CIV/T/435/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

THABO
SEKHESA Plaintiff

v

1.
SOLICITOR GENERAL )

2.
MINISTER OF DEFENCE ) Defendants

3.
DIRECTOR OF NATIONAL )

SECURITY

RULING

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 21st day of
November, 1983

The
plaintiff is claiming damages in the sum of M11,000 against the
defendants for unlawful arrest and detention from the 3rd of
June
until the 29th July 1983.

In their
plea the defendants say that the plaintiff was arrested lawfully in
terms of s.32 and s.33 of the Internal Security (General)
Act 1982
and held in custody until 1st July, They admit however that his
detention thereafter for a period of 27 days was unlawful
and offered
to pay damages.

The
plaintiff requested defendants to furnish him with further
particulars regarding the plaintiff's detention for the period
between
3rd June 1983 and 1st July 1983.

Defendants
replied that all, save one of the particulars requested, are matters
of evidence and detail that would emerge at the
trial.

The
plaintiff moved the Court under Rule 30(5) to compel the defendants
to supply those particulars.

It seems
abundantly clear to me that this application

2

must be
refused. The main issue is clear, viz, whether the arrest and
detention for the disputed period was lawful or unlawful,/this
cannot
be decided unless evidence is heard. What the plaintiff is seeking,
under the guise of a request for further particulars,
is in reality a
judicial interpretation, in advance of argument, on the procedural
aspect of extremely complex and difficult sections
in the Act. Any
ruling on particulars may well be a decision on the question of upon
whom does the onus of proof lie and which
of the contesting parties
should begin.

I need
point out only some of these difficulties and complexities :

1. Section
   32 sanctions arrest and detention for 14 days but does not expressly
   provide for the arresting officer to give the detainee
   reasons for
   his suspicions either orally or in writing and is under no
   obligation to bring him before any court.

   
   

2. Section
   33(1) enjoins the Commissioner in certain circumstances to make an
   interim order of custody for 14 days. This order must
   be in writing.
   The purpose is presumably to give authority to the person in charge
   of a prison or some such place, to hold and
   keep the detainee, but
   again there is no express provision that a copy of this order should
   be served on the detainee or his
   relatives within a specified time.
   Nor is there any provision that requires the Commissioner to
   disclose to the detainee the
   grounds of his suspicions. The
   Commissioner is obliged to report the detention to the Minister but
   there is no provision about
   the method or timing. Section 48 is
   imprecise because it speaks of "as soon as may be" and "in
   such manner as
   the authority considers most efficacious". How
   soon and what method must be of necessity vary from case to case.

   
   

3

3. It
   is only after the elapse of a period of 28 days that under the
   express provisions of the law (s.35(2)) that notice is required
   to
   be given to a detainee that the matter of his arrest and detention
   has been referred to an advisor. After this stage the procedure
   is
   better spelt out. The defendants as I said admit liability in this
   respect.

   
   

The
general maxim is omnia praesumuntur rite et solemniter esse acta.
i.e. all things are presumed to be correctly and solemnly
done until
the contrary is proved. The Act is of course a penal act but it is
not possible today to say that the maxim should be
jettisoned. The
presumption is in any event rebuttable.

If there
is anything to be implied into these provisions by way of judicial
interpretation is a matter that has to await the trial.
The Court is
not prepared to say today that it ought to incorporate into the law,
by implication, something upon which the law
is either silent or
imprecise.

Let me
add that a detainee (s.40(4) of the Act) has the right to be treated
as an unconvicted prisoner in terms of the Prison Rules
1957 (Vol II
Laws of Lesotho p. 1300) unless the Minister directs otherwise. We do
not know if there was a contrary direction by
the Minister. The
Prison Rules are not inhumane. The standard of accommodation and
other amenities provided must perforce depend
upon the financial and
manpower resources of the individual country. The rules generally
provide for beds and bedding baths etc...
but not the exact numbers
of blankets or nature and standard of conversational civility that
ought to be observed between warder
and prisoner. If there has been
infringements that entitles the detainee to damages only the trial
Court will be able to determine
on the evidence adduced.

The
application as I had earlier intimated is dismissed with costs.