IN THE
HIGH COURT OF LESOTHO

In the
Application of :

CHEMANE
MAHASE Applicant

and

THE
COMMISSIONER OF POLICE 1st Respondent

THE
ATTORNEY-GENERAL 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 16th day of October, 1988.

This is
the extended return day of a Rule Nisi granted on 5th October, 1988
calling upon the Respondents to show cause why -

1.a) The first Respondent shall not be ordered to produce before this
court the body of the Applicant, Chemane Mahase, who should
be
released from the police custody forthwith;

b) The first Respondent and or all officers subordinate to him
shall not berestrained from assaulting, interrogating illegally,

debilitating, exhausting, torturing and or impairing the mental and
or physical health of the said Chemane Mahase while in Police

custody;

2

3. The
   first Respondent and or officers subordinate to him shall not be
   ordered to allow applicant to see and give ins­tructions
   to his
   Attorney and or counsel whilst in police custody;

   
   

4. The
   first Respondent and or officers subordinate to him shall not be
   ordered to allow Applicant to see and be exa­mined by
   a Medical
   Practitioner of his own choice;

   
   

5. The
   form and service provided for in the Rules shall not be dispensed
   with;

   
   

6. The
   Respondents shall not be ordered to pay costs hereof at an Attorney
   and client scale;

   
   

7. The
   Applicant shall not be given such further and or alternative relief
   as the court may deem fit;

   
   

2. Prayer
   1 (b) shall not operate with immediate effect as an interim order.

   
   

The
Respondents intimated their intention to oppose confirmation of the
Rule Nisi. It is significant to note that no founding affidavit
has
been filed by the applicant. Instead supporting and replying
affidavits have been deposed to by both Pule Mahase and Motlatsi

Mahase who claim to be the applicant's younger brother and the elder
brother, respectively.

3

On behalf
of the Respondents the answering affidavits are deposed to by James
Lebitso Dingiswayo who avers to be the first Respondent,
Detective
Major Koza, the Head of the C.I.D. in the Royal Lesotho Mounted
Police Force, Makhula Augustinus Mosakeng, the Deputy
Director in the
National Security Service of Lesotho and Tsepo Thompson (Nkuebe, a
Lance Sergeant-in the National Security Service
of Lesotho.

The
averments of Motlatsi Mahase are to the effect that following
information that the Lesotho Police were looking for him he was,
on
28th September, 1988, handed over to Detective Major Moza by his
Legal Counsel, He was kept in Major Koza's office until 8.00
p.m.
when two white South African Policemen armed with guns arrived. He
was covered with a blanket on the head and put into a motor
vehicle
which drove to Ladybrand in the Republic of South Africa. At
Ladybrand he was brutally assaulted and tortured by the South
African
Police as well as the Lesotho police officers. Thereafter he was
moved to various places in the Republic of South Africa
throughout
the night. As they illtreated him his assailants informed the
deponent that they were looking for the applicant who
was a criminal
and should also go through the same treatment. At about 3.00 a.m. on
29th September, 1988 the deponent was left
in the veld at a place
called Sekamaneng in the district of Berea (Lesotho)from where he had
to foot it to his home at

4

Khubetsoana.

In his
answering affidavit Major Koza conceded that Advocate Phafane brought
to him Motlatsi Mahase whom he wanted to question in
connection with
certain cases of robbery reported in Quthing and Teyateyaneng. It
was, however, on 27th September, 1988 and not
28th September, 1988, a
fact which is denied by Motlatsi Mahase in his replying affidavit.

Be that
as it may, Major Koza went on to depose that at about 4.45 p.m. on
the day in question he released Motlatsi Mahase and warned
him to
report again the following morning together with his brother, Chemane
Mahase, the present applicant. He denied, therefore,
Motlatsi's
aver­ment that at 8.p.m. he was still in the C.I.D. office from
which two white South African Police officers conveyed
him to
Ladybrand, in the Republic of South Africa, where he was allegedly
assaulted and tortured before being dumpted in the veld
at
Sekamaneng. Indeed, on the following day, 28th September, 1988 both
Motlatsi and Chemane did report at his office when, on information

derived from his department' investigations, the latter was charged
with the crime of car theft and taken by police to the magistrate

court for remand. He appeared before the court under C.R. 1023/88 as
evidenced by annexure "1" - copy of the charge sheet.
After
he had

5

been
remanded by a magistrate Chemane came back to his office and Major
Koza then allowed him to go home. That was the last time
he (Major
Koza) saw the applicant, Chemane. He denied, therefore, that
applicant was in the detention of the Royal Lesotho Mounted
Police.

It is
worth noting that according to Annexure "1" when on 28th
September, 1988 he appeared before the magistrate court
Chemane was
only informed of the charge against him and remanded to 13th October,
1988. Although there is no indication that he
was released on bail it
can be assumed that Chemane was certainly not remanded in custody.
This is particularly so, if Major Koza's
averment, that after he had
been taken to the magistrate court for remand, Chemane came to report
at his office on the sama day,
28th September, 1988, were borne in
mind.

Assuming
the correctness of the averment that the Lesotho police took Chemane
to the magistrate court where he was remanded out
of gaol and allowed
to return home, it must be accepted that they knew where to find him
if and when they wanted him. That being
so, Motlatsi's suggestion
that his assailants, on the night of 28th September, 1988, amongst
whom were members of the Royal Lesotho
Mounted Police brutally
assaulted and tortured him because they were looking for Chemane, the
alleged criminal, does not make sense.
In any event,

6

he has
not even substantiated this serious allegation of assault and torture
by medical report. I find it highly incredible that
on 28th
September, 1988 Motlatsi could have been brutally assaulted and
tortured, as he wants this court to believe, and yet on
5th October,
1988 when he deposed to his supporting affidavit no medical report of
any sort was annexed as proof thereof.

In his
supporting affidavit, Pule Mahase averred that at about 9.00 a.m. on
2nd October,1988 a number of police officers in plain
clothes and
acting in the course of their duties as employees of the Respondents
came to the applicant's home at Khubetsoena on
the outskerts of
Maseru, They produced their identification cards and he clearly
remembered two of them as being Ramphashane Mosakeng
and E.M. Nkuebe
of the Royal Lesotho Mounted Police. For no disclosed charge the
police officers told the applicant, Chemane that
he was under arrest
and took him away.

Ever
since the afternoon of that day, 2nd October. 1988, the deponent has
been going to the officers of the first Respondent in
an attempt to
ascertain the fate of the applicant,Chamane, but all in vain. Each
time he seeks to meet the said police officers
(presumably
Ramphashane Mosakeng and E.M. Nkuebe) at the officers of the first
Respondent he is informed by, "other"
police officers that
they are either on sick leave or off-duty.

7

He is
also informed by applicant's attorneys that all their attempts to
meet the applicant for further ins­tructions have been
futile.

The
deponent further avers that the applicant, Chemane, has been arrested
by and is in the unlawful detention of the first Respondent
and or
officers subordinate to him. He has great apprehension that if still
alive the applicant has been brutally assaulted by
the police and
that is the reason why they cannot al­low him (deponent) or his
(applicant's) lawyers access to him. Consequently
he prayed the court
for an order as aforementioned.

It is
significant to note that neither the "other" police
officers, who allegedly informed the deponent that Ramphashane

Mosakeng and E.M. Nkuebe were either on sick leave or off-duty nor
indeed, the applicant's attorneys who claimed that their attempts
to
see applicant were futile have filed any affidavit to confirm the
deponent's story. What they have told him is, therefore, hearsay
and
of no evidential value.

As has
been pointed out earlier, the first Respondent has filed, on behalf
of the Respondents, the opposing affidavit in which he
deposes that
he is the Commissioner of the Royal Lesotho Mounted Police. He denies
any knowledge that the applicant,

8

Chemane,
has been arrested and detained by members of his Police, Force as
averred in the supporting affidavits of Motlatsi Mahase
and Pule
Mahase. Indeed, to the bust of his knowledge and recollection there
are no police officers in the Royal Lesotho Mounted
Police bearing
the names of Ramphashane Mosakeng and E.M. Nkuebe.

The first
Respondent is supported in this regard by two other police officers
who depose that although their surnames are Mosakeng
and Nkuebe their
names are, respectively, Makhula Augustinus and Tsepo Thompson and
certainly not Ramphashane and E.M. They denied,
therefore, that they
were among the police officers who, on 2nd October, 1988,allegedly
arrested and took away the applicant from
his home at Khubetsaone as
described in the affidavits of Pule and Motletsi.

According
to Makhula Augustinus Mosakeng he is the Deputy Director in the
National Security Service Branch of the Royal Lesotho
Mounted Police.
It has never been the practice for an officer of his rank to
personally go out and arrest a criminal suspect. Even
if the need
arose for the applicant Chemane, to be arrested,he, Makhula
Augustinus Mosakeng would have detailed some junior officer
to do the
Job.

The
affidavit of Tsepo Thompson Nkuebe is also to the effect that on
Sunday, 2nd October, 1988, he was approached at his home by
two men.
After telling them his names one of the two men showed him a piece

9

of paper
on which the words E.M. Nkuebe were written and asked whether he knew
a person by that name. He replied in the negative
and the two men
left.

Although
he overs that the people who arrested and took away the applicant, on
2nd October, 1988, produced their identification
cards and were
members of the Royal Lesotho Mounted Police, Pule has not dis­closed
the numbers on any of those identification
cards. In all
probabilities he did not closely scrutinise the identification cards.
It is, therefore, not easy to say with any
degree of certainty who of
the members of the Royal Lesotho Mounted Police.(if any at all) were
the police officers concerned.

Likewise
his averment that he clearly remembered two of the police officers as
being Ramphashane Mosakeng and E.M. Nkuebe of the
Royal Lesotho
Mounted Police is denied as improbable by the first Respondent,
Makhula Augustinus Mosakeng and indeed, Major Koza
who are
respectively, the Commissioner of Police, the Deputy Director of the
Notional Security Service in Lesotho and the Head
of the C.I.D. They
have all solemnly declared that there are no Mosakeng and Nkuebe by
the names of Ramphashane and E.M. respectively,
in the Royal Lesotho
Mounted Police.

It has
been argued that all these police officers have not deposed to the
truth in their affidavits which must be disbelieved. It
must be borne
in mind, however,

10

that the
Commissioner of Police, the Deputy Director of the National Security
Service in Lesotho and the Head of the C.I.D. are
all entrusted by
law with responsible duties in the Police Force of this country.
Their averment, on oath that there are no Mosakeng
and Nkuebe by the
names of Ramphasane and E.M. respectively, in their Police Force must
not be lightly viewed. Any attempt on their
part to conceal from the
court the truth that there are, in the Royal Lesotho Mounted Police,
Ramphashane Mosakeng and E.M. Nkuebe
who have arrested and unlawfully
detained the applicant would, no doubt, be deliberate interference
with proper administration
of justice in this country and a
commission of a criminal offence.

It has
further been argued that a proper cause to follow in this case is for
the court to order viva voce evidence. In my view the
golden rule in
appli­cations of this nature is that the parties stand or fall on
the affidavits filed before the court. The
discretion which the court
has to order viva voce evidence or convert the application into an
action must always be exercised judicially
and not whimsically. Where
a fair decision can be arrived at on the papers placed before the
court it will not be proper to order
viva voce evidence or convert
the application into an action.

11

In the
instant case the main relief sought by the applicant is an order for
Habeas Corpus or Interdictum de homine libero exhibendo.
To succeed
in such applica­tion, it must be proved that the applicant is
being un­lawfully detained by the police or, for
that matter,
anybody who must, therefore, be ordered to produce the applicant
before the court upon a charge/charges in respect
of which he had
been arrested and detained. In my view the onus of proof that the
applicant has, since 2nd October, 1988, been
arrested and unlawfully
detained by the first Respondent and or officers subor-dinate to him
rests squarely on the shoulders of
the applicant. On the papers
before me I am however, not convinced that he has on a balance of
probabilities, satisfactorily discharged
that onus.

Indeed,
as has been stated earlier, the applicant himself has filed no
founding affidavit what­soever in support of his prayers
in the
notice of motion. The possibility that he was arrested and taken
away, on 2nd October, 1988, by some people who impersonated
the
police or that following his remand out of gaol, on 28th
September,1988, he absconded and is still at large cannot in my view

be ruled out. That alone is sufficient to dispose of this matter and
it will be purely academic to deal with other issues in this

application.

12

Consequently
I come to the conclusion that on the affidavits before me the
applicant has failed to make a case for the relief of
habeas corpus
and the rule is accordingly discharged with costs,

B.K.
MOLAI

JUDGE

18th
October, 1988.

For
Applicant : Mr. Mohau

For
Respondent : Mr. Lenono.