplicity of the issues
there was no need for full compliance with Rule 37 (2)
(agreed
written statement) because the issue to be decided first was
definite. Thus in the event of the Plaintiff succeeding on
the issue
of law,

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as was
agreed, then the parties could contest the issue of damages to be
awarded.

In this
action the Plaintiff claims compensation against the Defendants in
the total sum of Two Hundred Thousand Maloti (M200,000)
made up as
follows:

1. M100,000.00
   (One Hundred Thousand Maloti) for wrongful arrest and detention;

   
   

2. M50,000.00
   (Fifty Thousand Maloti) for contumelia;

   
   

3. M50,000.00
   (Fifty Thousand Maloti) for violation of his right to personal
   liberty.

   
   

The claim
arose out of the Third Defendant's allegedly wrongful conducted of
having arrested and detained Plaintiff for a period
allegedly
exceeding forty eight (48) hours. That the laws prescribe that such
detention should

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not
exceed forty eight (48) hours. It becomes important as to how the
period was to be calculated.

For their
part Defendants deny any liability against the Plaintiff and state
that the Plaintiff had been lawfully arrested on a
Sunday afternoon
on suspicion of theft of fuel belonging to Lesotho Government.

It was
not disputed that Plaintiff was thereafter kept in police custody
from Sunday to 1st December 2002 and was released on the
3rd December
2002. This period of detention, Defendants contend, falls squarely
within forty eight (48) hours and not beyond. That
this had therefore
been reasonable fair and as contemplated by the law. Reference was
made to section 32 (1) of the Criminal Procedure
and Evidence Act
9/1981 (the CP&E) which provides that:

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"no person arrested without a warrant (my underlining) 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 exceeding 48 hours exclusive...." (My
emphasis).

So that
the crisp question to be determined by this court is whether
Plaintiffs detention exceeded the lawful limit. The parties
differ in
their approach to determining how "forty eight (48) hours"
is to be calculated. It is specifically that while
the same laws may
be applicable the parting point is that what is calculated for is not
"days" but "hours"
in computation of time. Mr
Thoahlane for Plaintiff did not contend that there was any guidance

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in
decided case that spoke exclusively of "hours" not "days"
or "time".

So that a
very terse expression of the problem is whether if an event happens
on Sunday should this counting of "hours"
start on Sunday
on the one hand or on the next day which is not a "Sunday"
or a "public holiday" on the other
hand. The question may
also find an answer even considering what the interpretation of law
or other laws says about events that
fall upon a Sunday or public
holiday. The Crown submitted that the laws favour the conclusion that
the Plaintiff shall have been
detained for less than forty eight (48)
hours. The Plaintiff submitted the opposite. It is that the counting
should start on the
day of arrest. If not it follows Plaintiffs case
would be unsupportable.

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Section
49 (1) of the Interpretation Act 19/1977

provides
that:

"in computing time for the purposes of an Act."

1. A
   period of day from the happening of an event or the doing of any act
   or thing shall be deemed to be exclusive of the day on
   which the
   event happens or the act or thing is done;

   
   

2. Where
   any act or proceeding is directed or allowed to be done or taken on
   a certain day, then, if that day is a Sunday or public
   holiday, the
   act or proceeding shall be considered as done or taken in due time,
   if it is done or taken on the

   
   

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next following day, not being a Sunday or public holiday; c) Where an
act or proceeding is directed or allowed to be done or taken
within
any time not exceeding six days, Sundays and public holidays shall
not be reckoned in the computation of the time. (My emphasis).

As
corollary section 49 (2) of the said Interpretation Act further
provides that:

"if the time limited by an Act for any proceedings or the doing
of anything under its provisions expires or falls upon a Sunday
or
public holiday, the time so limited shall be extended to, and such
thing may be done on, the day next

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following not being a Sunday or public holiday, (My emphasis).

I have
accordingly placed my emphasis on the relevant parts of the
Interpretation Act. Mr. Letsie submited further that the Crown's

viewpoint was supported by statement of Professor G. E. Devenish in
his work A Commentary on the South African Constitution at
page 84,
where the learned author writes:

"every person arrested for allegedly committing an offence has
the right to be brought before a court as soon as reasonably

possible, but not later than 48 hours after the arrest or at the end
of the first court day after the expiry of 48 hours, if the
48 hours
expire outside ordinary

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hours or on a day which is not an ordinary court day." (My
emphasis).

Mr Letsie
submitted that when stock is taken of above provisions and the
undisputed facts of the case it will be seen that the Plaintiffs

detention was less than forty eight (48) hours. This conclusion
should be arrived at because of the following:

That the
Interpretation Act (the Act) is specific that forty eight (48) hours
period is suspended by law on Sundays, public holidays
or on days
which are not ordinary court days. See 49 (1) (a) "exclusive"
49 (1) (b)

"......as done.....on the next following day, not being a Sunday
or public holiday, anytime not exceeding days .... Sundays
and public
holidays shall not be reckoned ..." and 49 (2) fall upon a
Sunday the time shall be extended.... on the next day
following

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It cannot
be clearer than that.

Following
on above, I was accordingly urged that in addition to the accuracy of
the above section as being individually decisive
and definitive; one
has to have due regard to the totality of the section and try to give
it the meaning that the legislature intended.
I agreed with respect.

I
accordingly disagreed with Plaintiffs contention that the
Interpretation Act is merely concerned with the period when the forty

eight (48) hours expires. I have concluded that the Act also provides
for a situation when the time expires on or falls on a Sunday.
The
Act otherwise clearly caters for and prescribes for a situation where
an event has taken places or happened on a

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Sunday
(which is the beginning of an act) such as the present facts of the
case.

Again, it
is inarguable in my view, that according to the Act which a person is
detained for a period of forty eight (48) hours
this period may
include (for computation purposes) the Sundays or public holidays if
it falls on that day or expires thereon. In
my opinion this is more
so where the event takes more than six (6) days. I noted that the
present scenario is not where the event
falls on a Sunday or public
holidays but where it begins thereon.

I agreed
with the Crown that the computation of time in the present case makes
the time of detention to be less than forty eight
(48) hours. The
detention was therefore not unlawful.

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From the
aforegoing it is clear that this claim should be dismissed with
costs. I so ordered.

T
Monapathi

Judge

For
Plaintiff: Adv. Thoahlane

For
Defendants: Adv. Letsie