CIV/T/302/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

'M'ANKILENG
A. RAPOSHOLI PLAINTIFF

AND

THE
COMMISSIONER OF POLICE 1st DEFENDANT

ATTORNEY-GENERAL
2nd DEFENDANT

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo On the 30th May, 2007

This is a
case in which the plaintiff has claimed:-

CLAIM A
: unlawful arrest in the sum of M50,000.00

CLAIM B :
unlawful assault in the sum of M 100,000.00

CLAIM C
: unlawful detention in the sum of M 100,000.00

and costs of suit.

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The
plaintiff has the only witness and she testified she was employed by
government as an Accounts Clerk of the government hospital
in
Butha-Buthe. She had asked for a vehicle to take her to the
Sub-Accountancy and after sometime she was told an ambulance was

available and she had booked the ambulance to the Sub-Accountancy
where she collected a cheque and forwarded to the bank in the

ambulance. She had cashed the cheque and money put in a big-envelope
marked "government service" and driven towards the

hospital. On the way before reaching hospital but close to it next to
a stop sign a white vehicle appeared colliding with the ambulance
and
a person alighted rushing to the side of the driver carrying a gun
and there was another person to her left side also carrying
a gun.
The two men opened the ambulance doors attempting to seize the
envelope she was carrying and they struggled over it until
she was
overpowered and fell to the ground. People selling fruit nearby
raised an alarm and the men took the money, fled towards
Leribe. She
rushed to the hospital reporting what had happened to government
money. She had gone to report to the police explaining
what happened
but

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police
has asked her to return to the office and calm down a little, but
shortly two women police had taken her to the Charge Office
where her
statement was reduced to writing and she signed it. She says police
took her cellphone saying she would otherwise hide
information. She
was released police saying she was to come the following day and she
had on 13/01/2004 gone to her home and the
following day on
14/01/2004 she went to work and while at work at 9.00 a.m two women
police had come saying they had come to fetch
her and had gone with
them to their office where they said they were going to carry out
their investigations and then there were
three male policemen and
three female police. She had denied taking the money saying it was
snatched from her. After intensive
questioning she was told she was
under arrest and looking at her watch found it was 11.00 a.m and
she'd asked what to do with hospital
keys and she had been given two
police women to return the keys to the hospital. She had waited the
whole day and about 3.00 p.m
to 4.00 p.m. she got into a police
vehicle but went round collecting a blanket rolled into the vehicle.
She had then been taken
to Muela Police

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Post
where she was questioned and stripped to her underwears the while the
three male and three female police officers were beholding
her being
asked to lie down and put her hands at the back handcuffed, made to
wear gumboots with water poured over her the while
asked to produce
the money with her head covered in plastic bags and her hair being
pulled and pummeled with fists and sworn at.

It was in
course of the ill-treatment that she implicated herself saying she
knew where the money was and would take them to where
it was but
later retracted her statement saying she was implicating herself
falsely. They had then left "Muela and gone to
Caledonspoort the
same day on 14/01/2004 where she was locked up in a cell and released
on 16/01/2004 at 5.00 p.m. At Butha-Buthe
Police Station she was
shown three vehicles and pointed at the one which took the money. The
witness has testified she did say
her cellphone was taken by the
police and it had not been returned to her by them. She says her
arrest, detention and assault had
affected her adversely. She had
been given a

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medical
form and saw a doctor but the medical certificate was with police who
filed it in their docket. She says by events of 13/01
/ 2004 have
affected her adversely she means her colleagues no longer trust her
and snub her. People who robbed her were not known
to her. Her
relationship with her husband had taken a nosedive and life is no
longer normal her colleagues calling her a thief.
She says at the
time she struggled over the envelope with the thief she sustained no
injury and will deny any evidence that she
signed a form showing at
the time money was seized from her she injured her hand.

Both Dwl
and Dw2's evidence stood well discounting any unlawfulness in the
arrest and detention of the plaintiff for, according
to them,
plaintiff was not taken to 'Muela and subjected to the ill-treatment
and indignities she claimed. They conceded plaintiff
taken to
Caledonspoort Police Post by reason of there being no female cells at
Butha-Buthe Police Station. It was as a request
of plaintiff
suspicion against Retselisitsoe Kapa that arrests were made of the
culprits and

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had
plaintiff not been taken in for questioning, investigations might
have stalled. It was necessary after plaintiff voiced her
suspicions
concerning Retselisitsoe Kapa for investigations to test this
evidence before releasing plaintiff and once the evidence
passed the
test she was released within the bounds of the 48 hours rule.
According to these witnesses, the arrest of plaintiff
was justified
Dw3 was an excellent witness for the defence but conceded there was
no proof that when plaintiff arrested and detained
she had sustained
any injury there being proof, on the contrary, that when she was
released there was such injury testified to
by medical certificate.
The court agrees for in as much as when a suspect is arrested by
police there has to be evidence of whether
she is injured, by the
same token when a suspect is released there has to be evidence of
injury or otherwise.

Quite
wisely Mr. Mapetla was adamant unlawful arrest and detention were not
proved, he nevertheless relented there's proof when
plaintiff was
arrested and detained she was not injured.

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I may
perhaps also mention that the medical certificate was handed in as
identification for the reason that it is a copy it being
claimed the
original is in police docket and in the course would be handed in.
Unfortunately it would appear the original is irretrievably
lost, the
reason a copy has been adverted to.

Accordingly,
while the court dismissed claims based on unlawful arrest and
detention, it nevertheless entered judgment in favour
of the
plaintiff in the sum of M8,000.00 plus costs for the injury she
sustained termed unlawful assault in her summons. The court
based
itself on the figure of M8,000.00 by reason of the fact that although
the assault was trifling, courts don't take kindly
to police
assaulting detainees while in their custody mindful of the fact that
the plaintiff was assaulted while the police were
performing their
statutory duty in course of interrogating plaintiff and in any event
the duty did not depend on the exercise by
the police of any personal
discretion save acting as servants of the Crown

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under its
control in carrying out the duty (see Sibiya v Swart, N.O, 1950 (4)
SA 515 (A.D).

G.N.MOFOLO

JUDGE

For the
plaintiff : Mr. Moeti

For the
Defendants : Mr. Mapetla

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