CIV/APN/37/87

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

JAMES
LEBAMANG MOTAUNG Applicant

and

ATTORNEY
GENERAL 1st Respondent

COMMISSIONER
OF POLICE 2nd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 1st day of August,
1988

On the
20th February, 1987 a rule nisi was issued returnable on the 23rd
February, 1987 calling upon the respondents to show cause
why:

1. The
   respondents shall not there and then produce the body of James
   Motaung before this Honourable Court and to show cause why
   James
   Motaung shall not be released from Police custody.

   
   

2. Alternatively
   if James Motaung is found to be in lawful custody, why the
   respondents shall not permit the relatives of the said
   James Motaung
   to bring food and the change of cloths regularly to him as the Court
   deems fit.

   
   

3. Why
   the respondents shall not be directed to pay costs of this
   application.

   
   

2

On the
23rd February, 1987 the rule was extended to the 2nd March, 1987. On
that day the rule was again extended to the 9th March,
1987. On the
extended return day it turned out that the applicant was released on
the 5th March, 1987 and the rule was discharged.
The only issue to be
decided by the Court was that of costs.

It is
common cause that on the 12th February, 1987 the applicant was
arrested by Maputsoe police who brought him to ' Maseru Central

Charge Office where he was detained until the 20th February, 1987
when he filed this application in the office of Registrar. He

remained in detention until the 5th March, 1987 when he was released
without any charge being brought against him.

In his
founding affidavit the applicant avers that the police never informed
him of the reason and cause of his arrest. He is a
citizen of Lesotho
who is involved in taxi business between Ficksburg and Johannesburg.
He alleges that his detention is wrongful
and unlawful as it has no
basis in law. He says that it will be readily seen from his averments
herein that he was not arrested
in connection with internal security
even though to date, i.e. 20th February, 1987, he had not been
informed of the charge he was
to face.

He
considered the application to be urgent because his business was
suffering while he was in detention as he had no other person
to
attend to it.

The
respondents are opposing this application and one Mr. M. Lehloenya,
the Assistant Commissioner of Police, has filed an opposing

affidavits on behalf of all the respondents. He avers that he ordered
the arrest and detention of the applicant after

3

he
received information, which he verily believed, to the effect that
the applicant engages in subversive activity by transporting
across
the international border between Lesotho and the Republic of South
Africa persons who are planning to subvert the State
for purposes of
surveillance in which the applicant is himself engaged. In pursuance
of this objective the applicant has, amongst
other things, engaged in
passport racketing. He deposes that he has veritable information that
the applicant has on numerous occasions
uttered words calculated to
bring into hatred and contempt His Majesty, His Majesty's Government
and His Majesty's Public officers.

He denies
that the applicant was not informed of the reason of his arrest and
detention. He further deposes that the detention had
a basis in law
in so far as the period of fourteen (14) days had not yet lapsed as
required by section 13 (2) of the Internal Security
(General) Act of
1984. He assured the Court that as soon as the investigations were
finished further necessary legal steps would
be taken in connection
with the applicant.

On the
4th March, 1987 the applicant filed with the Registrar another
application in which he sought an order in the following

terms:

1. Dispensing
   with the periods of notice as required by the Rules of Court on the
   grounds of urgency of the matter;

   
   

2. Directing
   respondents to allow applicant forthwith to consult with his
   attorney of record herein in private in order to enable
   applicant to
   file a replying affidavit, if any, in the main application.

   
   

3. Directing
   respondents to pay the costs of this application.

   
   

4

The
supporting affidavit was made and sworn to by Mr. Pheko, applicant's
attorney. He deposes that on the 28th February, 1987 he
went to the
National Security Services, Maseru with the purpose of applying for
permission to see his client, the applicant, so
that he could take
further instructions which would enable him to reply to the
respondents' opposing affidavit. He was told by
one Warrant Officer
Mohloki that he had to consult with his seniors before he could allow
him to see his client. He gave Warrant
Officer Mohloki his telephone
number and left. He never received any call from Warrant Officer
Mohloki until the 2nd March, 1987
(which was the date on which the
replying affidavit was to be filed) when he received a telephone call
from one Captain Mokhele
of the National Security Services. He
informed him (Mr. Pheko) that he could not see his client because the
Officer-in-Charge of
N.S.S. was out of Maseru.

On the
2nd March, 1987 he asked Mr. Mohapi, counsel for the respondents, to
inform respondents that he would like to take instructions
from his
client in respect of the opposing affidavit and to prepare clients
replying affidavit. Mr. Mohapi promised to talk to
respondents and to
come back to him the same day, but he did not.

On the
3rd March, 1987 he again met Mr. Mohapi and repeated his request. Mr.
Mohapi talked to respondents who said he should apply
to the
Commissioner of Police, who is the 2nd respondent to allow him to
take instructions and settle affidavit with client. Mr.
Mohapi
referred him to regulation 2 (1) of Internal Security (General)
Regulations 1985.

5

He
deposes that he told Mr. Mohapi that that Regulation did not apply in
this matter because applicant had a right in law to reply
to
respondents' opposing affidavit. He further submits that since Mr.
Mohapi is acting for respondents the request he made to him
was as
good as a request made to the Commissioner of Police personally. It
would be unprofessional of him to have direct dealings
with a client
who is legally represented.

In his
affidavit Mr. Mohapi admits that he told Mr. Pheko that he must see
the Commissioner of Police. He tried to contact the Commissioner
of
Police but failed. He avers that the applica­tion to compel the
Commissioner of Police is premature and should be dismissed
because
no request was made to the Commissioner in order to enable him to
exercise his discretion in terms of the Internal Security
(General)
Regulations 1985.

Mr.Mohapi
argued that this application should be dismissed in terms of section
3 of the Indemnity Order No.9 of 1987 which reads
as follows:

"3. (1) Notwithstanding any law to the contrary, no action or
other legal proceedings whatsoever, whether civil or criminal
shall
be instituted in any court of law against,

1. the
   Crown;

   
   

2. an
   officer or member of the Royal Lesotho Defence Force;

   
   

3. an
   officer or member of the Royal Lesotho Mounted Police;

   
   

4. any
   person employed in the public service; or

   
   

6

5. any
   other person acting under the authority of a person so holding
   office or so employed as aforesaid;

   
   

for or on account of, or in respect of any act whatsoever, matter or
thing done during the specified period, and dons or purported
to be
done in the execution of his duty, or within the scope of his
employment, or done for the defence of the Kingdom of Lesotho
or
public safety, or for the prevention or suppression of multy or
internal disorder in any part of Lesotho, or for the maintenance
of
law and order, or otherwise in the public interest.

2. If
   any such proceedings have been instituted whether before or after
   the passing of this Order, they shall forthwith be discharged
   and
   made void and no order for costs shall be made against the Crown or
   persons . specified in subsection (1).

   
   

3. Notwithstanding
   subsections (1) and (2) the Crown is not prevented from instituting
   any proceedings.

   
   

4. For
   the pruposes of this section, certificate issued by the Military
   Council and signified under the hand of the Secretary to
   the
   Military Council that any act, matter or thing was done or purported
   to be done by or under the authority of the persons
   described, and
   for the purposes specified, in subsection (1) during the specified
   period, shall be conclusive proof of matters
   so certified.

   
   

4.

Mr. Pheko
submitted that section 3 of The Indemnity Order 1987 cannot apply to
the present application inasmuch as there was no
certificate issued
by the Military Council and signified under the hand of the Secretary
to the Military Council or any person
designated by the Military
Council in terms of subsection (4). I do not agree with Mr. Pheko's
interpretation of subsection (4).

My
interpretation of subsection (4) is that a certificate issued by the
Military Council is conclusive proof of matters so certified.
It does
not mean that in cases where the Crown has not produced the
certificate in evidence, other relevant evidence which proves
matters
referred to in subsection (1) of The Indemnity Order 1987 cannot be
accepted. It seems to me that the Crown may elect to

7

prove its
case by adducing other evidence other than the certi­ficate
issued by the Military Council. The intention of the Legislature
is
to make it easy for the Crown to prove the matters referred to in
subsection (1) by making the certificate issued by the Military

Council conclusive evidence of the matters so certified.

In the
present case the Crown has elected to prove its case the hard way by
relying on the evidence in the affidavits. Such evidence
has to be
considered by the Court and its weight must be assessed by the court
in the usual way. The Court may come to the conclusion
that such
evidence is unsatisfactory and dismiss the case. If the Crown had
decided to produce a certificate issued by the Military
Council, its
mere production would have been conclusive proof of matters so
certified .

I have
come to the conclusion that section 3 of The Indemnity Order No.9 of
1987 is relevant to the present proceedings and that
on that ground
alone the two applications ought to be dismissed. In terms of section
3 (2) of The Indemnity Order 1987 the applicant
is not entitled to
costs in both applications.

I shall
now deal with the merits of the application . Mr. Pheko submitted
that the applicant was entitled to bring this appli cation
because
after his arrest and detention he was not told the reason why he was
being detained. I was referred to the case of 'Mamokhele
Mohatla v.
Commissioner of Police and 2 others, C. of A. (CIV) 6 of 1983
(unreported) dated the 28th January, 1985 in which the
detainee had
been released at the time the Solicitor-General was served with the
application for his release. Dealing with this
point, Mahomed, J.A.
said at page 2;

8

"This circumstance is not per se a ground on which the Court
would be precluded from ordering costs against the respondents.
The
correct approach is to ask:

1. Was
   the application for the release of the detainee reasonably
   necessary when it was made? (See Thoahlane v. Commi­ssioner
   of
   Police and solicitor General, CIV/APN/9/82 in the High Court of
   Lesotho 15th February, 1982 - unreported).

   
   

2. Was
   the applicant entitled to succeed in the application if the
   detainee had not been released?"

   
   

In the
present case the answer to the two questions will depend on whether I
believe the Assistant Commissioner of Police, Mr. Lehloenya
or the
applicant. Mr. Lehloenya deposes that the applicant was informed of
the reason for his arrest and the sub­sequent detention.
If I
believe his story then it was clear to the applicant that he was
detained under the provisions of the Internal Security (General)
Act,
1984. Section 13 (1) and (2) read as follows:

1. A
   member of the police force may arrest without warrant a person whom
   he reasonably suspects to be a person involved in subversive

   activity.

   
   

2. A
   person arrested under this section shall not be detained by right of
   that arrest for mure than 14 days after his arrest, but
   may be
   further temporarily detained by order of the Commissioner under
   section 14."

   
   

It is
common cause that when the application was brought the period of 14
days had not expired. Having been arrested on the 12th
February, 1987
the applicant had been in detention for only nine (2) days when this
application was filed in the office of the
Registrar.

9

I am of
the opinion that if I believe the evidence of Mr. Lehloenya that the
applicant was informed of the reason for his arrest
and detention,
the application for the release of the detainee was not reasonably
necessary when it was made and the applicant
was not entitled to
succeed in the application if he had not been released. The applicant
would fail because the period of 14 days
had not expired.

The.
applicant deposes that he was not told the reason for his arrest and
detention but his wife deposes that on the 14th February
1987 Major
Setloboko told her that he had interro-gated the applicant but had
not been able to lay a charge against him. So by
the 14th February,
1987 the applicant knew why he had been arrested and detained. He has
failed to disclose in his affidavit the
sort of questions he was
asked while he was in deten­tion. Nor does he claim that during
the entire period of detention he
was not interrogated. The questions
he was asked must have made it clear why he was detained but he has
decided not to disclose
them.

Mr.Lehloenya
says that the applicant was informed of the reason for his arrest and
detention. I have no reason to disbelieve him
because the applicant
has failed to disclose what the interroga­tion was all about and
has not filed any replying affidavit
to refute Mr. Lehloenya's
allegations.

The next
question is whose fault was it that the applicant failed to file a
replying affidavit? Regulation 2 (1) and (2) of the
Internal Security
(General) Regulations 1985 which appear in Legal Notice NO.39 of 1985
provides that the Commissioner of Police
may allow access to a
family, relative, lawyer and medical officer of a detained person;
and may grant such permission in writing
and on such conditions as he
may determine .

10

It is
common cause that Mr. Pheko, applicant's lawyer, never made a request
to the Commissioner of Police that he would like to
see the detainee
in order to get further instructions so that he could prepare a
replying affidavit. His contention is that it
would be unprofessional
to do so because the Commissioner of Police was the 2nd respondent in
the present application and was represented
by Mr. Mohapi. He
submitted that the request he made to Mr. Mohapi was as good as the
one he would have made to the Commissioner
of police.

I do not
agree with the submission that it would be unpro­fessional to
have direct dealings with the Commissioner of Police,
in a matter
like the present one, on the following grounds: Firstly, Mr. Pheko
had the permission of Mr. Mohapi to have direct
contact with the
Commissioner of Police. I think Mr. Pheko was right to first contact
2nd respondents' attorney but having obtained
permission to see him,
I do not think there was anything unprofessions about it.

Secondly,
I am of the opinion that ethics of the legal profession cannot
averride a statutory provision. The Regulations give the
Commissioner
of Police discretion to do certain things at the instancy of certain
people and I think that such people cannot be
barred from seeing the
Commissioner by ethics of the legal profession.

For the
reasons stated above the application that the respon­dents should
be ordered to pay costs of the main application is
all-missed with
costs to the respondents. The second application is also dismissed
with costs to the respondents.

J.L.
KHEOLA

JUDGE

1st
August, 1988.

For
Applicant - Mr. Pheko

For
Respondent - Mr. Mohapi.

11

J.L.
KHEOLA

JUDGE

1st
August, 1988.

On 1st
August, 1988 No appearances: Judgment delivered.

J.L.
KHEOLA

JUDGE

1st
August, 1988

For
Applicant - Mr. Pheko

For
Respondent - Mr. Mohapi