C. of A. (CIV) No. 27 of 1988
IN THE LESOTHO
COURT OF APPEAL

In the Appeal of:

JOHNNY
WA KA MABEKO Appellant

and

ATTORNEY-GENERAL 1st Respondent

COMMISSIONER OF POLICE 2nd Respondent

Held at Maseru Coram:

Schutz, P Mahomed, J A Ackermann, J A

JUDGMENT Ackermann, J A

This appeal is concerned, in the main, with the validity
of appellant's arrest and detention, purportedly in terms of the
provisions
of s. 13(1) of the Internal Security (General) Act of
1984, which arrest and detention occured on or about the 14th
November 1988.

On the 21st November 1988 the appellant caused an
application to be launched as a matter of urgency against the two
respondents in
which an order was sought in the following terms:

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"(a) Dispensing with the periods of notice required
by the rules of court on the grounds of urgency of this matter;

(b) Directing Second Respondent and/or officers
subordinate

to him to produce the body of Applicant before this
Honourable Court so that Applicant may be dealt with in accordance
with law;

(c) Alternatively to (b), directing Second
Respondent

and/or officers subordinate to him to release Applicant
forthwith;

(d) Alternatively to (b) and (c), directing Second

Respondent and/or officers subordinate to him to
formally charge Applicant and take him forthwith before a court of
competent jurisdiction
in order that Applicant may be dealt with in
accordance with law;

(e) Alternatively to (b), (c) and (d), directing Second

Respondent and/or officers subordinate to him to allow
Applicant's attorney of record herein to take instructions from
Applicant and
settle Applicant's affidavit or any other court process
in private;

(f) Alternatively to (b), (c), (d) and (e),
directing

Second Respondent to exercise his discretion forthwith,
in view of the urgency of the matter, pursuant to regulation 2 of the
Internal
Security (General) Regulations 1985;

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(g) Directing Respondents to pay the costs of
this Application."

The application was opposed by both respondents.

On the 25th November 1988 the High Court granted an
order in terms of prayer (a) and (b) of the Notice of Motion. On that
day the
matter was postponed to the 1st December 1988. Appellant's
attorney experienced difficulties, however, in consulting
privately with the appellant and on the 1st December 1988 a further
order was made

"granting applicant an opportunity to consult in
privacy with his attorney in order to settle his replying affidavit."

and postponing the hearing of the matter to 6th December
1988. The matter was eventually argued on the 9th and 10th December
1988.
On the lastmentioned date Lehohla, J. made a finding and
granted an order, apparently intimating that reasons would be filed
later.
Such reasons were filed on the 13th June 1989. While the terms
of the finding and order actually made on the 10th December 1988 do
not appear from the record, they are presumably the same as those
recorded in the reasons for judgment as follows:

"The detention is held to be lawful. The interim
court order authorising reasonable access to the applicant is
confirmed with
5% costs. The rest of the costs are awarded to
respondents."

The following facts were common cause or not in dispute:

4

At all material times appellant, though not a national
of Lesotho, resided in Maseru and was the proprietor and pub!isher
of "The
Mirror", a newspaper circulating in the
Kingdom of Lesotho. When the application was effectively dismissed
on the 10th December 1988, appellant
was deported from the Kingdom of
Lesotho. On the 9th September 1988 appellant caused to be published
in "The Mirror",
a report in which allegations were made
concerning the relationship between certain Chief Evaristus
Sekhonyana, the then Minister
of Finance, and a certain Italian
company called "Benco". The report alleged, inter
alia that Benco had swindled Lesotho out of millions of Maloti;
that Chief Sekhonyana had a close relationship with BENCO; that on
four
occasions in the months of January and February 1981 he had
helped Benco to transfer more than two million Maloti from the
Company's
account at Lesotho bank into an account in Switzerland and
that a few days after these transfers, Benco's account dried up
and
that the company was subsequently liquidated. In
consequence of this report appellant was charged with criminal
defamation
and released on bail. One of the conditions of bail was
that appellant was not to comment in his newspaper on the criminal
defamation
charge. Subsequent to the appellant's release on bail a
report appeared in appellant's newspaper stating the fact that
appellant
had been charged with criminal defamation. On or
about the 14th November 1988 appellant was purportedly arrested by a
member
of the police force, and handed to Lieutenant Metsing at
police headquarters. At appellant's request the police took him to
his
attorney's office. His attorney was not there and appellant left
him a

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note. Appellant was taken back to police headquarters
where he remained until brought before court on 1st December 1988. He
did not
see his attorney before then. In order to give instructions
to his attorney, on the basis whereof the founding affidavit dated
the
21st November 1988 was drawn, appellant passed information to his
attorney through friends and relatives who visited him in detention.

It is trite law that when the liberty of an individual
has been restrained or limited and the person whose 1iberty has been
so affected
challenges the validity of such restraint or limitation,
as the appellant in this case has challenged his arrest and detention
by
the police, the onus of establishing the lawfulness thereof is on
the arrestor or the person who

caused the arrest. (Minister of Law and Order and
Another v. Parker 1989 (2) S.A. 633 (A) at 637 and the
authorities there cited).

In the present case second respondent, who caused
appellant to be arrested and detained seeks to justify appellant's
detention by
reliance upon the provisions of s. 13(1) of the Internal
Security Act which provides that:

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

There is no affidavit or explanation from the member of
the police force who physically arrested appellant.

The reasons advanced by second respondent in his
answering affidavit for causing appellant to be arrested must be

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pieced together from various part of the affidavit
which, in many respects, is obscure. In this affidavit second
respondent details
certain investigations which he conducted into
appelant's activities during the latter half of 1988. He says he
received credible
information that appellant had been indulging in
subversive activities as defined in the Internal Security Act, 1984.
He became
aware of reports published by appellant in "The
Mirror" from the 9th September 1988 to the 13th September
1988 (only
the report published on the 9th September 1988, to which
reference has already been made was proved in the answering
affidavits).
Various allegations in the newspaper report of 9th
September 1988 are based on copies of documents which were annexed to
the papers.
It is common cause that these documents had at some
stage prior to 9th September 1988 come into appellant's possession
and were
subsequently handed by appellant to Major Petlane. They
were six in number and featured as annexures to the affidavit of
Captain
Motaung. Two were copies of invoices on the letterheads of
Benco and addressed to the Government of Lesotho and four were
applications
by authorised dealers to sell foreign currencies and
addressed to the Lesotho Bank. Referring to these documents in his
answering
affidavit second respondent says the following:

" I carefully studied the documents and I was
startled to find that they referred to a highly secret Government
Project which
had a direct bearing on national security. There can be
no doubt that the publication of that report was highly detrimental
to national
security and the Applicant's possession of a photo-copy
of such a highly sensitive document which was in the custody of
Central Bank
of Lesotho made me very apprehensive"

7

I find this passage obscure and unsatisfactory. The
reference merely to "that report" (which is obviously a
reference to
one of the two reports to which the deponent has
previously referred) makes it impossible to determine whether he is
referring to
the report in "The Mirror" of the 9th
September 1988 (which is before Court) or the other report which is
not. The reference
to "documents" which "referred
to a highly secret Government Project" in the earlier part of
the above passage becomes confusing when
contrasted with the
appellant's possession of "a highly sensitive document" in
the latter part. Did all the documents refer
to a highly secret
government project or only one; and if only one, which one? Which one
of the documents made second respondent
apprehensive? Moreover the
one "highly sensitive document" becomes "these
documents" again in the next sentence
of paragraph 12 which
"must have been leaked to the Applicant by any employee of the
Central Bank".

In paragraph 8 of his answering affidavit second
respondent makes the bald statement that

"Credible information continue to reach me and the
Royal Lesotho Intelligence Service that the Applicant, in the latter
half
of the year 1988, had been indulging in subversive activities as
defined in the Internal Security (General) Act 1984 (Act No, 24
of
1984)"

and in paragraph 12 there is an equally bald reference
to

"credible information that the Applicant was
indulging in acts of espionage directed at the very country which had
granted him
sojourn".

8

This notwithstanding, the second respondent, in the last
sentence of paragraph 12 justifies the arrest of appellant as
follows:

"The fact that the Applicant who claims to be a
refugee, having in his possession highly sensitive documents
belonging to the
state, and his acts of publishing demonstrably false
statements and accusations against members of the Government of
Lesotho, coupled
with credible information that the Applicant was
indulging in acts of espionage directed at the very country which had
granted him
sojourn, made me to come to the conclusion that his
subversive activities should be thoroughly investigated and that firm
and deterrent
action should be taken to protect and preserve national
security. I accordingly ordered the arrest of the Applicant in terms
of the
powers vested in a member of the Police Force by s.13(1) of
the Internal Security (General) Act of 1984."

In paragraph 16 the second respondent states that he
"reasonably and honestly believed that he (i.e. the appellant)
was a person
involved in subversive activity" and in paragraph 7
that he was "in possession of a considerable body of objective
facts
on which I based on (sic) reasonable suspicion that the
Applicant was involved in subversive activity. I am however unable to
disclose
them at this stage as they would be prejudicial to public
interest and public safety."

Upon a synthesis and an analysis of all these averments
it would seem that second respondent justifies the arrest of
appellant in
terms of s.13(1) of the Internal Security Act because of
reasonable belief and suspicion that the appellant was involved in
subversive
activities because:

9

1. second respondent had credible information that the
applicant was indulging in acts of espionage directed at the Kingdom
of Lesotho;

2. second respondent had credible information that the

appellant had been indulging in subversive activities as
defined in the Internal Security Act;

3. appellant had published in "The Mirror" a
report or

reports which were highly detrimental to national
security;

4. appellant
had in his possession highly sensitive

documents belonging to the state;

5. appellant had published in "The Mirror"
demonstrably

false statements and accusations against members of the
Government of Lesotho.

On appeal the following contentions were advanced:

1. That second respondent had not in law discharged the
onus of establishing the lawfulness of appellant's arrest and
detention in
terms of s. 13( 1 ) of the Act for the following
reasons:

(a) There had not been a proper arrest of appellant
because appellant had not, at any stage material to these
proceedings, been informed
by or on behalf of the person arresting
him of the reasons for his arrest;

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(b) in terms of 8.13(1) of the Act is is the person who
arrested appellant who had to entertain the reasonable suspicion that
appellant
was a person involved in subversive activity. On the
facts neither police officer Lethunya, who arrested appellant,
nor Lieutenant
Metsing, who apparantly took appellant into detention
at police headquarters had any such suspicion. There is no
evidence
that any other member of the police force who was physically
involved in appellant's detention entertained such a suspicion. The
only person who entertained a suspicion that appellant was involved
in subversive activity was second respondent, the Commissioner
of
Police. He was not the person who arrested appellant, he merely
caused his arrest, and therefore the section had not been complied
with;

(c) alternatively, and if it is held that it was second

respondent who in truth arrested the appellant, then
such arrest was bad in law because, on a proper construction of Part
III (ss.
13 to 24 of the Act), the second respondent, as Commissioner
of Police, was not entitled to arrest appellant;

(d) on the facts second respondent did not discharge the

onus of proving that this suspicion that appellant was a
person involved in subversive activity was reasonable.

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2. On
the papers there was a material conflict of fact

which could not be resolved without the hearing of oral
evidence.

3. In
the alternative to 1 and 2, and in the event of it

being found that appellant's arrest and detention had
correctly been found to be lawful by the Judge a quo, the Judge had
misdirected
himself in only awarding appellant 5% of his
costs.

In order to deal with some of these issues it is
necessary to construe certain provisions in the Internal Security Act
against the
general background of the scheme of the Act.

The long title of the Act is

"To consolidate and amend the law relating to
internal security in Lesotho".

While ss. 13 to 24 of the Act deal with the arrest
without warrant of a person suspected of being involved in subversive
activity,
the interim custody and later detention of such a person
and matters relating thereto, the other provisions of the Act are
wide ranging
and inter alia create a plethora of statutory crimes.
Sections 4 and 5 enact a number of crimes relating to essential
services. Apart
from the definition of "essential service"
in s.3(1) (a) to (f) the Minister may by notice in the Gazette
declare other
services to be essential services. Section 6
establishes the offence of sabotage and ss. 7, 8 and 9 respectively
establish the offence
of subversion and offences involving

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contributions to subversive activities and failure to
furnish information about subversive activities.

Section 10 provides for the declaration of certain
organizations as unlawful and s.11 enacts various offences in
relation to unlawful
organizations.

Part IV (ss. 25 to 37) enacts a large number of offences
including offences relating to going armed in public (s. 25);
offensive conduct
conducive to breach of the peace (s. 27);
incitement to violence and disobedience (s. 28); intimidation or
annoyance (s. 29); a variety
of acts, 13 in all, detailed in s. 30
and somewhat euphemistically described in the rubric to the section
as "Idle and disorderly
persons" ranging from public
indecency, soliciting for immoral purposes, betting, gaming,
committing a nuisance in a public
place, defacing buildings and
walls, to suspicious activities at night, being in suspicious places,
possessing suspicious objects,
etc.; provoking breaches of the peace
(s. 31); nuisance by drunken persons (s. 32); criminal trespass (s.
33); incitement to public
violence (s. 34); consorting with a person
carrying arms or explosives (s.35); impersonating a public officer
(s.36); wearing certain
uniforms (s. 37).

Part V (ss. 38-44) deals with various offences relating
to protected places, vehicles and aircraft.

13

Part VI (ss. 45-52) embodies offences relating to
dangerous weapons, military drilling, explosive, incendiary and
corrosive devices
and bombs.

Part IX (ss. 64-73) deals, inter alia, with
offences relating to the disruption of lawful meetings and
processions and to unlawful meetings and processions.

The scheme of part III of the Act (ss. 13-23) insofar as
it might be relevant to the present appeal is as follows:

In terms of s. 13 a member of the police force may
arrest without warrant a person whom he reasonably suspects to be a
person involved
in subversive activity but a person arrested under
this section may not be detained for more than 14 days. In terms of
ss. 14(1)
the Commissioner may, in particular circumstances, make an
"interim custody order" for the further temporary detention
of that person for a period not exceeding 14 days. For the sake of
clarity I would point out at this stage that, after specified
procedures have been followed, the Minister may in terms of ss. 19
(1) make a "detention order".

Both ss.14(3) and ss. 19(2) provide in identical terms
(with the exception of two words in the proviso to which I shall
later allude)
that:

"If a person is detained under an interim custody
order and a detention order is not made in respect of that person
within 14
days following the date of the interim custody order, that
interim custody order shall cease to have effect and the person
detained
shall be released

14

It is not clear to me why this provision was duplicated
in ss. 19(2).

Although the proviso to 14(3) is not germane to the
present appeal I shall refer thereto because it contains an obvious
typographical
error, both in the Act as published as supplement No.1
to Gazette No. 34 of 7th September 1984 and in the original Act
lodged with
the Ministry of Justice.

This proviso reads -

"unless he is in custody under some other provision
of this or any other law or is arrested under this Part or
information, other than, or for reasons, other than, those stated
under s. 17(1) in respect of the interim custody order." (My
underlining).

It is patently obvious that the word "or" is a
clerical error and should in fact read "on". This is
confirmed
by the proviso to ss. 19(2) where the proviso reads -

" unless he is in custody under some other

provision of this or any other law or is arrested under
this Part on information other than that or for reasons
other than those stated under s. 17(1) in respect of that interim
custody order." (My underlining).

15

It is to be observed that the underlined word "that"
does not appear in 5. 14(3) but its omission makes no difference to
the sense of the proviso. There is ample authority for the view that
in construing ss. 14(3) one may and indeed must read "on"
for the word "or". (See Maxwell on Interpretation of
Statuses, 11th ed. p 243).

Returning to the scheme of Part III it is therefore
clear that unless the Minister makes a detention order "within
14 days following
the date of the interim order" and subject to
the proviso, then the person in custody must be released.

SS. 16(1) provides that -

"The Minister may at any time before the
expiration of the period of 14 days following the date
of an interim custody order refer the case to an adviser as
appointed in terms of s.15." (My underlining).

Section 18 provides for the manner in which the adviser
must "independently and impartially" consider the
detainee's case
and report to the Minister. Section 17 provides that
as soon as possible after a case has been referred to an adviser the
person
detained "shall be served with a statement in writing of
the activities of which he is suspected" whereupon the detained
person may, within seven days following the date on which he receives
such statement, send to the Minister written representations
concerning his case or a written request that he be seen personally
by an adviser. A copy of these representations or request must
be
sent to the adviser and the adviser must, in terms of ss. 18(2), and
before reporting to the Minister, have regard,

16

inter alia, to oral and written
representations made by the person detained. After receiving the
adviser's report the Minister must in terms of
ss. 19(1) consider the
case of the person to whom it relates and may make an order for the
detention of that person "if the
Minister is satisfied that he
has been involved in subversive activities and that his detention is
necessary for the investigation
of those activities with a view to
criminal proceedings before a Subordinate Court or the High Court."
Such a detention order
must, in terms of ss. 19(3), be signed by the
Minister or such other person as the Minister may designate and the
period of such
detention order may not exceeding 14 days following
the date of that detention.

The phrase "14 days following the date of" is
used both in ss. 14(3) and 19(2) in relation to the interim custody
order
and in ss. 19(3) in relation to the detention order. In my view
the meaning of this phrase in both contexts is quite clear. It
describes
a period of 14 days which commences on the date on which
the order in question comes into operation.

The import of all these provisions is to the effect that

unless a detention order is made within 28 days of the

initial arrest of the person in question, such person
must
be released.

It will require very prompt action on behalf of the
police authorities for a detention order to be duly made within these
time limits,
when all the procedures must be carried

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out within the period of 14 days commencing with the
interim custody order. It may be possible for the Minister to refer
the case
on the first day of the interim custody order to an adviser,
and simultaneously to serve his written statement on the detainee.
The
detainee still has 7 days within which to send his written
representations or requests to the Minister. Within the remaining 7
days
the representations must be sent to the adviser, the adviser
must consider the case, report to the Minister and the Minister must
consider whether to issue a detention order and then issue it. Of
course, on the assumption that there are circumstances under which
detention without trial can be justified, then it is absolutely
essential that the period of such detention be limited to the
absolute
minimum. The provisions I have referred to appear to be an
attempt to do so.

Before dealing specifically with the issues which fall
to be determined, reference must be made to the provisions of ss.
3(3) of the
Act, because it was urged upon us that these provisions
limit the manner in which the other provisions of the Act have to be
construed.
SS 3(3) provides that

"No rule of law and no enactment other than this
Act shall be construed as limiting or otherwise affecting the
operation of any
provision of this Act for the time being in force
but, subject to the foregoing, any power conferred by this Act shall
not derogate
' from His Majesty's prerogative".

It was contended that this meant inter alia
that the Court ought not to interpret strictly those provisions
of the Act which made inroads on the fundamental rights, nor in cases
of ambiguity, adopt a construction in favour of the liberty

18

of the individual. In the very first place, however,
the provisions of ss. 3(3) have themselves to be interpreted, and
there is,
in my view, no reason why they should not be contrued
according to the normal rules of construction, including those
referred to
above. The provisions of ss. 3(3) are themselves
ambiguous, particularly the phrases "no rule of law and no
enactment other
than this Act" and "limiting or otherwise
affecting the operation of any provision of this Act",
particularly when
these phrases are related to one another. In my
view it cannot mean that the Court is precluded from applying the
ordinary rules
of statutory constructing. If one were to exclude or
limit the ordinary rules of construction the question immediately
arises as
to what legal rules must apply? The only answer to this
question would be that there would be no legal rules that the
Court could apply. In other words the Court would be enjoined to act
arbitrarily. I cannot conceive that this could
ever have been the
intention of the legislature. As long as courts exist and function
they must apply the law. To act arbitrarily
is wholly at variance
with the most fundamental duty of any court in any legal system with
any pretention to calling itself civilized.
If a court would attempt
to do so, it would no longer be acting as a court. As long as courts
exist, they must apply the law. The
only way that the legislature
can avoid this, is by abolishing courts altogether, or by entirely
excluding the jurisdiction . of
the courts in relation to certain
matters. Whatever the intention of the legislature might have been,
it quite obviously did not
do so in the present case. In my view,
and at the very highest for the Crown, this ss. did no more

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than enact that where there is a clear conflict between
the provisions of this Act and any rule of the common law or
statutory enactment,
the provisions of this Act have to take
precedence. The ss. does not apply in any way to the legal rules of
statutory construction,
whatever those rules may be.

I now proceed to deal specifically with the issues
outlined earlier in this judgment.

1 (a) Was appellant at any time material to his
arrest. informed by or on behalf of the person arresting him
of the reasons for his arrest and if not, did such failure
render the arrest unlawful?

SS 13(1) of the Act in question does not provide how the
arrest is to be carried out. Apparently the matter has not previously
been
considered by this Court or the High Court. Although the
provisions of the Criminal Procedure and Evidence Act 1981 have, by
virtue
of the provisions of ss. 13(3) of the Internal Security Act,
been excluded from applying to a person "detained by reason of
an arrest under this section" it is clear that its provisions
still apply to the arrest itself. SS 32(4) of the Criminal Procedure
and Evidence Act 1981 provides that whenever a person effects an
arrest without a warrant "he shall forthwith inform the arrested
person of the cause of the arrest". SS 32(4) only applies, in my
view, to the specific cases mentioned in sections 23 to 31
where
persons are authorised to make an arrest without a warrant. An
arrest in terms of ss. 13(1)

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of the Act in question is not one of the types of arrest
referred to therein (cf Ngqumba en 'n Ander v.
Staatspresident en Andere 1988 (4) S.A. 224 (A) at 265
E-F.)

In Christie v. Leachinsky (1947) 1 All E.R. 567
(H.L.) the House of Lords held that at common law, when a policeman
arrests without a warrant he must in ordinary
circumstances inform
the person arrested of the true ground of arrest. He is not entitled
to keep the reason to himelf or to give
a reason which is not the
true reason. In other words, a citizen is entilled to know on what
charge or on suspicion of what crime
he is seized, but that when the
circumstances under which he is arrested are such that he must know
the general nature of the alleged
offence for which he is detained,
the person arresting him need not inform him thereof.

At p. 573 A Viscount Simon, with whose opinion the other
Law Lords expressed agreement, pointed out that:

"The requirement that he (the arrestee) should be
so informed does not mean that technical or precise language need be
used.
The matter is a matter of substance, and turns on the
elementary proposition that in this country a person is, prima
facie, entitled to his freedom and is only required to submit to
restraint on his freedom if he knows in substance the reason why it
is claimed
that this restraint should be imposed"

and at p. 573 C-E expressed himself in the following
terms which are of particular relevance to the present case:

"If a policeman who entertained a reasonable
suspicion that X had committed a felony were at liberty to arrest him
and march
him off to a police station without giving any explanation
of

21

why he was doing this, the prima facie right of personal
liberty would be gravely infringed. No one, I think, would approve a
situation
in which, when the person arrested asked for the reason,
the policeman replied: "That has nothing to do with you. Come
along
with me." Such a situation may be tolerated under other
systems of law, as, for instance, in the time of lettres de cachet in
the eighteenth century in France, or in more recent days when the
Gestapo swept people off to confinement under an overriding authority
which the executive in this country happily does not in ordinary
times possess. This would be quite contrary to our conceptions of
individual liberty. If I may introduce a reference to the well known
book, Dalton's Country Justice that author, dealing with arrest
and
imprisonment, says: "The liberty of a man is a thing specially
favoured by the common law". There are practical considerations,
as well as theory, to support the view I take. If the charge on
suspicion of which the man is arrested is then and there made known
to him, he has the opportunity of giving an explanation of any
misunderstanding or of calling attention to other persons for whom
he
may have been mistaken, with the result that further enquires may
save him from the consequences of false accusation."

In South Africa reg. 3(1) of the emergency regulations
made by the State President in terms of s. 3 of the Public Safety Act
3 of
1953 provides inter alia that any member of
the force may arrest a person without a warrant or cause him to be
arrested without a warrant if he is of the opinion
that such arrest
is necessary for certain prescribed purposes. In Ngqumgas
case, supra the question arose whether, for a valid arrest in
terms of the regulation, it was necessary to inform the person of the
cause or reason
for his arrest. The Court found, per Rabie A C J, at
2641 - 266N, that while the Roman Dutch common law did not require
such notification
where an arrest had taken place without a warrant,
the present position was different. He further found (at 265 H) that
in the case
of an arrest in terms of

22

reg. 3(1) of the Emergency Regulations it was necessary
to inform the person arrested of the reason for his arrest. He
motivated
this conclusion on two grounds, (p. 265 I-J).
Firstly because, both in civil and criminal proceedings, it is a
requirement that the reason be
furnished and that the State President
in promulgating the regulation must be presumed to have known this
fact when promulgating
the regulation. Secondly because, as Rabie
C.J. put it at p. 265 I-J, it was inconceivable that the intention
could have been to
provide for the arrest of a person, and so deprive
him of his freedom, without informing him of the reason for his
arrest. It seems
to me that all the reasoning which underlies the
necessity, both in English and South African Law, for informing a
person of the
reason for his arrest even in the absence of statutory
requirements to such effect, are equally applicable in the present
case.
It was argued, however, that this was not necessarily the case
with regard to ss. 13(1) of the Lesotho Internal Security Act. It
was
submitted that the obligation on the Minister to furnish the detainee
with a statement in writing of the activities of which
he is
suspected (ss. 17(1)) within 14 days, at the longest, after his
initial arrest, countered the idea that it was essential to
give such
reasons at the time of arrest. I am unable to agree with the
submission. There is in principle no difference between a
detention
of one day, or one week or one month. In all these cases a person is
being deprived of his liberty, one of the most basic
of his
fundamental rights. The observations of Viscount Simon in the
passages cited above are of equal application to the briefest
of
detentions. I therefore

23

conclude that for an arrest made in terms of ss. 13(1)
of the Act to be valid, the person arrested must be informed of the
reasons
for his arrest.

Once it is accepted that such reasons have to be
furnished to the person arrested, then it is irrelevant, for purposes
of determining
how fully the arrestee must be informed, whether the
arrest is with or without a warrant. In my view the rules which have
evolved
for determining how fully the reasons have to be explained in
the case of an arrest with a warrant are equally applicable to the
case of an arrest in terms of ss. 13(10) (cf. Ngqumba's case, supra,
at 266 B -267 B where reference is made to Brand v. Minister
of
Justice and Another 1959 (4) S.A. 712 (A)). Where a thief or
housebreaker is caught red-handed there is obviously no need to
tell
him that he is being arrested for theft or housebreaking, this fact
is most clearly and unambiguously implicit in the physical
component
of arrest. Apart from such exceptional cases, however, the arrested
person must be informed of the reason for his arrest.
In Brand v.
Minister of Justice and Another 1959 (4) S.A. 712 (A) at 718 B-C,
Ogilvie Thompson, J.A. in a portion of his judgment
in which he twice
referred with approval to Christie and Another v. Leachinsky, supra,
observed that s.26 of Act 56 of 1955

"manifestly does not require the arrested person to
be informed of the ipsissima verba of the charge which is later to be
preferred
against him. What is required is that the arrested

person should in in substance be apprised of why

his liberty is being restrained." (My

underlining).

-24-

In Ngqumba's case, supra, at 266 G - I
Rabie, A C J referred with obivous approval to the observations of
Ogilvie Thompson, J. A. in Brand's case without
expressing any
disapproval of the principles enunciated in Christie v.
Leachinsky. It, is against this background that the
remarks of Rabie, A C J in Ngqumba's case at 266 B, (to the effect
that in regard to the
question of how fully a person arrested in
terms of reg, 3(1) must be informed of the reason for his arrest it
was from the nature
of things impossible to give one generally
applicable answer but that the question had to be answered in the
light of the facts of
each case) must be seen. I do not disagree
with this view, but what must obviously be done in the light of the
facts of each case
is to determine whether the information given to
the person arrested was sufficient to apprise him "in substance"
as to
why his liberty is being restrained. The views of Viscount
Simon that I have quoted above also assist in principle, in
determining
the exent of the information necessary in order to
apprise the arrested person in substance of the reason for his
arrest. One
of the reasons why the charge, on suspicion of which a
person is arrested, must be made known to such person is in order to
give
him the opportunity, in the words of Viscount Simon at 573

"of giving an explanation of any misunderstanding
or of calling attention to other persons for whom he may have been
mistaken,
with the result that further enquires may save him from the
consequences of false accusation."

25

A further reason is given by Lord Diplock in Walker
v. Lovell (1975) 3 all ER 107 (HC) at 115:

"Nevertheless, the arrest imposes a restraint on
his liberty. He is entitled to resist the arrest if it is unlawfull
but he commits
a serious offence in resisting it if it is lawful.
That is why at common law a citizen on being arrested is as a general
rule entitled
to be told the reason for his arrest by the person who
arrests him".

I turn to the facts of the present case. This is
clearly

not a situation where the circumstances under which the

appellant was arrested impliedly proclaimed the reason
for

the arrest. Accordingly appellant had to be informed
of the

reason "in substance." I have detailed the
wide range of

offences which are enacted in the Internal Security Act.
It

would have been insufficient merely to have told
appellant

that he was being arrested in terms of the Act, or on

account of the Act, because he could not from such

information have determined whether, inter alia,
he was

being arrested in terms of s. 13(1) on a charge of
sabotage,

or because he was a member of an unlawful organization,
or

of unlawfully possessing a dangerous weapon, or for
public

indecency, or for a breach of the peace, or for
intimidation

or annoyance. The mere information that he was being

arrested in terms of s. 13(1) would have served none of
the

purposes referred to above. In fact the position is not
far

removed from that of a policeman who, in a country where
the

26

criminal law is codified, arrests a person and only
tells such a person that he is being arrested for breaching the
criminal code.

It would not even have been sufficient, in my view, to
have told appellant that he was being arrested because of a suspicion
that
he was reasonably suspected of being involved in subversive
activity. "Subversive" as it is used in s. 13(1) is not
given
a restricted meaning in the Act because in defining
"subversive" in ss. 3(1) the legislature has expressly
stated that
its ordinary meaning is not limited. In its ordinary
meaning "subversive" is a word of the widest import.
According
to the Shorter Oxford Dictionary "subvert"
can mean to "overthrow ... upset .... overturn

....undermine" or "bring about the overthrow
or ruin of a

people or country" while "subversive"
means "Having a tendency to subvert or overthrow; tending to
subversion".
The word "tendency" vastly extends the
ambit of the concept The problem is not helped by the other
definitions of "subversive"
in ss. 3(1) which are as
follows:

"(a) supporting, propagating or advocating any act
or thing prejudicial to public order, the security of Lesotho or the
administration
of justice;

(b) inciting to violence or other disorder or crime, or
counselling defiance or disobedience to the law or lawful authority;

-27-

3. 
   being involved personally or by directing,
   organising
   or training another person or
   other persons, in the commission,
   attempted
   commission, preparation or instigation of
   any act
   involving the use of violence for
   the purpose of putting the
   public or any
   section of the public in fear;

   
   

4. 
   intended or calculated to support or assist
   or
   benefit, in or in relation to such acts
   or intended acts as
   are hereinafter
   described, persons who act, intend to act
   or
   have acted in a manner prejudicial to public
   order, the
   security of Lesotho or the
   administration of justice, or who
   incite,
   intend to incite or have incited to violence
   or other
   disorder or crime, or who counsel,
   intend to counsel or have
   counsel led
   defiance of or disobedience to the 1 aw or
   lawful
   authority;

   
   

5. 
   connection, association, or affiliation
   with,
   or support for, an unlawful
   organisation;

   
   

6. 
   intended or calculated to bring into hatred
   or
   contempt or to excite disaffection
   against any public
   officer, or any class of
   public officers in the execution of his
   or
   their duties;

   
   

28

(g) intended or calculated to seduce a public officer
from his allegiance or duty."

They cover a wide field. The person must know the reason
for his arrest and in order to know this he must know in substance
the particular
acts he is suspected of committing or conspiring to
commit. This was clearly not done in the present case. Appellant's
assertion
that the policeman who arrested him informed him that he
was being arrested for breach of his bail conditions went
unchallenged.
In fact Lieut. Metsing, who received appellant from
police officer Lethunya who had arrested him, . says that Lethunya
did not know
why appellant had been arrested. There is no evidence
from the respondent that any policeman ever informed appellant of the
reason
for his arrest prior to the filing of second respondent's
answering affidavit. Much play was made of the letter dated 15
November
1988 which appellant's attorney, Mr Pheko wrote to the
second respondent. In it Mr Pheko states that

"it has now come to our notice that client has been
detained per your instructions under the Internal Security (General)
Act
1984."

There is no indication from whom the information
emanated, least of all that it had emanated from the police. At this
stage Mr Pheko
had not yet been able to speak to his client. It is
also clear that he had not been appointed by appellant as an agent to
receive
communication from the police in order to perfect the
appellant's arrest. This all leads me

29

to conclude that appellant was unlawfully arrested and
detained.

On this ground alone the appeal must succeed. This
renders it strictly unnecessary to consider the other issues.
Nevertheless I think
it advisable to deal with some of them.

1 (b) Must the arresting policeman be the member of
the

police force to have the reasonable suspicion required

by ss. 13(1) or would it be
sufficient if second

From the plain wording of s. 13(1) it is the person or
persons who actually carry out the arrest who must entertain the
suspicion.
It was argued however that police officer Lethunya, who
arrested the appellant was the agent or instrument of the second
respondent.
This submission is in my view unsound. When Lethunya
purported to arrest appellant he was acting neither as an agent,
servant or
instrument of second respondent. He arrested appellant
because he had the statutory power to do so in terms of ss. 13(1) and
if he
wished to exercise his power to do so he had to satisfy himself
that he was entitled to do so. It is true that a Minister of Police
may be held liable in delict for the unlawful arrest of a person who
is arrested by a member of the police force without a warrant
under
circumstances where the arresting policeman is in terms of the
statute not compelled to arrest, but has a discretion to do
so. This
was crisply decided in Minister of Police en 'n Ander v. Gamble en 'n
Ander, 1979 (4) S.A. 759 (A) at 765 G

30

- 768 E. The reason is not because the arresting
policeman is the instrument, agent or servant of the Minister. It is
because the
policeman is a servant of the State of Crown, as the case
may be. (See Mhlongo & Another N.O. v. Minister
of Police 1978 (2) S.A> 551 (A) at 566 G - 567 B). I am
strongly inclined to the view that their can be no question of agency
in the
present case whereby the arrest of the appellant can be
regarded as a "representative arrest" made by the
subordinate police
officers on behalf of the second respondent so as
to make the arrest, in fact, the second respondent's arrest.
Nevertheless, because
it is not strictly necessary to decide this
point and because we have not had the benefit of full argument on it
(the Court having
raised the issue) I consider it advisable not to
express a final view on the matter at this stage, but rather leave it
open.

1(c) In view of the approach adopted above I also
consider it unnecessary to Pursue contention 1(c) as formulated
earlier in this
judgment.

1(d) Did second respondent, on the facts, discharge the
onus of proving that his suspicion that appellant was a person
involved in
subversive activity, was reasonable.

Although, having found that the arrest was clearly
unlawful for other reasons, it is also not strictly necessary to
decide this issue,
I nevertheless consider it advisable to do so.

31

It was common cause that in the present case the
jurisdictional facts justifying arrest in terms of ss 13(1) were not
dependent on
a subjective state of mind of the arresting member of
the force, but on an objective criterion, depending on proof by the
second
respondent that he as a matter of fact entertained the
requisite suspicion and that such belief was reasonable in all the
circumstances.
In other words, the existence of the "reasonable
suspicion" is objectively justiciable. (See

Minister of Law and Order v. Hurley and
Another 1986(3)

568(A) at 577 I - 583 H and in particular at 583 G-H).

The Court in the present case can and must therefore
decide whether the suspicion was entertained and whether it was
reasonable.

As to what constitutes suspicion, the following remarks
of Lord Devlin in Shakan Bin Hussein and others Chong Fook Cam
and Another (1969) 3 All E.R. 1626 are instructive. At p.1628 his
Lordship said:

"Suspicion in its ordinary meaning is a state of
conjecture or surmise where proof is lacking; "I suspect but I
cannot prove".
Suspicion arises at or near the starting point of
an investigation of which the obtaining of prima facie proof is the

end Their Lordships have not found any

English authority in which reasonable suspicion has been
equated with prima facie proof".

Lord Devlin continued at p. 1631 by quoting with
approval the following remarks of Scott, L.J., in Dunbell v. Roberts,
[1944] 1 All
E.R. 326 at 329:

"That requirement (i.e. that the constable must,
before arresting satisfy himself that there do in fact exist
reasonable grounds
for suspicion of quilt) is very limited. The
police are not called

32

on before acting to have anything like a prima facie
case for conviction".

Reference may also be made to the observations by
Wentzel

J.A. in this Court in Solicitor General v. Simon
Frank

Mapetla
(unreported C. of A. (Civ) No. 17 of 1984) at p. 2:

"A suspicion is of course not to be equated with
prima facie proof; but the suspicion must be reasonable, that
is to say it must be such that a reasonable man in possession of the
facts would
agree that there was reasonable ground to suspect that
the person involved was concerned in

subversive activity It is this

requirement of reasonableness which is the safeguard
given against capricious arrest".

I have already alluded to the unsatisfactory aspects of
first respondent's affidavit in respect of his reasonable suspicion,
and in
particular the bald statements that appellant "had been
indulging in subversive activities as defined in the internal
Security
(General) Act" and "was indulging in acts of
espionage". It is insufficient merely to state a conclusion
without supplying
some information on which such conclusion or
suspicion is based. In the first place an evidential onus is
discharged by proof of
facts, not by statements of conclusions.
Secondly, by not proving facts in support of the conclusion the Court
is precluded from
assessing the reasonableness of the conclusion or
suspicion and accordingly precluded from finding that the onus has
been discharged.
All that has been adduced in support of the above
last-cited conclusions is the assertion that the conclusion is based
on credible
information and objective facts. Once again this is
little more than the bald assertion of a conclusion which it is
impossible for
the Court to evaluate. It is no answer to say, as
second

33

respondent does, that he is unable to disclose the
information or facts as they would be prejudicial to public interest
and public
safety. This merely precludes discharge of the onus. It is
not expected of a litigant in these circumstances to disclose witness
statements or the identity of witnesses or reveal in any detail
security arrangements or the precise acts which the prisoner is
suspected
of performing. But there is a vast middle ground between
revealing all and revealing nothing. Second respondent has not
discharged
the onus of proving the reasonableness of any suspicion in
regard to these matters.

The only matters which remain to be considered relate to
the

publication of a report or reports in the "The
Mirror" and

the possession of certain documents. I have already
alluded

to the fact that only the report of the 9th September
1988

was placed before Court. As far as the
assertions

concerning the publication of reports are concerned I
have

already said it is impossible to determine whether
second

respondent is alleging that both reports were alleged to
be

"highly detrimental" to national security or
only one. In

either event it is impossible for the Court to evaluate
this

assertion. If he is alleging that two were detrimental

then, without seeing both, it is not possible to
evaluate

their joint impact. Conversely, if one cannot evaluate
one,

one cannot be sure that only one report would have led
first

respondent to the same conclusion. If it is equally

possible that he may only be referring to only one
report,

and in my view it is equally likely, then in view of
the

onus which second respondent bears one must decide the
issue

34

on that assumption. If that is the case, then it is not
possible to determine in which publication it appeared. It cannot be
accepted,
on a balance of probability, that the report is the one,
before Court. In that event one only has second respondent's say-so
that
the report might have had this important consequence. In any
event I am unable to see how the report of the 9th September could
be highly detrimental to National security. The main thrust of the
report concerns Benco's defrauding of Lesotho and coupled with
this
the averments, mainly by way of innuendo, that finance Minister
Sekhonyana had an improperly close relationship with
Benco by
means wherof he enriched himself and was further guilty of a serious
dereliction of duty in helping Benco to transfer more
than two
million Maloti into a Swiss banking account and also abused his
position in order to get favourable foreign exchange treatment.
The
article was clearly an attack on the probity and integrity of a
Minister of State. I fail wholly to see why attempting to
expose
corrupt acts of a Minister of State is detrimental to National
security unless sufficient material is placed before the Court
to
establish that second respondent had reasonable grounds for
suspecting that the allegations made were deliberately or
recklessly
false. All second respondent does in this regard is to
make the completely bald statement regarding appellant's "acts
of
publishing demonstrably false statements and accusations
against members of the Government of Lesotho". The reference
here is to "members" of the Government, whereas the report
of the 9th September refers only to one member. The only person
who
attempts to furnish grounds for the averment that

35

appellant's report is incorrect was Mr Leuta the
Exchange Control Officer in the Central Bank of Lesotho since January
1981. He avers
that the report of 9th September is incorrect, or
false or misleading in four respects.

1. The suggestion that the Minister of Finance
instructed the Lesotho Bank to transfer funds to a Swiss Bank is
incorrect because
"there was no need for the Minister of Finance
to instruct any bank to effect payment in foreign currency for
a purely
governmental transaction". As a matter of logic
this statement is a non sequitur. The fact that there was no need
for the
instruction, because the bank could have done it meru motu,
does not mean, as a matter of logic, that no instruction was given.

If in fact the bank was empowered mero motu, to effect payment in
foreign currency for a purely governmental, transaction then
a
further sting is added to appellants accusation. The innuendo would
then be that the bank was reluctant to effect the payment
and the
Minister improperly used his influence to persuade the bank to do so.
Mr. Leuta has not sought to counter this innuendo
by asserting that
it is factually untrue, but has attempted to do so by way of an
argument which is fallacious. If appellant's accusation
is true
(and no whisp of evidence or explanation has been proferred to show
that it is not) then the report, far from threatening
state security,
was a matter of public duty.

36

2. The second reason advanced by Mr. Leuta for stating

that appellant's allegation regarding the transfer of

funds to a Swiss bank account is false is that the

report contained an innuendo (according to him) that

the account was a secret account thereas Annexures A

and B, which were in appellant's possession, indicate

the contrary. Presumably Mr. Leuta is referring to the

fact that these annexures, which are both copies of

Benco invoices, embody a request for a remission of

moneys to "Swiss Bank Corporation Account No.

Q5/716211". This reason is simply factually wrong
and

indicates that Mr. Leuta misread the newspaper report.

In the fourth column on the first page of the report

(Annexure I) the number of the account is in fact

stated.

3. Thirdly Mr. Leuta states in paragraph 8 of his
affidavit that the allegation in the report that during January and
February 1981
"more than two million Maloti" were
transfered into the Swiss account is, even according to the documents
which were in
the possession of the applicant "a gross
distortion of the truth". This assertion is also based on faulty
logic. Mr. Leuta
states categorically that Benco only submitted three
invoices in support of their application for transfer of funds to
Switzerland.
Mr. Leuta says that he "can state as a fact that
there is not any other invoice in this behalf". These three
invoices total
M1,238,589.75 which is the exact amount on Annexure
"C", an application by an authorized dealer on a

37

printed document for a transfer of this sum. The
identity and domicile of the recipient is given as "Bencofin AC
Schaan, Vaduz
- Switzerland". Therefore, says Mr. Leuta, there
could not have been a transfer of more than this sum on Benco's
behalf. What
Mr. Leuta is apparently saying is that no transfer of
money out of Lesotho can, or ought to take place, without the
necessary supporting
invoices. This is of course only true if no
irregularity is committed. What Mr. Leuta has, somewhat
surprisingly, overlooked
are the existence and implications of
Annexure "D" to the answering affidavit. Annexure "D"
is also on the
face of it, an application by an authorised dealer on
a printed document for a transfer of funds. The transfer is in
respect of
an amount of M1 , 238,000, whereas the sum reflected on
Annexure "C" is for M1,238,589-75. There are other
differences
between these two documents. Annexure "C"
bears the manuscript note "L245" next to the printed
words
"Registrar of Financial Institutions Reply",
whereas Annexure "D" bears the note "L244".
Moreover,
the "Beneficiary and Domicile" column in Annexure
"C" is completed to read "Bencofin AC Schaan, Vaduz -
Switzerland". Whereas the same column in Annexure "D"
is completed to read "Lesotho Bank Account - Switzerland"
while admitting that Annexure "D" is also an application on
behalf of Benco by an authorized dealer, Mr. Leuta offers no
explanation or justification for it. The documents before Court
therefore indicate, prima facie, that during February 1981
application
was made on behalf of

33

Benco to transfer a total sum of M2,476,589-75 to a
Swiss bank account. Mr. Leuta leaves entirely unexplained the
application
embodied in Annexure "D" to transfer the sum of
M1,238,000. Appellant said this sum was also transferred. Mr. Leuta
does
not deny that the money referred to in Annexure "D"
was transferred. Moreover he said, quite categorically, that there
are only three invoices to support the transfer of money in terms of
Annexure "C". On the papers as they stand, Appellant's

assertion that a total of more than M2,000,000 was
transferred is not effectively challenged or contradicted.
Moreover,
there is apparently no justification or explanation for
its transfer. Under these circumstances Mr. Leutas bold allegation
of
"a gross distortion of the truth" simply col lapses.

4. Lastly Mr. Leuta argues that it is grossly misleading
for appellant to suggest that an amount of more than M14,000 which
was granted
to the Minister concerned was in excess of what the
Foreign Exchange Control Regulations allowed and that this privilege
was seemingly
extended to him in his capacity as Minister of Finance.

Mr. Leuta explains that while an authorized dealer, such
as a commercial bank, could not exceed the limit of M10,000 in
respect of
a travel allowance, the Central Bank could in fact grant
permission for a larger amount. I do not think Mr. Leuta meets the
point
The amount of R14,000 is in axcess of what, in the normal run
of things, is granted by a

39

commercial bank to a traveller. Mr. Leuta's explanation
for approving a larger amount is contradicted by the

documentation.

Leuta said that the more than M14,000 was a travel
allowance

needed by the Minister because he was travelling to a
number

of European countries on government business. The only

document before Court on which the Minister applies for
more

than M14,000 is Annexure "F", which is an
application in the

name of the Minister personally not in respect of a
travel

allowance but for M27,000 "to purchase some
equipment from

Belgium". On this issue nothing which Mr. Leuta
has

advanced is in any way indicative of the fact that what

appellant had suggested was in any way misleading. Mr.

Leuta has therefore not shown, in any of the respects

suggested by him, that appellant's report was incorrect
or

misleading. In the result the second respondent has
not,

in any way, shown that appellant published false
statements

or accusations concerning any member of the Government
of

Lesotho.

The only remaining ground on which second respondent
sought to justify a reasonable belief and suspicion that the
appellant was involved
in subversive activities was the fact that
appellant was in possession of highly sensitive documents belonging
to the state. This
assertion by second respondent is not further
elaborated in his papers. He does say however that the Central bank
had not been broken
into and that the inference was justified that
the documents in appellant's possession had been leaked to appellant
by an employee
of the Central Bank. There is nothing to suggest

40

that even if an employee of the Centra 1 Bank had done
so that this had been instigated by the appellant or that second
respondent
believed this. Such a suspicion would have been
unreasonalbe inasmuch as it is a notorious fact of life that
documents of a confidential
nature are often anonmously delivered to
newspaper reporters and editors. While it would no doubt be correct
to refer to these documents
as confidential it does not therefore
follow that they are highly sensitive, in the sense that
their disclosure would be
harmful to state interest. Respondent does
not say why appellant's mere possession of these doctynents led him
to believe or suspect
that appellant was involved in subversive
activities. Quite obviously his possession of the documents is
related to the report
published in "The Mirror" which was
aimed at linking Chief Sekhonyana with the Benco scandal. In the
absence of any other
explanation by second respondent his belief
or suspicion could not be related to any other activities by the
appellant. The
bona fide attempt by a newspaper editor to
disclose, through the publication of his newspaper, the existance of
corruption or irregularity
in public administration and the fact
that a Minister of State is involved in or connected with such
corruption or irregularity
cannot possibly in my view, coustitute
a subversive activity in terms of the Act, if the editor bona fide
and reasonably believes in the truth of this assertion. It is not
necessary for purposes of this case to decide whether such belief
needs to be reasonable as well as bona fide but I shall
assume, without deciding, that both an honest as well as a reasonable
belief are necessary. It is

41

also unnecessary to decide whether the mere publication
of such information, even where the publisher does not entertain a
bona fide belief in its truth, would without
more constitute subversion. For purposes of this judgment it is
sufficient to decide that there
can be no question of subversive
activity if the editor both bona fide and
reasonably believes in the truth of what he is publishing.

Without therefore showing that he had reasonalbe grounds
for suspecting that appellant did not bona fide
and reasonably believe in the truth of what he was publishing,
second respondent could not reasonably have suspected the appellant
of being involved in subversive activities merely because he was in
possession of the documents referred to. For the reasons already
stated the second respondant has not in any way established on these
paper that he had any reasonable grounds for suspecting that
appellant did not have such a bona fide and reasonable belief.

In the result the second respondant has failed to
establish any of the grounds advanced by him for reasonably,
suspecting that the
appellant was involved in subversive activities.
For this reason as well, therefore, the second respondent has failed
to prove that
appellant's arrest or detention was lawful.

In this application the appellant was accordingly
entitled to an order releasing him forthwith from detention. As
indicted earlier
in this judgment the appellant was deported from the
Kingdom of Lesotho on the 10th December 1988. This

42

of course does not disentitle him from an order on his
application including the appropriate order as to costs.

The appeal of the appellant accordingly succeeds with
costs.

The orders of the court a quo made on the 6th December
1988

and the 13rd June 1989 are set aside and the following
order
substituted:

1. 
   The applicant is to be released forthwith from
   custody
   and detention.

   
   

2. 
   The interim court order authorising reasonable
   access
   to the applicant is confirmed.

   
   

3. 
   Respondents are ordered to pay the costs of
   the
   application.

   
   

Signed:

L.W.H. ACKERMANN
JUDGE OF APPEAL

I agree Signed:

W.P. SCHUTZ PRESIDENT

I agree Signed:

I. MAHOMED
JUDGE OF APPEAL

Delivered at MASERU this 24th day of January 1990.