IN THE HIGH COURT OF LESOTHO
In the matter between:
RAMORONTŠI NTAOTE PLAINTIFF
THE OFFICER COMMANDING LDF 1ST DEFENDANT
THE COMMISSIONER OF POLICE 2ND DEFENDANT
ATTORNEY GENERAL 3RD DEFENDANT
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 26 DAY OF MAY 2011
1 – PARTIES TO THIS SUIT
Plaintiff in this matter is one RAMORONTŠI NTAOTE. He is a male adult Mosotho. He is married with two children. He resides with his family at MAKOANYANE MILITARY BARRACKS. He lives in a government house allocated to him by and under the auspices of the army. He is by profession a soldier. He works at HA RATJOMOSE MILITARY BARRACKSwhere he is LESOTHO DEFENCE FORCE ARMOURER. He holds the rank of a Sergeant.
The 1st Defendant is the Officer Commanding Lesotho Defence Force. He is responsible for day to day matters of the army. All members of the Lesotho Defence Force are answerable to him in all their actions which they perform for and on behalf of the army under his command. The 2nd defendant is the Commissioner of the Police. She is responsible for day to day matters concerning the policing, security and protection of the Nation and the country by the members of the Police Force. All members of the police service, are answerable to the commissioner in the performance of their duties.
The 3rd defendant is the Attorney General who represents the Lesotho Government and all government departments in all civil matters. The members of both the army and the police force, are working for the Government of Lesotho in their Departments or Ministries of Defence and Home Affairs. Attorney General represents all the defendants in this matter, because they form part of departments and/or Ministries which are part and parcel of the Government of LESOTHO.
2 – PLAINTIFF’S CLAIM
Plaintiff is suing the defendants for payment of compensation of damages in the amount of four hundred thousands Maloti. [M400,000]. The compensation for damages is claimed against these defendants for unlawful actions allegedly committed against the plaintiff by member of the Lesotho Defence Force together with and/or in the company of the members of the Police Force at the Police Station and at Military Police office. The unlawful actions committed by the members of the army and police, against the plaintiff are:- (a) unlawful arrest, (b) search, (c) detention, (d) assault and torture while in detention. These soldiers and policemen allegedly carried out the acts complained of during the course of the performance of their duties and/or functions as crown employees and in pursuance of their duties to protect and secure the safety of the people and country.
3 - ISSUES AS GLEANED FROM THE PLEADINGS
1 - It falls to be determined by this court whether or not the plaintiff’s arrest was unlawful.
It is admitted that plaintiff was arrested by the Military Police. Every person in LESOTHO is entitled to personal liberty, except upon reasonable suspicion of his having committed or being about to commit a criminal offence SECTION 6 (1) (e) CONSTITUTION. According to the defence witnesses who were members of the investigating team which consisted of soldiers and policemen there was suspicion that plaintiff was involved in the crime of breaking-into the armoury and stealing of arms therein. It was argued that plaintiff was arrested in terms of military laws, rules and regulations.
In terms of Section 86 (1) LESOTHO DEFENCE ACT 1996;
“Any person subject to this Act found committing an offence against any provision of this Act or reasonably suspected of having committed any such offence may be arrested and taken into Military Custody, in accordance with the provisions of this section”
[My underlining to highlight the portions relevant in the present case.]
The crime had already been committed. The arrest could be made against anyone suspected of having committed the said crime - burglary of the Armoury. It is the plaintiff’s evidence that after he had reported the crime and the senior officers came to inspect or examine the scene of the crime, he was ordered to remain there, at the scene. He does not say who exactly made that order. But he obeyed the said order. He was not told in so many words that he is under arrest. There is no evidence pointing at any particular person who could be said to have made the arrest of the plaintiff. Then this question may be asked. Who entertained that reasonable suspicion that plaintiff might be involved in the alleged burglary of the ARMOURY?
From the evidence of the plaintiff when he was interrogated, his interrogators asked him, “who broke into the ARMOURY? Where are the guns etc?.” From the evidence of the interrogators who testified before this court. DW 1, 2 and 3 they also appear to have entertained the suspicion that plaintiff was involved in the burglary. Prior to the breaking-in, plaintiff was on duty or guard at the ARMOURY. Immediately after the alleged breading-in at the ARMOURY plaintiff was on duty. According to the plaintiff’s evidence – his interrogators asked him questions such as “if you say you do not know who broke-into the armoury, who should know? “Who should be asked?”
Although it is not clear exactly who in particular arrested the plaintiff, the arrest is in the common cause. It also appears to be in the common cause, that the arrest was made on reasonable suspicion that he had committed a crime. DUNCAN V MINISTER OF LAW AND ORDER 1986 (2) SA 791. This suspicion seems to have been entertained by everyone or anyone involved in the investigation of that crime of burglary. The fact that the plaintiff was on duty prior to and immediately after the alleged burglary of the armoury appears to have raised a reasonable suspicion. Put bluntly by one of the defence witnesses: “armoury was burgled on the plaintiff’s guard”. Therefore there appear to have existed a reasonable suspicion that this plaintiff had committed the crime. His arrest in those circumstances was lawful.
Plaintiff was detained from the 14th September 2000. He was detained to start with at the scene of crime. He was later ordered to go the Military Police office where he spent the rest of the afternoon of the day of his arrest. He was later taken to CIDoffices at PITSO GROUND Near the old Passport Office at MASERU. He was there from 8 pm to about early morning hours of the 15th September 2000. He was returned to the Military Police office at HA RATJOMOSE. This is the place where plaintiff spent most of the time during the period of detention according to the evidence adduced before this court.
He spent an hour or two at CIDoffices – PITSO GROUNDnear the Old Passport Office where the team of investigators questioned him about the breaking-in and theft of arms at the ARMOURY. During the period of detention he was not allowed visitors. He was not allowed to go and seek medical attention or help. He was released on the 17th September 2000. He went to consult medical doctor. He was now free to go to his home and be with his family. He was however ordered to report himself at HA RATJOMOSE MILITARYPolice office daily. He reported himself daily as ordered from the 17th September 2000 until the 19th October 2000. For the above described periods plaintiff was not a free man to go and be where he pleases at anytime. He was freed completely only on the 19th October 2000. He was told to go and report for duty at his post for the very first time since the 14th September 2000. This detention therefore was for over one month period. It was only at the end of this period that plaintiff’s freedom of movement was fully restored and enjoyed by him as stipulated in SECTION 7of the CONSTITUTION.
The issue to be resolved is whether or not the plaintiff’s detention was lawful. It is argued on behalf of the dependants that the C P & Act 1981 does not apply in this case. According to the evidence of the witnesses of the defendants this plaintiff was arrested, detained and dealt with in accordance with the Military laws, Rules and Regulations, in particular SECTIONS 86, 87, 88 and 89. LESOTHO DEFENCE FORCE ACT 1996.
It is SECTION 87 (1) LESOTHO DEFENCE FORCE ACT 1996, which governs the detention of member awaiting trial for an offence in this Act. It also emerged from the evidence led on behalf of the defendants that the team of the investigators of the burglary at the armoury, made a deliberate and conscious decision to detain the plaintiff at HA RATJOMOSE MILITARY POLICE OFFICE. According to DW2 MOKHELE RANTSATSI, in his evidence in chief, they [members of the team] got instructions that  forty eight hours period of detention of the plaintiff was about to expire, therefore they should return him to HA RATJOMOSE MILITARY POLICE OFFICE where he will be given an open arrest. He did not know what is an open arrest. By whatever name the arrest of this plaintiff remained the commonly known arrest. He was not allowed visitors. He was not allowed to go home. He was not allowed even to go and see a medical doctor when he requested to do so. The plaintiff and his colleague corporal Ramashamole remained in Military custody until RANTSATSI and those holding plaintiff at HA RATJOMOSE received orders to release them.
It is an established fact that this plaintiff was detained for a period in excess of one month – [from 14th September 2000 to 19th October 2000]. He could not be any where he wanted when he wanted. In terms of SECTION 87 (1) LESOTHO DEFENCE FORCE ACT 1996a member awaiting trial for an offence in terms of this Act, may be remanded in custody in any detention barracks or civil prison. The onus of proving that the plaintiff was arrested, detained and dealt with in accordance with this Act rests on the defendants. LESOTHO DEFENCE FORCE ACT 1996. He who alleges must prove his or her allegation. It is a designated officer who may issue a remand warrant for the custody in any detention barrack or civil prison of any member. The defendant had no remand warrant for the detention of the plaintiff at RATJOMOSE MILITARY POLICE OFFICE or any where for that matter. NOwarrant for detention was shown to the plaintiff at the time of detention. None has been produced before this court. The burden of proving that the plaintiff was arrested, detained, searched etc in accordance with Military laws, rules and regulations, rests on those who claim that they acted in accordance with the said Military laws.
The detention in terms of this Act is not a indefinite one. SECTION 87 (2) LESOTHO DEFENCE FORCE ACT 1996 provides:-
“The officer or soldier or other person who commits a person into custody under this section must deliver at the time of committal or as soon as practicable and in anycase within 24 hours, to the office or soldier into whose custody that person is committed, a signed written report why the person so committed is to be held in custody.”
There is no evidence led on behalf of the defendants to show this court that this plaintiff was held in accordance with this Act. There is a bare and unsubstantiated allegation that this plaintiff was held at HA RATJOMOSEunder Military law, rules and regulations. The burden of proving that this plaintiff was detained in accordance with this Act must be borne by the defendants. There is no evidence before this court to show, that the Military Police or anyone who ordered the detention of the plaintiff at that Military barracks, did so in accordance with the provisions of this Act. In these circumstances, it cannot be acceptable that the plaintiff was detained in accordance with the Military laws, rules and regulations. Therefore his detention for that period was unlawful because defendants have failed to show the court that there was compliance with those Military laws, rules and regulations.
It is in the common cause that the plaintiff’s residential accommodation was searched. It has been established that there was no search warrant. Plaintiff was not shown a search warrant before his residence was searched. He was not shown one even at the time he was ordered to participate in the said search of his residential premises. He was ordered to open all the closed up places, such as cupboards, wardrobes, drawers etc. Nothing which could incriminate this plaintiff, was found on those premises which he occupied and still occupies to this day. It falls to be determined by this court whether or not that search was lawful in terms of Military law, rules and regulations. The portions of SECTION 88 (1) LESOTHO DEFENCE FORCE Act 1996which are relevant in our present case read as follows:-
“88 (1) if it appears to a field officer from information on oath that there are reasonable grounds for suspecting that there is upon any member or upon or at any premises belonging to the state which are occupied by or are under the control of the Defence Force
(a) …….. anything with respect to which any offence in terms
of this Act has been or is on reasonable grounds suspected
to have been committed.
(b) Anything as to which there are reasonable grounds
(1)That it will afford evidence as to the commission of any offence…… He may, in writing, authorize the search by any member of such person or premises and the seizure of any such property or thing,”
There is no evidence from the defence that there was a written authority for the search to be conducted at the plaintiff’s place. That search therefore was not in accordance with any military law, rule and regulation. This court finds that it was an unlawful search.
It is denied that plaintiff was assaulted and/or tortured. It is the evidence of the defence witness that plaintiff’s hands were in handcuffs and his legs shackled. Therefore he could not walk properly because of those shackles. Even though RALETSELA denied that plaintiff was assaulted or tortured he admitted that he handcuffed him and shackled his feet. He went on to say that while he remained behind at the motor vehicle which had conveyed them to CID offices, at the old Passport Office – Maseru, he saw plaintiff being lifted from where he had fallen by those who were with him.
He had presumably fallen down. According to Raletsela, plaintiff must have injured his lip in that fall. When he came into the office where plaintiff was being questioned he saw blood from his mouth. It is RALETSELA’Sevidence that when he asked what had happened his colleagues told him that plaintiff missed a step and fell. The plaintiff could not walk up the staircase properly while his feet were shackled. He had to hop up. It was while he hopped that he missed a step and fell.
This fall and the resultant injury on the lip, occurred on the way to the CID office where the plaintiff was questioned or interrogated. Plaintiff claims he was actually tortured as he was interrogated thereat while the defendant deny the same. The injury on the lip according to this defence witness - DW1, occurred even before the plaintiff entered the CID offices. It was prior to his interrogation. RALETSELA saw a white cloth held by plaintiff against his mouth. Others [members of the investigation team] were trying to clean the blood from the plaintiff with some water. RALETSELA asked the plaintiff if he is alright and if he is able to answer questions presumably in that condition. According to RALETSELA plaintiff answered that “this is not a big deal.” He indicated that he will be able to answer questions so they proceeded to ask him questions. These witnesses who claim they saw no blood or injury on the lip or mouth of the plaintiff, are not telling the truth!
Those who testified after RALETSELAtold this court that the plaintiff was not injured deliberately or accidentally. There was no sign of injury or assault whatsoever on the plaintiff before, during or after the interrogation. They were the members of the team which was investigating the burglary of the armoury. They were all present at one time or another or all the time of the interrogation of this plaintiff. They never saw blood or any injury on the plaintiff’s mouth. None of them is blind or was blind at that time. The injury occurred prior to his questioning or interrogation according to RALETSELA. How come they deny seeing blood or injury on the mouth of the plaintiff when they talked to him when asking him questions? The discrepancies in their denial of assaulting and injuring the plaintiff lands some support to the plaintiff’s allegation. If plaintiff fell as he was forced to hop up the staircase on the way to CID office at Maseru, that fall is caused by the action of those who shackled his feet – disabling him to walking but at the same time they forced him to climb the staircase in that manner. It is a form of assault to force the plaintiff to climb the staircase by hoping while his hands are also in handcuffs. He was severely handicapped to climb the staircase in that manner. It was made deliberately difficult for him to climb the stairs therefore the resultant fall and injury did not and should not happen as a surprise. It is most probable that the allegations by plaintiff of assault by his interrogators are correct. The defence witnesses also have testified before court regarding their own observations of this plaintiff. They said he [the plaintiff] looked frustrated, confused etc, but they could not explain exactly the looks of the frustrated and/or confused person. The way the plaintiff was treated, that is to say, handcuffing him and shackling his feet while forcing him to climb a staircase, was its self frustrating.
The allegation of assault is further supported by medical evidence. On the 3rd October 2000, the plaintiff was seen by a doctor at Queen Elizabeth II Hospital MASERU. The medical officer’s report exhibit 1 – shows that plaintiff had a scar on the lower lip.
Plaintiff was made to lie on his stomach on the blanket which was spread on the floor. He obliged. He was asked to put his hands at his back. He did as ordered. He was wearing a long sleeved tracksuit top. The sleeves were pulled to cover and protect his wrists. The handcuffs were placed on the covered wrists. His hands were handcuffed at his back. He was ordered to fold his legs backwards towards his handcuffed hands. He obeyed the order. His feet were tied together, with the handcuffed hands at his back, with something which felt like a rope. While in this position he was ordered to lift his head off the ground. The tube was placed in front of his face on that floor. They sprinkled water on that rubber tube or strip so that it is wet. Sgt Molapo pulled over the plaintiff’s face that wet rubber tube – suffocating him. He held it tight on the plaintiff’s face. There was someone who was at that time, standing on the back of the plaintiff on his hands and feet while the tube was held tight on his face – thus suffocating him. For some time, plaintiff could not move despite his attempts to try to rise up without the use of his limbs. He eventually turned his body and caused trooper Kubutu as it turned out was the one standing on plaintiff’s hands and feet at his back, to fall down by the plaintiff’s side.
The rubber tube also came off the plaintiff’s face. At this juncture the plaintiff cried or pleaded thus “Bo ntate, ha ke tsebe letho!” Translated literally “Fathers, I know nothing!”
Suffocation was repeated by Sgt Molapo. The third time suffocation was done by trooper Mathias who removed a tube after a little while. They continued to ask him questions and appealing to him to tell the truth at those intervals. They asked him if he was going to persist in his denials to his death. This question was by W/ORantsatsi.
Sgt Molapo took the plastic bag. He pulled it over the plaintiff’s head – covering it. This device also denied plaintiff the air. He – [the plaintiff], bit it. Sgt Molapo exclaimed, “hi, he bit the plastic!” or words to that effect. He then and there removed the said plastic bag. One of the plaintiff’s torturers took that rubber bend or tube again. He tried to suffocate the plaintiff. He asked the plaintiff to raise his head up again so that the rubber tube can be slipped under his face. Plaintiff refused. Someone got hold of the plaintiff’s head by pushing his fingers into the plaintiff’s eyes. The pain was excruciating: as a result plaintiff lifted his head up. The tube was slipped under his face and pulled over to cover it tightly. Plaintiff suffocated. Plaintiff did not see who was holding that tube this time round. It seems the tube was kept covering his face – thus denying him air for a long time. As a result he passed out. He does not know for how long he was out. When he did come round, it was still night. But it felt like a very long time had passed. The torture had commenced between 20 – 21 hours. It is estimated to have taken one hour or so.
When he came round, plaintiff found his torturers pouring water over him. They were fanning air on to his face. He also discovered as he gained consciousness, that he had urinated. They carried him outside to the veranda because he could not stand or support himself in anyway. There they continued to fan air on his face with a piece of cardboard paper. He then realized that he was no longer handcuffed and no longer shackled at his feet. He could not say when he was unshackled. He did not see or feel the removal of the shackles. He also did not know when the handcuffs were removed from his hands. But it was still in the dark of the night.
(i) INJURIES, PAIN AND SUFFERING
(ii) Medical expenses: (a) incurred
(b) expected to be incurred.
According to the plaintiff he is still in the army. Although he was arrested, detained, searched, tortured etc plaintiff remained a loyal member of the Lesotho Defence Force. He continued with his work at his post. He requested after undergoing this (harrowing) ordeal those in charge to give him permission to go and consult a medical doctor and receive some medical attention and treatment for the ailments which were brought upon him by those members of the Lesotho Defence Force and the Police who were involved in his torture. Those in charge refused him permission to go and consult a medical doctor for quiet some time. After some days they relented and released him from duty to go and consult a doctor. There is proof of expenses incurred as a result of consulting and receiving treatment from a medical doctor. Although plaintiff said he was made to pay, he did not produce proof of payment.
PW3 – Dr Shafiuddim Shaikh after he was sworn in testified before this court. He gave his qualifications as MBBS ‡ BPM. He said he is a medical doctor by profession and a specialist psychiatrist. He worked at MOHLOMIHospital – under the Ministry of Health. He had been working there since July 1992. He was the head of the Mental Health Programme under the Ministry of Health. He is the Custodian of the health records relating to the health condition of this plaintiff even although he did not personally deal with the plaintiff as the patient at his hospital at that time.
According to the records in his possession the doctor told the court that plaintiff was admitted as a patient at that Hospital on the 16/10/2000. This was approximately one month after the ordeal. His last review was on the 18th March 2005. He was therefore under the medical care and attention from 16th October 2000 until 18th March 2005. This is quite a lengthy period, approximately five years.
MEDICAL INVESTIGATIONS AND EXAMINATION
The doctor made the following findings during the examination of the plaintiff:
(1) Tenderness on elbow joint
(2) Tension in neck muscles
(3) Pain in lower limb
(4) Cramps at the waist and right thigh
(5) The right arm feels weak.
The above are physical symptoms. The doctor has also testified that in the patient’s file the doctor who consulted the patient has noted the following psychological symptoms.
(1) Patient sleeps poorly
(2) Has no appetite
(3) Feels weak most of the time
(4) He is depressed. Mild depression due to trauma
(5) He is apprehensive
(6) He forgets easily
(7) He has poor concentration
(8) He has no hallucinations
(9) He has no ideas of reference
(10) He has no suicidal ideolation
The patient – plaintiff herein, denied drinking alcohol nor using any other substances. Plaintiff underwent medical reviews for a period of five years. His last visit to MOHLOMI Hospital according to the records thereat was on the 18th March 2005. In the first two years plaintiff went for reviews every other month. Then reduced to every third month. He was seen four times in 2003, and once in 2004 and also only once in 2005. He did not go to Bloemfontein where he was advised to go because he did not have the money. He does not have money to go for further and better treatment for his mental and physical health.
Although the plaintiff has claimed one lump sum for the unlawful arrest, search, detention, assault, torture and medical expenses, I will award the damages as follows:
Assault and Torture M100,000
Pain and Suffering M20,000
Medical Expenses incurred M0
Medical Expenses to be Incurred M10,000
Total compensation awarded M250,000 plus costs of suit.
For Plaintiff: Mr Khasipe
For Defendants: Mr Mapetla
Prior to going to consultation and treatment at MOHLOMI HOSPITAL, plaintiff had been to QUEEN ELIZABETH IIHospital where he was treated as an out-patient on the 3rd October 2000. The medical officer’s report – EXHIBIT 1– shows that plaintiff had a scar on the lower lip. He was also complaining of pain on the right elbow. There were no visible injuries thereat. These injuries presented no long term disability.
The defendants admit that plaintiff and Corporal RAMASHAMOLE were put under arrest. But it is denied that the arrest was unlawful. It is admitted that they were taken to the Military Office. The Military Police in their turn took the plaintiff and corporal RAMASHAMOLE to CID Police office at MASERU CENTRAL, near the old Passport Office.
The allegations of unlawful search interrogation, detention, assault, torture etc are denied. It also denied that the members of the LESOTHODefence Force together with the members of the LESOTHO Police Service carried out those unlawful acts while they were on duty and performing their functions as members of LESOTHO DEFENCE FORCEand members of the LESOTHO POLICE SERVICE respectively.
The liability for payment of the amount of compensation requested is also denied.
The fact that the plaintiff was arrested is not in dispute. There is evidence that the plaintiff was the soldier in charge of the Armoury. The AMOURYwas burgled under his guard. Suspicion for the burglary immediately fell upon him. This comes out clearly during the examination of the questions put to him by his interrogators. It can also be detected from the remarks and attitude of one of his colleagues at the scene of burglary. It is the plaintiff’s evidence that after he had discovered that the ARMOURYhad been broken into, he immediately made a report to his immediate superior who also reported to his superiors. As a result many senior army officers came to the scene of the crime at once.
All the time, to every senior officer who arrived at the scene, plaintiff explained that he discovered in the morning when he reported for duty that the burglary had occurred. He repeated to everyone that he knows nothing about who could possibly have carried out that burglary. According to the plaintiff while the members of CID Police MASERUwere looking for and taking finger prints at the scene of the burglary, brigadier commanding officer Sebajoe said to the plaintiff, “that property was given away by you with all the malice you can think of!” or words to that effect. He told the plaintiff that he [brigadier commanding officer Sebajoe] wants the return of that property and that this plaintiff must produce it. It is therefore obvious that this plaintiff was the first suspect.
When the plaintiff was being questioned or interrogated at CID office MASERU, by a dozen or so members of the LESOTHO POLICE SERVICEtogether with members of the LESOTHO DEFENCE FORCE, who formed a team of investigators of the alleged crime of burglary at the ARMOURY, he denied any knowledge of the perpetrators. He did not even know the whereabouts of the items of arms and ammunitions that were stolen during that burglary. He was asked, “who should know?” “Who should be asked?” He had no glue as to who should know and who should be asked. It is his evidence that he was severely tortured and/or beaten. After each episode of suffocation he was asked,” where are the arms? Who broke into the ARMOURY?
Even although all the defence witness deny assaulting, and/or torturing the plaintiff they all seem to have been convinced that he is the man to tell or lead them to discover or find out the perpetrators of the burglary. All the defence witnesses accepted that they were in the team formed by the members of the LESOTHO POLICE SERVICEand the members of the LESOTHO DEFENCE FORCE. This team was formed specifically to perform the task of investigating the burglary at the ARMOURY. They also all admit that the plaintiff was detained. Most of the witnesses do not know the law under which he was arrested and detained. They all know the reason for his detention. It was for the alleged burglary at the ARMOURY.
It came out during the cross-examination of the defence witness that they [soldiers and policemen] did not tell the plaintiff under which law he was being arrested and detained. It also emerged during the cross-examination of defence witnesses that they arrested and detained the plaintiff not because they had information that he was involved in the burglary. They arrested and detained him in order to investigate. He was under arrest and detention from the 14th September 2000 to the 17th October 2000 when he was released and was told that he is free to go and report for duty at his army post. He had committed no crime. He was never charged with any crime. He is still a member of the LESOTHO DEFENCE FORCE. He is still an AMOURER.
Where a person has not committed any crime can there be lawful arrest and detention of such a person? Right to personal liberty is a Chapter II fundamental human right and freedom. From the evidence of the plaintiff with regard to his treatment and questioning by those members of the investigating team, there are indications that he was suspected of the burglary of the Armoury. He was at the time an armourer. Presently he is still an armourer of the LESOTHO DEFENCE FORCE. It is clear from the evidence of MOKHELE RANTSATSIthat plaintiff was suspected of committing that crime of burglary. Mokhele Rantsatsi told this court that it is the plaintiff who distributed the arms to the members of the Lesotho Defence Force as their armourer. It is to the plaintiff that the soldiers hand over the arms when they have finished to use them. It is the plaintiff who is entrusted with the care, custody and safety of the LDF’s arms. He went on to say that the burglary was committed on the plaintiff’s guard. The general trend of the evidence of the defence witnesses – who were members of the team which was formed to investigate that burglary, leans heavily towards total conviction that this plaintiff was involved in that burglary.
In terms of our constitution a person may be denied a right to personal liberty, when there a reasonable suspicion of his having committed or being about to commit a crime under the law of Lesotho. SECTION 6 (1) (e) CONSTITUTION OF LESOTHO. The person who is so arrested and detained, shall be informed as soon as reasonably practicable, in a language that he understands, the reasons for his arrest. SECTION 6 (2) CONSTITUTION OF LESOTHO.
Apart from being informed of the reasons of his arrest, the arrested person must be brought before a court as soon as is reasonably practical. If he is not brought before the court within forty-eight hours of his arrest, the burden of proving compliance with this constitutional provision rests upon the defendants. It emerged from the evidence of defence witnesses, and from the submissions made by the counsel for the defendants that the arrest and detention of the plaintiff was in terms of PART III LESOTHO DEFENCE FORCE ACT 1996.Under this part, the arrest and detention are done in accordance with the circumstances and conditions set out therein. It is not just a random arrest and an indefinite detention at the whim of the arrester.
“SECTION 86 (1) POWER TO ARREST OFFENDERS; Any person subject to this Act found committing an offence against any provision of this act or reasonably suspected of having committed any such offence may be arrested andtaken into Military custody in accordance with the provisions of this section” [My underlining]
There is no evidence that was led to show this court that the arrest was done in full compliance with this provision. There was no evidence to show this court that the plaintiff was arrested in accordance with the provisions of SECTION 86 LESOTHO DEFENCE FORCE ACT 1996.His detention was initially at the MILITARY POLICE OFFICE. But he was moved to CID OFFICE; near the old passport office in MASERU. From the evidence of the plaintiff it seems he was taken there during the night. There is support of this point even from the defence witnesses, although it appears the night transfer to those was for different reasons.
According to the defence witnesses, they brought suspects there at night for questioning or interviews because they [investigators] preferred to do questioning of the suspects when there are no people or are only a few people in the offices. From the point of view of the plaintiff, he heard that people are taken there at night for torture. Under those circumstances, it is probable that for a greater part of his detention the plaintiff was in custody at the Military Police Office. He was taken to CIDoffice at MASERUonly for questioning or interview. There is no dispute as regards the plaintiff’s arrest. It is admitted that he was arrested by the military police.
Duration of the detention and the place of the detention should be in terms of SECTION 87 (1) LESOTHO DEFENCE FORCE ACT 1996.It provides as follows;
(1)“A superior officer or a commanding officer or officer commanding may issue a remand warrant for the custody in any detention barracks or civil prison of any member awaiting trial for an offence in terms of this Act”
(2)The officer or soldier or other person who commits a person into custody under this section must deliver at the time of committal or as soon as practicable and in any case within 24 hours, to the officer or soldier into whose custody that person is committed, a signed written report why the person is committed, a signed written report why the person so committed is to be held in custody.”
The plaintiff testified before this court and in his evidence which was not challenged, he pointed out that he was arrested on the 14th September 2000. He was released on the 17th October 2000 but still ordered to keep reporting himself at the military police office for a further period of about a month or so.
The defence witness testified that the plaintiff was arrested and taken into custody in order that they investigate the case. It was put to these witnesses that they have their cart before the horses. Counsel for plaintiff put to them that they should not arrest and thereafter commence investigations. Very well, perhaps arrest may be made while investigations are continuing; but is should not be for an indefinite period.
There are specific provisions in LDF Act 1996, which is specifically directed at avoiding delays after arrest. SECTION 89 (1)
“The allegations against any person subject to this Act who is under arrest shall be duly investigated without unnecessary delay, and as soon as may be, either proceedings shall be taken against him or he shall be re released from arrest.”
It is an undisputed fact, that this plaintiff was never ever put before any court. No court-martial was ever assembled to try him. He has never even dealt with summarily.
The arrest and the detention of the plaintiff were not in accordance with any law of this kingdom. Although some of the defence witnesses testified that plaintiff was arrested and a police docket opened, no proceedings were instituted against the plaintiff at the civil court. Plaintiff told the court and his evidence was not challenged, that some other soldiers were found to be involved in the burglary of the AMOURY. He was informed that the culprits did not involve him in any way. Therefore his arrest and detention were unlawful.
Early in the investigations search was conducted at the residence of the plaintiff. It is detective trooper Kubutu’s evidence that nothing was found. That was on 15/09/2000. The alleged breaking-in at the ARMOURY, was committed on the night of 13th September 2000. It was discovered by the plaintiff and report made regarding that breaking-in on the 14th September 2000. Plaintiff arrested then and there.
According to Mokhele Rantsatsi the breaking-in was reported to the police who came and attended the scene of the alleged crime. The docket was opened.
According to Mokhele Rantsatsi – They were given instructions that 48 hours are due to expire while plaintiff and Ramashamole are still under arrest. In term of Section …. They should be released. In order to circumvent the effects of that law, plaintiff and his colleague Ramashamole were returned to the Military Police office at HA RATJOMOSE. There according to DW 2 – Rantsatsi, they were given open arrest
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