IN THE HIGH COURT OF LESOTHO
In the matter between:
APESI RATŠELE ….........................................................................................PLAINTIFF
COMMISSIONER OF POLICE …........................................................1ST DEFENDANT
ATTORNEY GENERAL …...................................................................2ND DEFENDANT
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 8TH DAY OF JUNE 2011
The plaintiff in this matter sues the defendants for the payment of an amount one hundred thousands and forty-five Maloti – [M100,045-00] as damages for the unlawful arrest, unlawful detention, torture, humiliation and actual medical expenses incurred for treatment after alleged torture.
Plaintiff- APESI RATŠELE was driving his motor vehicle along the Main highway South from Maseru to Morija. At that time plaintiff was employed by the Ministry of Tourism, Environment and Culture. It was during this annual event of Morija festival. Plaintiff was to perform certain functions at that arts and cultural festival. In his motor vehicle there were two passengers who were also going to attend that festival. These two passengers had alcoholic drinks in their possession. They were drinking in that motor vehicle which was being driven by the plaintiff.
On their way to Morija, at Ha Moruthoane, they found a Police road block. The Police ordered the plaintiff to come out of the motor vehicle. He came out. They asked him if he was drunk. He denied. They asked him if he had been drinking because there was smell of alcohol in his motor vehicle. He also denied that he was drinking.
The police asked the plaintiff to go for a breathalyzer test, plaintiff agreed with confidence to undergo a breathalyzer test. There were arguments. The police and the plaintiff were arguing about the condition of the plaintiff. The police insisted that he was driving under the influence of alcohol. The plaintiff insisted that he was sober. The final arbiter was the taking of the breathalyzer test. The police told the plaintiff that if his reading if over the legal limit they will arrest him. Plaintiff was sure he was not drunk. He said he agreed to take the test with confidence. He told the court that the result vindicated him. His reading was 0.5845. According to him at this stage they – [himself and the police] were no longer talking amicably. Police indicated that they want to curve him. Plaintiff submitted his hands for the policeman to curve them. Plaintiff thought he was going to be taken to a Police Station. Police curved the plaintiff’s hands from behind him. They did not take him to a Police Station as he expected. They attached him to a bull bar of one of the Motor Vehicles parked there. It was around 09.00 hours when this plaintiff was arrested.
Plaintiff remained standing the whole night at the Motor Vehicle at whose bull bar he was fastened. Early in the morning that motor vehicle seemed to be getting read to move away from that scene. Plaintiff was transferred to a trailer which was also parked there by the road side. Later that early morning plaintiff wanted to release relief himself. He asked one of those policemen if he could allow him to pass water. That police man uncurved one of the plaintiff’s hands so that he can use it to unzip his pair of trousers and pass water thereat. The plaintiff therefore remains curved one hand and attached to the trailer.
In the morning around 04.30 hours the police were engaged in yet another quarrel with another man. That man was said to be a soldier. There was a need for the use of handcuffs on this other man. The police wanted to handcuff him. But they had no more pairs of hand cuffs. They decided to take the handcuffs on this plaintiff in order to handcuff that other man. So they released the plaintiff when they removed the handcuffs to handcuff that other man. It was about 04.30 hours. Plaintiff was told he was free to go.
The plaintiff’s motor vehicle battery was flat. Those two men who were left seated in his motor vehicles helped to put it so that it can start. They succeeded to start it. He drove away from the road side. Plaintiff went to the Police Station that next day he reported the incident. He was given a form called Medical Officer Report which he took to the place where he sought medical attention, examination and treatment. Plaintiff paid an amount of forty-five Maloti at Queen Elizabeth II Hospital where he was medically assisted. The doctor saw signs of handcuffs on both his writs which were generally painful.
At the Police Station where he sought help with the identification of the police officers, who manned the road block where plaintiff was arrested he was given the names of Matjotjobela and Lichaba. At the scene of his arrest plaintiff identified only Police Officer Mohloai.
It is admitted that plaintiff was arrested around 09.00 a.m. on the 3rd day of October 2008. Plaintiff was driving drunk a motor vehicle heading to Macufe festival in Morija.
Policemen Kahlolo, Ralejakane and Mokhali Lichaba detected that plaintiff was drunk.
They effected that they call lawful arrest and subsequent detention.
The police claim the breathalyzer test reading of the plaintiff was 115 mg of alcohol.
Plaintiff is charged in CR:478/10 at Maseru for driving while under the influence of alcohol.
Plaintiff is again charged with escaping from lawful custody.
WAS PLAINTIFF ARREST LAWFUL OR NOT
The police claim they arrested plaintiff for driving a motor vehicle a motor vehicle, on the motor way while under the influence of alcohol. This allegation is denied. The plaintiff told the court that only his two companions were drinking. He said he was not drunk at the time the police at the road block stopped. He told them so. It is in the common cause that the breathalyzer test was carried out. According to the plaintiff his reading was 0.5845 – way below the legal limit of alcohol in blood of a driving who is behind the wheel. This is an issue. According to the police the alcohol reading of the plaintiff at the time he was arrested was 115 mg of alcohol in his blood. In the plea it is stated that the plaintiff was charged in CR: 478/10 at Maseru Magistrate Court with the crime of driving a motor vehicle bearing registration number MSP 57 GP on a public road while under the influence of alcohol, to wit, breathalyzer test reading 115 mg of alcohol.
Plaintiff was arrested on the 3rd of October 2008 at 09.00 hours. He was handcuffed and attached to the bull bar of one of the motor vehicles parked outside the road there at the road block. He was never taken to any police station at that time or any time later. He was detained there for the whole night and released in the morning when there was a need to use those handcuffs on his hands on someone else who the police called troublesome. On the 30th January 2010 the summons in this matter were issued out of this court against the defendants. Those summons were served upon the defendants on the 4th February 2010. Plaintiff was arrested on the 3rd October 2009. He was never taken to a police station and charged and/or a docket opened. When the defendant received the summons almost immediate the charge was preferred against the plaintiff. It is CR 478/10 why did those policemen wait for this long – nearly six months to charge the plaintiff with the offence of driving a motor vehicle on the public road while he was under the influence of alcohol? Is this a tramped up charge? What made them take so long to consider charging this plaintiff? Had they forgotten all about it? Was it because they saw the summons and they had to create a defence against the charge made against them? This seemed to be more probable, particularly because up to this day, that case has never been placed before the Magistrate’s Court. Plaintiff has never been put before the court to answer the said charges. It is very material that the result of the breathalyzer test is put before the court. The defendant did not appear before court for this matter. They have not been before that Magistrate’s court where they claim plaintiff has been charged. It is the plaintiff’ evidence that he was not drinking, only his companions were drinking. Plaintiff told the court that his breathalyzer reading was well below the permitted level of alcohol in blood while driving that motor vehicle. He told the court that his breathalyzer test reading was 0.5845 alcohol in blood. It is therefore the actual production of those test results which can falsify this figure. If those policemen did not take the plaintiff to the charge office on the day of arrest or any time thereafter to charge him with that offence, it is most probable that he was not drunk.
If those policemen did not go to the magistrate court to prosecute the charge they preferred, even if it was many months after the alleged act, it is most probable that it is a tramped up charge. Those policemen did not write and give their witnesses statements to the counsel prosecuting the defence. The counsel and them failed to appear for the hearing of this matter. Therefore no evidence was produced to contradict the plaintiff told this court. His uncontradicted version of the events of that 3rdday of October 2008 at that police road block must be accepted by this court.
The arrest is lawful or unlawful at the time and place where it took place. It cannot be made lawful or unlawful by subsequent events. The offence for which the plaintiff was arrested must have been committed at or prior to the time of his arrest. There is no reason to fail to charge him then and there. These policemen arrested the plaintiff but failed to charge him with any offence then and there. Therefore the arrest was unlawful.
Detention and/or escape from lawful custody. The plaintiff did not escape. He told this court that he was released. There had been pleas by himself – the plaintiff and also and by one senior officer at the Ministry of Tourism, Culture and Environment at that time, one Mr JOBO MOLAPO that those policemen should release the plaintiff. They refused. It was at the time they needed to use those handcuffs that they removed them from the plaintiff and told him to go. He did not escape. His motor vehicle battery was even flat. He could not leave the scene in an instant. The motor vehicle had to be pushed in order to start. This charge of escaping from lawful custody is also a tramped up charge which cannot be sustained.
The plaintiff detention out there exposed to the elements e.g. rain, cold etc was unwarranted. The passer bys saw and those who knew him came to see and enquire what was the matter. Mr JOBO MOLAPO is said to have failed in his attempts to convince those policemen to release to him the plaintiff so that he could be responsible to ascertain that he complied with whatever conditions they impose for his release. Those policemen refused. Plaintiff was humiliated. He had to relief himself there at the Motor vehicle when nature called.
Plaintiff has made out a proven case for him to be awarded the damages in the amount set out and proved. For these reasons this action succeeds. The damages are granted as prayed with costs.
K. J. GUNI
For Plaintiff: Mr Khesa
For Defendant: No Appearance
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