CIV/APN/12/2005

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:

MASEEPHEPHE
TSEPE APPLICANT

AND

THE
COMMISSIONER OF POLICE - 1st RESPONDENT

OFFICER
COMMANDING (CID) PITSO GROUND - 2nd RESPONDENT

ATTORNEY
GENERAL - 3rd RESPONDENT

REASONS
FOR JUDGMENT

Given by
Mr Justice W.C.M. Maqutu on the 10th day of June 2005.

Costs - Habeas corpus - conduct of the police - denial that detainee
is in custody of police - unchallenged evidence showing detainee
has
been in police custody for 7 days - remand to custody on the day
habeas corpus application made - disapproval of conduct of
the
police.

This is
an application for a writ of habeas corpus. A writ of habeas corpus
directs those suspected of having a detainee in their
custody to
produce him - dead or alive. It is particularly fitting where
authorities deny to a

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complainant
that they have the detainee in their custody. I noted with concern
that the police do not understand what it is, and
what it is intended
to achieve. This writ is in modern times in usually directed against
the abuse of power by the police or government.
Mr Mapetla on behalf
of the police argued that the illegality of the detention of the
suspect is a matter that should only be gone
into when the issue of
damages is being determined. But Bradley and Ewing have observed in
Constitutional and Administrative Law
12th Edition at page 561:

"If an individual is wrongfully deprived of liberty, it is not
sufficient that he or she should be able to sue the gaoler
for
damages under the ordinary civil law. Whether detained by an official
or by a private individual, it would be wrong that the
detention
should continue while the process of civil litigation takes its
normal lengthy course. English law provides in the writ
of habeas
corpus a means by which a person detained without legal justification
may secure prompt release. The person responsible
for the detention
is not thereby punished, but the person imprisoned is set free and
may pursue such further remedies for compensation
or punishment as
may be available. Habeas corpus may be sought by convicted prisoners,
those detained in custody pending trial,
and those held by the police
during criminal investigations."

It is
this English tradition to which Lesotho is heir. It is this right to
personal liberty that Section 6 of the Constitution protects.
The
police or the state have no powers of indefinite detention. Once a
person who is

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under
investigation has been detained for more than 48 hours, he is
entitled to release unless detained by order of a court of law.
If
the relatives of a detainee have demonstrated that a detainee had
been detained without a charge for seven days the police could
not
legitimately argue that she was not entitled to seek the intervention
of the courts merely because they brought the detainee
before a
magistrate on the day the relatives sought a writ of habeas corpus.
The reason is simply that the detention of the suspect
had become
illegal. Consequently Lord Birkenhead in the case of Home Secretary v
O' Brien 1923 AC 603 at page 609 described the
writ of Habeas corpus
as:

"The most important writ known to the constitutional law of
England, affording as it does a swift and imperative remedy in
all
cases of illegal restraint or confinement."

In this
case the detainee was brought before a magistrate by the police who
had been denying that the detainee was in their custody
the day
before the application for a habeas corpus was being made. The police
say no costs should be awarded to applicant. The
police have not
challenged the facts as presented by applicant that they denied the
detainee was in their custody and that applicant
saw the detainee in
the custody of Detective Trooper Sekoati with bruises all over the
face. Van Winsen, Cilliers and Loots in
The Civil Practice of the
Supreme Court of South Africa 4th Edition page 708 say in

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awarding
costs, an investigation of the merits has to take place because "a
claim for costs cannot stand alone, a judgment
for costs involves a
decision on the merits" The police have avoided dealing with the
merits in their answering affidavits,
which are important in order to
determine the question of costs in these proceedings.

The issue
in this matter was whether the respondents should be directed to pay
costs, having regard to the circumstances that preceded
the
application for a writ of habeas corpus. Applicant has applied for a
writ of Habeas corpus asking the court to direct the following:

1. That
   the police produce the detainee Seephephe Tsepe forthwith before
   this court so that he can be dealt with according to law.

   
   

2. That
   the police be directed to permit Seephephe Tsepe (the detainee) to
   have access to counsel and his family forthwith pending
   finalization
   of this application.

   
   

3. The
   police should allow the detainee Seephephe Tsepe to be examined by a
   medical practitioner of his choice.

   
   

4. (d)That
   the continued detention of Seephephe Tsepe be declared illegal ab
   initio.

   
   

5. The
   police release the detainee Seephephe Tsepe forthwith.

   
   

6. That
   the police pay costs of the application on an attorney and client
   scale.

   
   

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This
application was on the 7th January 2005 moved ex parte before my
brother Molai J who granted the Interim Order in terms of
which a
rule nisi was issued returnable on the 17th January 2005. Applicant
is the mother of the detainee Seephephe Tsepe. From
the tone of the
application it was clear that she and her counsel felt the police had
treated them unjustly and unreasonably. Consequently
they were even
asking for costs on an attorney and client scale against the police.

Unknown
to them, on the same day that the court made the interim order -that
is the 7th January 2005 - the police had brought the
detainee
Seephephe Tsepe before a magistrate. Before the magistrate the
detainee was given a charge in CR 2808/2004 and remanded
into
custody.

After
many extensions of the rule nisi and postponements. The matter was
finally heard before me on the 30th May 2005. Mr Nathane
appeared for
the applicant - while Mr Mapetla appeared for the respondents.

The
Police do not seem to have read the applicant's affidavit nor did
they bother to deal with the averments contained therein.
Mr Mapetla
for the police argued that because the detainee had been eventually
charged with a

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crime
that was the end of the matter. He was erroneously under the
impression that the application was based on a hearsay report
from
Mo-Africa radio. The applicant should not have come before court (in
his view) and moved the application ex parte. She should
have checked
with the police again to find out what was happening to the detainee.

The
impression I got was that the police never bothered to check the
serious allegations that applicant made against them. Even
the
investigating officer Detective Trooper Sekoati who made an answering
affidavit on behalf of the police ignored the serious
allegations
that were made against him personally. Mr Mapetla seemed to be
unaware that Detective Trooper Sekoati and the police
mentioned by
name in the applicant's affidavit were obliged to answer and
challenge what they considered untrue or incorrect in
the applicant's
affidavit.

The
following facts were unchallenged by the police:

1. Police
   Officer Lebasa had on the 31st December 2004 told applicant that her
   son Seephephe Tsepe had been arrested and had gone
   out with members
   of the investigating team and that applicant should come back at 5
   pm. Police Officer Lebasa at 5 pm told applicant
   that he did not
   know where Seephephe Tsepe was -applicant should come and check the
   following day which was a Saturday.

   
   

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2. Police
   Officer Sekoati (The investigating officer) and other policemen
   denied that applicant's son Seephephe Tsepe had been arrested
   and
   detained. Police Officer Sekoati said to applicant they were still
   looking for Seephephe Tsepe.

   
   

3. On
   the 3rd January 2005 applicant actually saw her son Seephephe Tsepe
   at the Magistrate court with other detainees with bruises
   all over
   the face limping. Detective trooper Sekoati did not allow applicant
   to speak to her son, but referred her to senior
   police officers.

   
   

4. On
   the 6th January 2005 applicant and her counsel went to check the
   Magistrate court records and found that her son Seephephe
   Tsepe had
   not been remanded in custody. When they went to Pitso Ground police
   station Police Officer Makoae denied that Seephephe
   Tsepe had been
   detained by the police and arrogantly said they were still looking
   for her son Seephephe Tsepe.

   
   

5. Mapaseka
   Ferete in her affidavit says in her presence - Police Officer Makoae
   and others arrested Seephephe Tsepe on the 30th
   December 2004 and
   assaulted the detainee. Even to Mapaseka Ferete the police denied
   that Seephephe Tsepe was in their custody
   when she went to see him
   on the 4th January 2005.

   
   

It is not
surprising therefore that with this background of assaults and
denials about the whereabouts of the detainee, applicant
states in
her affidavit that she became apprehensive that her son might be
murdered.

When the
police denied to applicant and her counsel - that the detainee was in
police custody, this imposed an onus of proof on
applicant - to show
that detainee was in fact in police hands. This caused applicant to
get the

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affidavit
of Mapeseka Ferete who was there where the detainee was arrested by
Police Officer Makoae on the 30th December 2004. This
involved time
and expense on the applicant merely because Police Officer Makoae
perversely denied what was in fact true. The court
cannot just ignore
this behaviour of the policemen involved.

Detective
Trooper Sekoati in his affidavit avoided the merits of applicant's
averments and said:

"I have been informed by my attorneys of record and verily
believe same to be true that the only issue that falls for
determination
in this matter is the question whether applicant is
entitled to costs of this application in the circumstances
disclosed... I aver
that at the time applicant filed his papers in
court, the detainee had already been remanded and was therefore no
longer in the
custody of the respondents, hence why the prayers
sought fall away... Had she made proper enquiry, she would have been
informed
about the detainee and therefore abandoned the idea of going
to court."

What Mr
Mapetla failed to recognize (when he gave the police advice) was that
an award of costs is conditioned by surrounding circumstances.
If the
police do not deny that all along they had been playing hide and seek
with the applicant - how can the courts ignore this?
The applicant
had made several enquiries from the police about the whereabouts of
the detainee -according to her uncontradicted
affidavit she was
deceived by the police

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who told
her that they did not have the detainee in their possession. These
facts the police do not deny.

The way
the police treated applicant's averments is flippant and evasive.
They even treated applicant's counsel in a manner an officer
of this
court should not be treated in the course of his duties. Police
Officer Makoae who actually arrested the detainee on the
30th
December, 2004 lied unashamedly to counsel and the applicant and
denied that the police have Seephephe Tsepe in their custody.
If the
police can be allowed to treat the public with such disrespect and
disregard - Lesotho would cease to be a properly run
country in which
public officers are accountable for their acts. The public would
cease to be the employers of public servants
— of which the
police form a part.

The
courts have expressed their disapproval of the state's conduct
through an appropriate order as to costs. In Djama v Government
of
the Republic of Namibia & Others 1993 (1) SA 387 in a habeas
corpus application Muller AJ said at page 396 C to E:

In
respect of costs, I regard the conduct of the respondents herein as
not quite bona fide but certainly unreasonable ... The conduct
of the
officials of first and/

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or second
respondent, being entrusted with upholding the constitution of
Namibia, shows that they acted in a manner unworthy of
that trust and
duty set out before. From the outset, due to the unlawful arrest and
detention of the applicant he was forced to
bring the initial
application..."

Although
the facts do not coincide absolutely, there can be no doubt that the
continued denial of the presence of the detainee compelled
applicant
to bring this application. The particular policemen showed no respect
for the public they are duty bound to serve - and
to the rights of
the detainee under the constitution. The police, government and the
courts are servants of the people, under the
constitution.
Consequently their duty is to protect human rights under the
constitution and thereby uphold the constitution. In
the case of
Jooste NO v Minister of Police & Another 1975 (1) SA 349 at page
358 G H Hart AJ (dealing with police abuse of
the public in which
police had set a dog upon a suspect and lied in court) said:

"Certainly the conduct of the second defendant and Sergeant
Barendse calls for the severest strictures in regard to the type
of
evidence they were prepared to give, when that evidence is compared
with their previous statements; and the manner in which
they prepared
such statements and their attempted explanations of their conduct
does them no credit, particularly as members of
a force entrusted to
maintain law and order, to whom truthfulness and accuracy in relation
to facts deposed to by them should be
a guiding and shining
principle."

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In that
case the court awarded against the Minister of Police costs on an
attorney and client scale. In this case I will not award
costs on an
attorney and client scale because Detective Trooper Sekoati avoided
continuing the deceipt in his answering affidavit.

However,
I was taken aback by this remark of Detective Trooper Sekoati at
paragraph 8 of his answering affidavit in opposing applicant's

application for costs, where he said:

"Had she made a proper enquiry, she would have been informed of
the position of the detainee and therefore abandoned the idea
of
going to court.

I thought
this statement was insensitive because the day before coming to court
for a writ of habeas corpus - the 6th January, 2005,
applicant and
her counsel had been before the Pitso Ground police. According to
applicant at paragraph 15 of her founding affidavit
where she says:

"Before we could leave however, Police Officer Makoae came to us
and arrogantly told us that the detainee was not in police
custody
and they were still looking for him."

The only
inference to make is that Detective Trooper Sekoati and other
policemen only sent the detainee to the magistrate because
they
became

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aware
that with counsel being involved an application for a writ of habeas
corpus was imminent. Consequently it ill behoves Trooper
Sekoati to
be smug about this.

In the
light of the aforegoing I made the following Order:

Costs of
this application - including argument are awarded against
respondents. Their unchallenged bad treatment of applicant was

callous.

On the
30th May 2005, I promised to given the reason later - which I have
given above.

W.C.M.
MAQUTU

JUDGE

For
Applicant : Mr Nathane

For
Respondents : Mr Mapetla

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