C. of A. (CIV) No.17 of 1984
IN THE LESOTHO COURT OF APPEAL
In the Matter between :
SOLICITOR GENERAL Appellant
and
SIMON FRANK MAPETLA Respondent
HELD AT MASERU
CORAM:
Schutz P.
Aaron J.A.
Wentzel J.A.
JUDGMENT
Mr. F.S. Mapetla (the Respondent on appeal) brought an action in the High Court for damages for unlawful arrest, unlawful detention and assault. The total sum claimed was M50,000; the Plaintiff succeeded and was awarded a total of M11,000. The Defendant is the Appellant in this Court.
It is not in dispute that on 26th November, 1982 and in Maseru the Respondent was arrested by members of the Lesotho Mounted Police (National Intelligence Service). He was detained until 29th November, 1982 and then released.
In the plea the arrest was justified on the grounds that it was one lawfully made in terms of Section 32 of the Internal Security (General) Act 1982. Subsection (1) reads as follows –
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"A member of the police force may arrest without warrant a person whom he reasonably suspects to be a person concerned in
subversive activity."
In his judgment Kheola A.J. (at pages 11-12) produced the whole of the definition of "subversive" in the Act. I shall not repeat it. As the Court a quo rightly held the onus was on the Defendant to justify the arrest and subsequent detention. To succeed in so doing the Defendant had to show that when Colonel Letuka ordered the arrest of the Respondent he reasonably suspected that the Respondent was a person concerned in subversive activity. 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. (See Shaaban Bin. Hussein and Others vs Chong Fook Kam and Another (1969) AER (PC). It is this requirement of reasonableness which is the safeguard given against capricious arrests.
The decision to make the arrest was Col. Letuka's; the other policemen gave effect to that decision. Quite appropriately Kheola A.J. applied himself to the question whether Col. Letuka and the other defence witnesses had established that the arrest was made upon the basis of a reasonable ground of suspicion that the Respondent was concerned in subversive activities.
A certain Sekhesa was detained under the same legislative provision on 3rd November, 1982 after returning to Lesotho on 2nd November, 1982. He was interrogated and released on 3rd November, 1982. Whilst detained Sekhesa revealed that he had been to Respondent's home and reported to him that he was fleeing as he feared being killed by the
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police. The Respondent advised him that he could leave Lesotho by crossing the Caledon River at Don-Don. Sekhesa was arrested because it was suspected that he was connected with the Lesotho Liberation Army. As Kheola A.J. correctly points out the police must have been satisfied that Sekhesa was not so involved otherwise he would not have been released on the day of his detention; and, indeed, this was the burden of Col. Letuka's evidence.
It is, however, Respondent's assistance and advice to Sekhesa which Col. Letuka relied upon as the ground of reasonable suspicion. Nonetheless Respondent was not detained until 26th November, 1982; Col. Letuka, most unconvincingly, explaining that the cells were full.
The learned judge a quo was unconvinced by the evidence for the Appellant and seems to have inclined to accept the argument advanced on behalf of Respondent that the Sekhesa affair was not the real reason for the arrest but that Respondent's conduct in writing articles critical of the Government was the true reason and that the Sekhesa affair was preferred in default of a tenable ground for arrest.
Kheola A.J. having heard evidence believed the Plaintiff and did not believe Col. Letuka nor Trooper Mokhajoa. I can find no reason to quarrel with Kheola A.J.'s approach nor indeed was any persuasive reason for so doing advanced from the Bar.
In the context of what occurred I regard the terms of the certificate signed by Respondent on his release as being significant. There "the arrest and detention for questioning" is said to be in respect of "possession of unlicensed firearm or press articles." Sekhesa is not mentioned at all. This adds support to the learned
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Judge's finding that the Sekhesa incident was not, in truth, the ground for the detention.
On appeal Mr. Muguluma urged that the security forces may act on information given by informers and which it is prejudicial to disclose. That may be so but in this specific case this is pure speculation as this was not suggested by Col. Letuka in evidence.
I turn now to the assault.
On the issue the trial Judge believed the Respondent and did not believe the police evidence. Indeed it was not convincing evidence. Trooper Mokhajoa's version about a Sunday interrogation, in particular, is unsatisfactory more especially in that it was not put to Respondent that he was not interrogated on the Sunday. The suggestion that Col. Letuka did not participate in the Respondent's interrogation seems most improbable.
I am not persuaded that there is any ground to upset Kheola A.J.'s finding that an assault was proved.
The learned Judge awarded damages of M11,000.00 in all; M8,000.00 for the arrest and detention and M3,000 for the assault.
In the appeal the Appellant submitted that the quantum awarded by the trial Judge was excessive. Our function, on appeal, is to consider what we consider to be the appropriate quantum and if that differs substantially from the figure awarded we must interfere.
Sandier vs Wholesale Coal Suppliers Ltd 1941 A.D. 194 at 200
No question of a specific misdirection arises in this case, save in one respect to which I refer below. On the contrary, the learned Judge most carefully considered the evidence and laid proper
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stress on the pertinent facts. The Respondent is an elderly man (nearly 78 years of age at the relevant time). He is a man of standing in the Kingdom and prominent in the life of the Kingdom. He is a Chief. His family is a distinguished one. Indeed, one of his sons was the Chief Justice. He himself contributed to the intellectual life of the people of Lesotho.
The Respondent was illegally arrested and detained for some 4 days. His conditions of imprisonment were degrading. Whilst in custody he was insulted, threatened, and physically assaulted. He was not interrogated forthwith but left in custody for some days.
No doubt the learned Judge felt it appropriate that his disapproval of this conduct should be expressed in the amount of damages he gave. He, perhaps, gave consideration to the depression suffered by the Respondent after his experience of detention both in his award on the assault and in the award on the arrest and detention. To that extent there was perhaps some repetition of award.
That, however, does not seem to us to be decisive the issue we must decide in the first instance is what we consider to be the appropriate
award. We prefer to consider the events together and make one award. In a real sense, Kheola A.J. did this as well and his award is M11,000 in total. (M8,000 plus M3,000). We, on consideration, conclude that M8,000.00 in total is the proper level and we would
reduce the amount by M3,000. That is substantially different from Kheola A.J.'s award and we are therefore entitled to interfere and to make that award.
What then is the effect on costs? In Lesotho Electricity Corporation vs Forrester (C. of A. (CIV) No.7 of 1978) Tebbut J.A. considered these matters. He wrote –
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"The fact that an Appellant succeeds in an appeal in having an award substantially reduced does not necessarily entitle him to his costs of appeal (see Cilliers: Law of Costs PP 305-306; Mahomed v Nagdee 1952(1) SA 410 (AD) at p.420; Mouton v Die Mynwerkersunie 1977(1) SA 119 (AD) at pp 149-150; Protea Assurance Co. Ltd. v Martinise 1978(1) SA 963 (AD) at p. 978; Lefalatsa v Ofinam (Civil Appeal No.5 of 1978). The court of Appeal is entitled to award an appellant costs of appeal "to an extent dependent on the circumstances of the case" (Mahomed v. Nagdee, supra, pp 420-421); or to order respondent to pay appellant's costs or a portion of them (of Mouton's case, supra)."
Following that approach we consider that the substantial issue on appeal was whether the judgment on the merits should stand. The issue of quantum occupied but little of the time of the appeal. An indication of some success on appeal is appropriate but no more.
In the result –
The appeal succeeds to the extent that the award of damages is altered to read
"There will be judgment for the Plaintiff in the sum of M8,000 plus costs"
On appeal the Appellant will pay its own costs and 80% of the costs of the Respondent on appeal.
(sgd.)...E.M.Wentzel
E.M. WENTZEL
Judge of Appeal
I agree (Sgd.) W.P. Schuts
W.P. SCHUTZ
President
I agree (Sgd.) S. Aaron
S. AARON
Delivered on this 26th day of July 1985 at MASERU.
For Appellant : Mr. Muguluma
For Respondent : Mr. Kuny
