CIV/APN/391/93

IN THE
HIGH COURT OF LESOTHO

In the
mattter between:

MPALI-PAL
I LEKOTHOLI APPLICANT

AND
ATTORNEY-GENERAL RESPONDENT

REASONS
FOR JUDGMENT

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu on the 14th day of
October, 1994.

On the 7
th October, 1994, the registrar told me she had a letter from the
Altorney-General asking me for reasons for judgment.

It was
also disclosed for the first time that an appeal had been noted and
that the Attorney-General could not prepare a record
until he had my
reasons For judgment.

2

Applicant
made an application order in the following terms:

"1. Extending the period of six (6) months pursuant to section
60 of the Police Order No.26 of 1971 as amended.

2. Directing
   the Respondent to pay the costs of this application only in the
   event of opposition.

   
   

2. Granting
   the applicant such further and/or alternative relief as this
   Honourable Court may find fit."

   
   

In the
past such applications were rarely opposed precisely because the
altitude of the Crown was "let right be done."

This
application was made on the 5th August, 1993.

Applicant
claims he was arrested on thu 2nd May, 1990, assaulted and detained
by the police and subsequently taken before a Magistrate
on 29th May,
1990.

3

Apparently
Accused was not remanded to custody. The case was remanded endlessly
until in February 1992 when he was told not to come
any more.

Applicant
says he was not aware of the provision in the Police Order No.26 of
1971 which provides that the police should be sued
within six months
of the date of commission of the offence.

The
Respondents deny the assault and say the action is time barred by the
provision of the Government and Proceedings and Contract
Act of 1965.
They also oppose the extension of the period for issuing summons,
perhaps because ignorance of the law is no excuse.
This principle is
applied with sensitivity by courts. It is applied to make sure
existing law is respected and no excuses made
unnecessarily. Courts
do take ignorance of the law as an excuse for purposes of punishment.

Section
60 of the Police Order No. 26 of 1971 (as amended) provides that
actions against the police should be instituted within
6 months but
the Court on good cause shown can extend the period if it is
satisfied that applicant with good reasons has persuaded
it that it

4

should
extend the period.

It seems
to me that at this stage I cannot go into the merits. I am satisfied
Applicant could not bring proceedings in respect of
his detention and
malicious prosecution until criminal proceedings had been finalised
or abandoned. This happened around February
1992. He says he was not
aware of Section 60 of the Police Order of 1971. I am satisfied he is
telling the truth and to me that
is a good enough reason.

In
granting this application 1 was also conscious of the fact that
Sections 6 and 7 of the constitution that protect the personal

liberty and freedom of movement had been violated. The Constitution
being the supreme law I felt obliged to give it effect over
laws that
seem not to give much consideration of fundamental human rights and
freedoms. I noted the particular Police Order gave
me a discretion.
This discretion 1 exercised in favour o liberty of the subject.

On the
question of assault it seems the action could have been brought
earlier, although on the face of things it is inseparable
with the
detention and malicious

5

prosecution.
The assault look place in May 1990. The right to bring an action
seems to have been lost through the running of the
two year
prescription which is found in Section 6 of the Government
Proceedings and Contracts Act of 1965. Yet Section 22(1) of
the
Constitution seems to be in conflict with the Government Proceedings
and Contract Act of 1965. That being the case I was of
the view that
even the right of action in respect of the assault, is not
necessarily time barred. 1 also took into account the
fact that the
assault, detention and malicious prosecution are intertwined.

For
guidance in respect of laws that collide with the Constitution
reference should be made to cases of the U.S.A. in Marbury v
Madison
1 Cranch 137 (1803) Marshall C.J. called the constitution the supreme
law of the Land to which other laws should yield.
He further held
that the Constitution like other laws should be interpreted by the
courts of law. It will be observed that Sections
5. 6 and 11 of the
Human Rights Act of 1983 protects these rights except that in terms
of Section 3 the Human Rights Act of 1983
was subject to conditions
previously laid by law. Before April 1993, the Constitution was not
yet the supreme law which must be
given effect to. This

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application
was dealt with within what I considered as the present human rights
culture.

The view
1 take is that ex facie of the papers Applicant was subjected to an
inhuman treatment by the police. This is contrary to
Section 8 of the
Constitution, I felt insofar as the Govermnent Proceedings and
Contracts Act of 1965 denies Applicant a forum
it should not
prevailed over the Constitution.

1 granted
Applicant's application and extended the time within which to bring
an action to 6th September, 1994 because the delay
to hear this
application was not of his making but rather one of the
malfunctioning of our judicial process itself. There was no
order as
to costs.

As I
considered the application an interlocutory one, 1 did not write a
judgment nor did any party ask for it.

W.C.M.
MAQUTU

JUDGE

For
Applicant : Mr. Nathane

For the
Crown : Mr. Mapetla