C. of A.
(CIV) No.17 of 1984
LESOTHO COURT OF APPEAL
Matter between :
FRANK MAPETLA Respondent
Mapetla (the Respondent on appeal) brought an action in the High
Court for damages for unlawful arrest, unlawful detention
assault. The total sum claimed was M50,000; the Plaintiff succeeded
and was awarded a total of M11,000. The Defendant is the
It is not
in dispute that on 26th November, 1982 and in Maseru the Respondent
was arrested by members of the Lesotho Mounted Police
Intelligence Service). He was detained until 29th November, 1982 and
plea the arrest was justified on the grounds that it was one lawfully
made in terms of Section 32 of the Internal Security
1982. Subsection (1) reads as follows –
"A member of the police force may arrest without warrant a
person whom he reasonably suspects to be a person concerned in
judgment Kheola A.J. (at pages 11-12) produced the whole of the
definition of "subversive" in the Act. I shall
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.
decision to make the arrest was Col. Letuka's; the other policemen
gave effect to that decision. Quite appropriately Kheola
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
Sekhesa was detained under the same legislative provision on 3rd
November, 1982 after returning to Lesotho on 2nd November,
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
The Respondent advised him that he could leave Lesotho by crossing
the Caledon River at Don-Don. Sekhesa was arrested because
suspected that he was connected with the Lesotho Liberation Army. As
Kheola A.J. correctly points out the police must have
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.
however, Respondent's assistance and advice to Sekhesa which Col.
Letuka relied upon as the ground of reasonable suspicion.
Respondent was not detained until 26th November, 1982; Col. Letuka,
most unconvincingly, explaining that the cells
learned judge a quo was unconvinced by the evidence for the Appellant
and seems to have inclined to accept the argument advanced
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
A.J. having heard evidence believed the Plaintiff and did not believe
Col. Letuka nor Trooper Mokhajoa. I can find no reason
with Kheola A.J.'s approach nor indeed was any persuasive reason for
so doing advanced from the Bar.
context of what occurred I regard the terms of the certificate signed
by Respondent on his release as being significant.
arrest and detention for questioning" is said to be in respect
of "possession of unlicensed firearm or
Sekhesa is not mentioned at all. This adds support to the learned
finding that the Sekhesa incident was not, in truth, the ground for
Mr. Muguluma urged that the security forces may act on information
given by informers and which it is prejudicial to disclose.
be so but in this specific case this is pure speculation as this was
not suggested by Col. Letuka in evidence.
now to the assault.
issue the trial Judge believed the Respondent and did not believe the
police evidence. Indeed it was not convincing evidence.
Mokhajoa's version about a Sunday interrogation, in particular, is
unsatisfactory more especially in that it was not put
that he was not interrogated on the Sunday. The suggestion that Col.
Letuka did not participate in the Respondent's
I am not
persuaded that there is any ground to upset Kheola A.J.'s finding
that an assault was proved.
learned Judge awarded damages of M11,000.00 in all; M8,000.00 for the
arrest and detention and M3,000 for the assault.
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.
vs Wholesale Coal Suppliers Ltd 1941 A.D. 194 at 200
question of a specific misdirection arises in this case, save in one
respect to which I refer below. On the contrary, the learned
most carefully considered the evidence and laid proper
the pertinent facts. The Respondent is an elderly man (nearly 78
years of age at the relevant time). He is a man of standing
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.
Respondent was illegally arrested and detained for some 4 days. His
conditions of imprisonment were degrading. Whilst in custody
insulted, threatened, and physically assaulted. He was not
interrogated forthwith but left in custody for some days.
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.
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
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
make that award.
is the effect on costs? In Lesotho Electricity Corporation vs
Forrester (C. of A. (CIV) No.7 of 1978) Tebbut J.A. considered
matters. He wrote –
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
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)."
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.
appeal succeeds to the extent that the award of damages is altered to
"There will be judgment for the Plaintiff in the sum of M8,000
the Appellant will pay its own costs and 80% of the costs of the
Respondent on appeal.
Judge of Appeal
(Sgd.) W.P. Schuts
(Sgd.) S. Aaron
on this 26th day of July 1985 at MASERU.
Appellant : Mr. Muguluma
Respondent : Mr. Kuny
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