CIV/APN/149/90

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

LEROTHOLI
JACOTTET THEKO Applicant

and

COMMISSIONER
OF POLICE 1st Respondent

ATTORNEY
GENERAL 2nd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 23rd day of July.
1990

This is
an application for habeas corpus made by the applicant on behalf of
his half-brother one Khoabane Letsie Theko who is the
Principal Chief
of Thaba-Bosiu. A rule nisi was issued on the 8th June, 1990 calling
upon the respondents to show cause on the
11th June, 1990 why the
respondents should not be ordered to produce the person of Khoabane
Letsie Theko and there and then to
show cause why he shall not be
released forthwith from custody. There was a prayer for costs against
the respondents jointly and
severally the one paying the other to be
absolved.

2

It is
common cause that on the 4th June, 1990 members of the Royal Lesotho
Intelligence Service arrested Chief Khoabane Letsie Theko.
The arrest
was made after his office was searched for about one and half hours
and a document written by His Majesty concerning
the Southern African
Deve­lopment Co-ordinating Conference was removed. On the
following day it was announced over Radio Lesotho
that Chief Khoabane
L. Theko was in police custody and under interrogation.

The
applicant alleges that Chief Khoabane L. Theko has not committed any
offence nor can he reasonably be involved in subversive
activity. As
a chief he is a peace officer who has undertaken to maintain law and
order without showing any bias towards any faction
in government that
may be in existence.

In his
answering affidavit Robert Ralefume who is a member of Royal Lesotho
Intelligence Service and the investi­gating officer
in this case,
deposes that he arrested and de­tained Chief Khoabane (detainee)
upon credible information received by him which
pointed out that
during the period from the end of March, 1990 till the date of his
arrest the detainee was on daily basis and
at various places within
the country consulting with various sections of the population and
holding secret and underground meetings
whereby he strongly incited
members of the public to commit acts of violence and counselled
defiance and disobedience to the Government
of Lesotho. He did all
these things because he was not satisfied that the King was out of
the country and living in England. The
detainee

3

advocated
hatred and contempt against the Government by referring to it as
illegally constituted and used to go about under cover
of night
asking members of the public to ignore the rule of the Government of
Lesotho. He consulted with the Principal Chiefs and
urged them to
ignore and isolate the Government and its administration and to work
towards over­throwing it.

The
deponent says that he is unable to disclose any further information
on this matter as this may be prejudicial to public safety
and
national security of Lesotho. He arrested and detained the detainee
in terms of section 13 (1) of the Internal Security (General)
Act
1984 (The Act).

In his
replying affidavit in paragraph 3 the applicant deposes that:

"I respectfully submit that to deprive a citizen of his liberty,
particularly one of the status of the detainee in this case,
on the
information of some faceless informer however ludicrous the
information may be, is not to comply with the requirements of
the
Act. To go on and say one is not prepared to disclose any further
information is simply to act arbitrarily. The only justifi­cation

for the deponent doing what he alleges he has done is that he had a
reasonable suspicion that the detainee is involved in subversion.
He
carries the onus of proving in court the reasona­bleness of the
suspicion he alleges to entertain. To say that the information
he
received is credible is simply to beg the question. In any case, as
more fully appears from the Supporting Affidavit of Winston
Churchill
Maqutu annexed hereunto, the deponents averments that the detainee is
under interrogation just cannot be true."

4

Mr.
Winston Churchill Maqutu, an attorney of this Court has filed a
supporting affidavit dated the 12th June, 1990. He avers that
on the
4th June, 1990 he found the detainee in custody in the offices of the
Royal Lesotho Intelligence Service. Colonel Thaha
told him that the
detai­nee had been arrested in terms of the Act. He asked for a
document disclosing the grounds for the detention.
Colonel Thaha said
that the document was being prepared and that he would get it on the
following day. On the 5th June he went
to the offices of Colonel
Thaha but was told that the document was not ready and that he should
come on Thursday, the 7th June.

Mr.
Maqutu did not actually go there on the 7th but on the 8th June,
1990. Colonel Thaha told him that the interrogation had long
been
completed and that the need for the document setting out the grounds
for the detention had fallen away. He promised that the
detainee
would be released that morning. Colonel Thaha had actually phoned the
people he alleged were his seniors before he said
the detainee would
be released that morning. On the 9th June the detainee was still in
detention and Colonel Thaha explained to
Mr. Maqutu that the
authority who had to take the final decision regarding the release of
the detainee had gone to the agricultural
show on the outskirts of
Maseru.

On the
10th and on the 11th June Mr. Maqutu met Colonel Thaha and Major
Mokhele. The two officers confirmed that the interrogation
was
completed on the 5th June, 1990.

5

On the
13th June which was the extended return day of the rule nisi the
Court was informed that the detainee had been released and
the matter
was postponed to the 25th June, 1990 for argument on costs only.

The
application was filed in the office of the Registrar on the 7th June,
1990. On that day Mr. Sello, attorney for the applicant,
was not
aware that the interrogation was completed and that all Colonel Thaha
was waiting for was a final word from his superiors.
That information
became available on the 8th June after the application had been
launched.

Mr.
Mohapi, counsel for the respondents, submitted that the Court must
ignore Mr. Maqutu's affidavit because it is not a replying
affidavit
but raises new points at the replying stage when the respondents have
no chance to reply to those new allegations.

On the
other hand Mr. Sello expressed his surprise why Mr. Mohapi did not
ask the Court to give him chance to file extra affidavits
to
challenge the new allegations that are being made.

I do not
wish to make any decision on this point because it is not all
important. What is important is whether the initial arrest
and
detention were lawful or not. If it is found that the arrest and
detention were lawful, it will not make any difference that
the
detainee was kept in custody for a few days after the interrogation
was completed. Colonel

6

Thaha has
explained that during those few days he was still trying to contact
his superiors who had the final word on the release
of the detainee.
It must also be remembered that the period of fourteen days
prescribed by law had not expired. I do not mean that
the police are
entitled to keep a detainee even after they have finished
interrogating him as long as a period of fourteen days
has not
expired. They must give sound reasons why they could not do so.

In his
replying affidavit the applicant accuses the police officer who
arrested the detainee of relying on information coming from
some
faceless informers. If by this the applicant means that the police
officer had to disclose the names of his informers then
I do not
agree with him. The police officer has disclosed the nature of the
information he had before he arrested the detainee.
He has stated the
facts in support of the conclusion he reached.

7

In the
case of Solicitor-General v. Simon Frank Mapetla, C.of A. (CIV) No.
17 of 1984 (unreported) at p.2 Wentzel, J.A. said:

"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."

In the
instant case the police officer who decided to arrest and detain the
detainee has set out at great length the things that
the detainee was
alleged to have been doing. In my view those things amounted to
subversion as defined in section 3 (1) of the
Internal Security
(General) Act. No.24 of 1984.

The legal
position concerning the above point was summed up by Ackermann, J.A.
in Johnny Wa Ka Maseko v. Attorney-General and another,
C. of A.
(CIV) No.27 of 1988 (unreported) at page 32-33 where he said:-

"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

8

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 of suspicion
and accordingly precluded from finding that the onus has
been
discharged. All that has been adduced in support of the above
last-cided 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 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." (My underlining)

In the
instant case the police officer went as far as to disclose the
precise acts which the detainee was suspected of performing.
I come
to the conclusion that his suspicion was

on
reasonable grounds and that the arrest and detention of the detainee
were lawful.

9

In the
result the application is dismissed with costs.

J.L.
KHEOLA

JUDGE

23rd
July, 1990.

For the
Applicant - Mr. Sello

For the
Respondents - Mr. Mohapi,