HIGH COURT OF LESOTHO
by the Honourable Mr. Justice T. E. Monapathi On the 4th day of
matter counsel had decided that due to the simplicity of the issues
there was no need for full compliance with Rule 37 (2)
written statement) because the issue to be decided first was
definite. Thus in the event of the Plaintiff succeeding on
agreed, then the parties could contest the issue of damages to be
action the Plaintiff claims compensation against the Defendants in
the total sum of Two Hundred Thousand Maloti (M200,000)
made up as
(One Hundred Thousand Maloti) for wrongful arrest and detention;
(Fifty Thousand Maloti) for contumelia;
(Fifty Thousand Maloti) for violation of his right to personal
arose out of the Third Defendant's allegedly wrongful conducted of
having arrested and detained Plaintiff for a period
exceeding forty eight (48) hours. That the laws prescribe that such
exceed forty eight (48) hours. It becomes important as to how the
period was to be calculated.
part Defendants deny any liability against the Plaintiff and state
that the Plaintiff had been lawfully arrested on a
on suspicion of theft of fuel belonging to Lesotho Government.
not disputed that Plaintiff was thereafter kept in police custody
from Sunday to 1st December 2002 and was released on the
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:
"no person arrested without a warrant (my underlining) shall be
detained in custody for a longer period than in all circumstances
the case is reasonable and such period shall, subject to subsection
(2), unless a warrant has been obtained for further detention
charge of an offence, not exceeding 48 hours exclusive...." (My
the crisp question to be determined by this court is whether
Plaintiffs detention exceeded the lawful limit. The parties
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
decided case that spoke exclusively of "hours" not "days"
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.
49 (1) of the Interpretation Act 19/1977
"in computing time for the purposes of an Act."
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
event happens or the act or thing is done;
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
act or proceeding shall be considered as done or taken in due time,
if it is done or taken on the
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
any time not exceeding six days, Sundays and public holidays shall
not be reckoned in the computation of the time. (My emphasis).
corollary section 49 (2) of the said Interpretation Act further
"if the time limited by an Act for any proceedings or the doing
of anything under its provisions expires or falls upon a Sunday
public holiday, the time so limited shall be extended to, and such
thing may be done on, the day next
following not being a Sunday or public holiday, (My emphasis).
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
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
expire outside ordinary
hours or on a day which is not an ordinary court day." (My
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:
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
holidays shall not be reckoned ..." and 49 (2) fall upon a
Sunday the time shall be extended.... on the next day
be clearer than that.
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.
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.
Act otherwise clearly caters for and prescribes for a situation where
an event has taken places or happened on a
(which is the beginning of an act) such as the present facts of the
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.
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.
aforegoing it is clear that this claim should be dismissed with
costs. I so ordered.
Plaintiff: Adv. Thoahlane
Defendants: Adv. Letsie
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