CIV/T/234/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of

MAKHOABE
MOHALEROE

v.

THE
SOLICITOR GENERAL & COMMISSIONER OF POLICE

JUDGMENT

Delivered
by the Hon. Mr Justice J.L. Kheola on the 5th day of August, 1985

In this
action the plaintiff is claiming –

1. Payment
   of R5,000 for unlawful arrest by second

   
   

2. defendant,

   
   

3. Payment
   of R5,000 being damages for pain and suffering for unlawful assault
   by second defendant,

   
   

4. Payment
   of R600 for loss of earnings,

   
   

5. Payment
   of R12.50 being for medical expenses, and

   
   

6. Costs
   of suit.

   
   

In the
pre-trail conference held on the 2nd August, 1985 the defendants
admitted liability for what they called minor assaults and
made a
tender of R1,500-00 which plaintiff accepted. The defendants further
admitted liability for medical expenses The plaintiff
agreed to drop
his claim for payment of R600 for loss of earnings and costs of suit.
The parties further agreed that the only issue
they would argue was
on points of law regarding the lawfulness/unlawfulness of plaintiff's
arrest by the second defendant.

It seems
to me that although the summons alleges unlawfull arrest, a proper
reading of the papers shows that it is the detention
after the

2

first
forty-eight hours had expired that the plaintiff is challenging.
There is no allegation that the original arrest for robbery
was not
based on reasonable grounds as required by section 24 (b) of the
Criminal Procedure and Evidence Act 1981. The issue is,
therefore,
whether the further detention authorized by the magistrate was
unlawful

It is
common cause that the plaintiff was arrested without a warrant on the
15th February, 1983 on suspicion of robbery and was
kept in the
custody of the police. On the 17th February, 1983 the police made an
application to the magistrate of Maseru for a
warrant for the further
detention of the plaintiff -The magistrate duly signed the warrant
and authorized the further detention
in terms of section 33 of the
Criminal Procedure and Evidence Act 1981 which reads as follows

"Any judicial officer may issue a warrant for the arrest of any
person or for the further detention of a person arrested without
a
warrant on a written application subscribed by the Director of Public
Prosecutions or by the public prose­cutor or any commissioned

officer of the police setting forth the offence alleged to have been
committed and that, from information taken upon oath, there
are
reasonable grounds of suspicion against the person, or upon the
information to the like effect of any person made on oath before
the
judicial officer issuing the warrant".

Mr
Khauoe, for the plaintiff, has argued that the relevant section is
section 32 which prescribes the procedure after a person has
been
arrested without a warrant I do not agree with him. The two sections
deal with the same subject and section 33 deals specifically
with the
kind of evidence that must be adduced before the magistrate to enable
him to issue a warrant of the arrest of any person
or for further
deten­tion of a person arrested without a warrant.

I have
come to the conclusion that the further detention was lawful.
Judgment is entered for plaintiff in the sums of R1,500-00
for
assault and R1 2-50 for medical expenses There is no order for costs.

J L.
KHEOLA

JUDGE.

5th
August, 1985.