C of A.
(CIV) 15 of 1983

IN THE
LESOTHO COURT OF APPEAL

In the
matter of the appeal of

EDWIN
RALIOTLO PHAKISI Appellant

and

SOLICITOR-GENERAL
First Responded

SECOND
LIEUTENANT TSITA Second Respondent

HELD AT
MASERU

Coram

Mahomed,
J.A.

Aaron, J.
A.

Miller,
J.A.

JUDGMENT

Aaron, J
A

Since
judgment was reserved in this matter, one of the members of the
Court, the Hon Mr. Justice Miller, has most regrettably passed
away
Although he did not have the opportunity of reading this judgment in
print, he did participate in discussions with the other
members of
the Court after the conclusion of argument, and was in full agreement
with the conclusions then reached and which are
set out hereunder.

The
question arises as to whether the matter must-be re-argued before a
newly-constituted court because of his death. There is no
provision
in the Court of Appeal ...

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of appeal
Act, 1978, dealing with this situation. The only section of any
relevance is s.6 which provides

" The Court shall, when determining any matter other than an
interlocutory matter, be com­posed of an uneven number of
judges,
not being less than three".

Where the
Court hearing a matter consists of three members, and one dies before
the matter is determined by them, then there is
no longer a quorum,
and a fresh Court will need to be constituted But the important
question is as to the meaning of the word "determining"

There are cases in which it has been held unnecessary to reconstitute
the Court where a deceased judge had died after judgment
had been
reserved, but he had con­curred in the decision (Marais v. Smuts
3 off Rep (1898) 174, Lynch v. Knight 9 H of L Cas.
at 588, Rabot v.
De Silva (P C.) 100 LT at 242) In the present case, a conclusion was
unanimously reached by all 3 judges, and
it remained only to express
that conclusion in written form In the view of the remaining two
judges, the Court "determined"
the matter before the death
of Miller, J.A., and this judgment in fact reflects the determination
of the issue by the 3-judge Court.
It is therefore not necessary to
reconstitute the Court.

I proceed
now to the merits of the appeal.

Applicant
is a businessman from the Mokhotlong district who at the time of
events described below, was 47 years of age. It is common
cause that
on 13 August 1983, he was arrested by members of the police force,
one

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of whom
was Second Lieutenant Tsita (Second Respondent), and subsequently
detained on suspicion that he had been involved in subversive

activities in contravention of the Internal Security (General) Act,
1982. At the same time as he was arrested, a Mercedes Benz
truck
belonging to him and a Toyota Landcruiser used in the conduct of his
business were also seized by members of the police force.
Plaintiff
was kept in custody until 7 September 1983, when he was formally
charged, and remanded into custody A few days later,
he was released
on bail

Three
months after these events, Plaintiff instituted an action for damages
against the Solicitor-General, as representative of
the Lesotho
Government, jointly and severally with Second Respondent. He alleged,
firstly, that during the period he was in custody,
he had been
wrongfully and unlawfully assaulted by Second Respondent, and other
members of the police force, acting within the
scope and course of
their employment with the Lesotho Government For this assault, he
claimed M15,032 50, made up as follows

Pain and
suffering M10,000 00

Medical
expenses 32 50

Contumelia
5,000.00

He also
alleged that he had suffered damages in respect of earnings lost as a
result of the wrongful seizure of his vehicles, and
under this head
he claimed M18,360

In their
plea, defendants denied that plaintiff had been assaulted and denied
that the seizure of plaintiff's vehicles had been
unlawful. They
claimed that the vehicles

4

were
taken because there were reasonable grounds for sus­pecting them
to have been used by plaintiff in the sub­versive
activities in
which he was reasonably suspected to have been involved

The
matter came to trial in May, 1985, that is, about 21 months after
appellant had been taken into detention In the course of his

evidence, appellant testified to various kinds of assaults which he
alleged had been per­petrated on him in the course of his

interrogation, in order to try to elicit from him information which
the police were hoping to get. It will be convenient to list
them at
this stage

1. he
   claimed that he had been taken from his cell

   
   

at nights to be questioned, that he had been hand­cuffed on the
way to the office used for interrogation, that when he got
there the
handcuffs were removed, but he was made to undress completely and was
made to remain naked while he was being interrogated
After being
questioned for some time, but still not having given his
interrogators the answers they wanted, he was told he would
be dealt
with "in a police way so that (he) should tell the truth".

2. he
   claimed the police had subjected him to electric shocks by
   connecting a jump starter to a wall plug, and applying the two ends

   to his thighs, this caused wounds to his thighs, the scars of which
   he said were still visible, and were exhibited to the trial
   Court,

   
   

3. he
   claimed he had been hit on the head and kicked with booted feet,
   this caused bruises,

   
   

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but not bleeding, he still had residual low back ache at the date of
the trial,

4. he
   claimed that a large canvas bag had been pulled over his head and
   upper body down to his thighs, the bag was fastened around
   his
   waist, suffocating him. When he collapsed, the bag was removed, but
   when he failed to give his interrogators the answers
   they wanted,
   the exercise was repeated,

   
   

5. he
   claimed that one officer had taken hold of his penis, and pulled it
   in all directions,

   
   

6. at
   times, he would be made to stand on a hot, flat object with his bare
   feet,

   
   

7. on
   the day that he was taken into custody -which had been in the early
   morning - he was given nothing to eat and nothing to drink.
   Later,
   he war given food at times, but some­times he would be made to
   go as long as four days without meals'. When he did
   get food, it was
   no more than a thick slice of bread and a glass of water with orange
   flavouring (Oros), twice a day,

   
   

8. he
   was not given any washing facilities, and although he was provided
   with a bucket for sanitary purposes, he was provided with
   no toilet
   paper,

   
   

9. his
   underpants and socks, which he had been made to remove during the
   interrogation on his first night in custody, were not returned
   to
   him until the day he was released, nor his shoes, which were removed
   when he was placed in his solitary cell,

   
   

6

10. all
    the time that he was in detention, he was kept handcuffed. This
    produced scars on his wrists, which he exhibited to the trial
    Court.

    
    

Plaintiff
claimed that there was not a night during his period of custody (25
nights in all) that something of this kind was not
done to him. The
electric shocks were applied, and the canvas bag was put over his
head every night.

All these
allegations were denied by the defendants witnesses, save for the
handcuffing. This they sought to justify on the basis
that defendant
was being violent in his cell, that he presented a threat of an
escape, and that handcuffing was necessary to restrain
himself from
injuring himself, and from preventing an escape.

The trial
judge found, for reasons which will be dealt with later in this
judgment, that plaintiff had failed to prove on a balance
of
probabilities that he had been assaulted in the various ways alleged
by him, other than that he had been handcuffed. He held
that there
was no justification for the police having kept the plaintiff in
handcuffs, and for this he awarded plaintiff an amount
of M3,00C as
damages against both defendants, jointly and severally With regard to
the claim in respect of the seizure of the vehicles,
he found that s
52 of the Criminal Procedure and Evidence Act provided the police
with the necessary authority, on the facts of
this case, to have
acted as they did, and he dismissed this claim for damages. As
plaintiff had succeeded on one claim, and failed
on the other, he

7

ordered
the defendants, jointly and severally, to pay one-half of plaintiff's
costs of the whole action

Against
this judgment the plaintiff appeals to this Court He contends that
the trial Court should have found that the other assaults
alleged by
him had been proved, and that the vehicles had been wrongfully and
unlawfully detained He contends also that the quantum
of damages
awarded was not commensurate with the nature of the assault.

However
in argument before this Court, counsel for the appellant conceded
after some debate that he could not persist in the contention
that
the seizure of the vehicle had been unlawful- We are left therefore
only with the issue whether the other elements of the
assaults had
been proved by plaintiff on a balance of probabilities, and with the
quantum of damages.

At this
stage it becomes necessary to set out more details of the events that
occurred after plaintiff was taken into custody.

The place
where he was held in custody was in the police station at Mokhotlong
Although this adjoined the magistrate's office, he
was allowed no
visits by the magistrate, and was not visited by him

On 7
September, he was taken before a magistrate, charged with a
contravention of the internal security laws, and remanded in custody.

He was then in a very weak condition. He testified that he had
complained to the

8

magistrate
that he had been assaulted, but the magistrate said it was a matter
for the police, and did no more than ask whether
he had been taken to
a doctor.

Appellant
went on to say that when he was admitted to prison, he told the
prison officers that he had been assaulted, they examined
his
injuries and wrote down what they observed. This was later
substantiated when the record was produced the entry made against

appellant's name read

" New several scars on both hands

1. fresh
   wound on left thigh.

   
   

2. wounds
   on r/thigh. Handcuffs small wounds".

   
   

Defendants
called as a witness the prison officer who had made these entries. He
explained that he had actually examined appellant,
and had seen the
scars and injuries he recorded. The wound on the left thigh was
healing up, it was small and oblong in shape,
like an egg The two
wounds on the right thigh were almost healed up When he saw appellant
he "appeared physically deteriorated".
He also testified
that appellant had complained to him that he had sustained the wounds
while he was in police custody. He confirmed
that appellant was "a
well-known man in Mokhotlong" and a wealthy businessman.

On 9
September, two days after having been admitted to prison, he was
taken to see a doctor He testified that he was unable to walk,
and
that an ambulance was called to convey him. He explained that his
feet "were

9

in
trouble" when he walked, that he felt numb, his legs were
painful, and that he could not walk normally. The fact that he
sat on
the ground and complained that his knees and legs were painful and
that he was unable to walk was confirmed by the prison
officer in
charge of the group of awaiting-trial prisoners who were being
escorted to the hospital, and Galled as a witness by
defendants.
Assistance was provided by the hospital's vehicle.

At the
hospital, appellant was seen by a government medical officer, a
German doctor, who prescribed pills and a medication for
rubbing his
feet and his biceps. The doctor gave evidence and said that he had
certified him as "fit for No 1 labour".
This meant he had
no disease or injuries which would have prevented him from being able
to work.

He was
then taken back to gaol, and remained there until 13 September, when
he was released on bail That same day he went to consult
his own
doctor This doctor was not called as a witness as he was not
available A certificate signed by him was produced at the
pretrial
conference, and was seen by the trial judge. Although he ruled that
it was not evidence, he treated it as part of the
pleadings, and
relied upon it as showing an improbability in appellant's version
because the doctor did not record having been
told all the different
kinds of assault which appellant testified to in Court.

At the
trial, appellant himself gave evidence and told the Court of the
various assaults allegedly committed on him. He also called
as
witnesses two

10

other
persons who were in detention at the same time as he was, and who
became his two co-accused when they were later charged with

committing offences under the Public Safety Act. They claimed that
they too had been assaulted by the police while in detention,
but the
kinds of assault allegedly practised on them were in some respects
different from those alleged by appellant. Both testified
that they
had seen appellant while they were all in detention, that he had been
weak, and that they had seen wounds on his thighs
when they had
helped him wash his body. As his final witness, appellant called
another doctor who had examined him shortly before
the trial (but
long after the events complained of). He testified to having seen
superficial scars on each thigh just below the
lateral buttock, and
some healed linear scratch marks above and below the left wrist. The
scars were permanent, and it was not
possible to determine their age,
but they were consistent with burn marks

Defendants
called twelve witnesses, and second respondent also gave evidence.
The twelve witnesses consisted of 3 prison officers,
5 members of the
police and security forces who had been involved in the arrest and
interrogation of appellant, the German doctor
who had examined him
when he was remanded into custody, an electrical engineer, an
official police photographer, and a witness
on the claim relating to
the trucks.

The
electrical engineer had been instructed, after appellant had given
evidence that the current used to give him electric shocks
was taken
from a wall-plug low down on the wall in the interrogation room, to
visit the

11

room and
to see if there still was, or if there were signs of there ever
having been, such a plug there It is common cause that
no such plug
and no such signs were found

I come
now to consider the reasons given by the learned trial judge. As
already indicated, he could find no justification for the
conduct of
the police in keeping the appellant in handcuffs, and awarded
appellant damages for this particular assault.

As to the
evidence of the other assaults, he was not able to accept the
evidence of any witness in preference to any other, judging
by
demeanour alone. He indicated that no witness was sufficiently tested
in cross-examination as to honesty or recollection, and
that
accordingly he could decide the matter only by considering the
probabilities of the respective versions. That means that the
trial
judge was in no better position than we are, and we are free to
consider the probabilities anew. The learned judge obviously
gave the
matter careful consideration, and we regret having to differ from
him, but in our view he appears to have overlooked a
number of
probabilities that favoured the appellant's version and gave too much
weight to what he considered were improbabilities
in that version. In
our opinion, the most significant factor to which insufficient weight
was given was the presence of the wounds
on appellant's thighs

The
wounds were present on his thighs when he was released after 25 days'
detention, and the fresh nature of these wounds must surely
indicate
that he

12

received
these wounds while in custody. Second respondent tried to explain
them away by saying that when he searched appellant on
taking him
into detention, he noticed old wound scars, which appellant
attributed to an earlier car accident in Natal But he denied
having
seen fresh wounds on the thighs, even, though he conceded having
pulled his trousers down to his knees.

The trial
judge made light of this aspect by saying "One would expect
therefore his thighs to be pitted with scars. Instead
there were only
two circular scars which he exhibited". This was a reference to
his exhibiting the scars at his trial, 21
months after the events. We
do not consider this sufficient reason for dismissing plaintiff's
evidence that he had several wounds,
some of which had healed, and
some of which had left scars. There was clear evidence, from
witnesses called by defendant, that
when appellant was released from
detention and remanded into custody, he had fresh wounds on both
thighs, that he was complaining
of sore feet, and that he was too
weak to walk. The implications of this evidence were not examined by
the learned judge. The learned
judge took into account against the
appellant the absence of any wall-plug in the interrogation room, and
rejected his evidence
of having been subjected to electric shocks. He
was undoubtedly correct in finding that it had not been proved on a
balance of
probabilities that the electric current had been derived
from a wall-plug as alleged by appellant, but this does not provide
an
answer as to where the wounds on the thighs came from. Appellant
may have been mistaken as to the source of the current, or he may

even have fabricated the entire aspect of electric shocks,

13

but on
the balance of probabilities, he did receive wounds on his thighs
whilst in detention.

Cases
where there are allegations of assaults committed on detainees in the
course of being interrogated must in their very nature
always give
courts difficulty. There are many methods of assaulting or torturing
persons who are being interrogated which will
leave no visible
indications to serve later as evidence. Devices such as standing a
man naked in front of his interrogators for
2 hours at a stretch,
putting a bag over his head, or making him crouch while holding a
stick behind his knees -all which were
mentioned in this case - are
examples of such methods. The practical effect of this is that
plaintiffs who have been treated in
this fashion will often have
great difficulty in proving it, while the other side of the coin is
that there may be exaggerated
or even false allegations made which
may be difficult to disprove It may well be that appellant has
embellished what was in fact
done to him, but in our view, the
balance of probabilities is that he was subjected to at least some of
the assaults that he complains
of, even if not to all. Appellant was
kept in custody for 28 days, and was questioned every night for
periods between 1 and 2 hours
It is conceded by the police witnesses
that he did not readily give them the information that they wanted.
Considering the fact
that the police con­sidered the public
security to be threatened, it is demanding too high a degree of
naivete from the court
to expect it to believe that all that the
police then did -as Second Record Respondent testified - was "to
insist and warn
him, and advise him to respond to the questions"

14

Continued
questioning of this duration and the continued failure of the
appellant to give the answers which his interrogators wanted
renders
it probable that some coercive measures (though not necessarily all
those alleged by the appellant) would have been used.

It is
relevant here to refer to the handcuffing of the appellant. The trial
judge found that putting the appellant in handcuffs
was "a
useless exercise in restraint". We agree fully with this
conclusion his hands were handcuffed in front of him,
not behind him,
and the police evidence was that the handcuffs were not tight, but
loose. This means they could not restrain him
from banging on the
door of his cell, and in fact, the evidence is that they did not stop
him from doing so The learned judge held
also that to keep the
appellant in handcuffs for 28 days while being locked in solitary
confinement is such unusual and cruel treatment
as to merit the
description of torture With this we also agree. It is also, as the
learned judge pointed out, a breach of the Prison
Rules to use such
form of mechanical restraint for longer than 24 hours. Although
technically the rules may not have been broken
here because the
handcuffs were removed every night during interrogation, the
continual use for 28 days indicates that his captors
resorted to
cruel and unusual treatment, and their purpose can only have been to
try to induce him to reveal the information they
wanted and which
they thought he could provide.

Also
relevant is that the purported justification for keeping the
appellant in custody did not stand scrutiny

15

In other
words, not only did the police handcuff appellant as a coercive
measure, but they also gave a false jus­tification
for their
action.

The
learned judge considered that the readiness of the police witnesses
to admit to having handcuffed the appellant for so long
a period
indicates that they were ready to admit to what they had done wrong.
We find this an unacceptable inference. There was
evidence that
appellant had injuries on his wrists which could have been caused by
handcuffs These wounds had to be explained by
the defendants, and the
more probable ex-planation of their admission of the continued use of
handcuffs is that they thought they
had a better chance of justifying
such use than of being believed in a complain denial. Far more
important than their admission
of the use of handcuffs, in our view,
is the unconvincing manner in which they attempted to justify the
use.

1 have
already pointed out that interrogators have available to them a
number of techniques of persuasion which leave no signs of
their use,
and are almost impos­sible to prove. It is a probability that
interrogators will prefer such difficult-to-prove
methods of coercion
to more unsophisticated methods which leave wounds or scars Where,
therefore, there are some signs of the latter
and the circumstances
point to the use of some coercion, it is probable that other less
provable forms of coercion were also employed.

The trial
judge gave some weight to the appellants failure to give to the
magistrate at his remand, and to the prison authorities,
a full
catalogue of all the things

16

that he
told the Court had been done to him I do not find this so improbable
as to negative the complaints which he did make, and
the hard
evidence of injuries found on physical examination. Where a general
complaint of having been assaulted is made, I would
not expect a full
and detailed account to be given in the circum­stances as they
were described by appellant This would, of
course, be relevant on the
question of whether particular kinds of ill-treatment were
administered, but it appears to have been
used by the trial judge as
a factor rendering improbable all the kinds of ill-treatment
complained of except handcuffing.

The judge
was influenced by the "apparent fitness for hard labour"
found by the prison doctor, despite appellant claiming
to have been
on a diet so far below what must be required for life support. But in
our view the prison doctor's comment should
not have been so readily
accepted His evidence that appellant was "fit for No.1 labour"
is inconsistent with other evidence
that he was even too weak to walk
to" the hospital, and in our view, very little reliance can be
placed on the doctor's finding
In cross-examination the doctor
explained that appellant had stripped only to the waist, and that he
had examined him for heart
and lung disease. He did not examine his
thighs, and was unaware of injuries there this despite the fact that
he had been given
the Medical Reception Register filled in by the
prison officials on which details of appellant's injuries had been
recorded, so
that he could append his signature thereon. When asked
whether he had recieved any complaints about pains