CIV/APN/225/82

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

MOTHEO
MOKOALELI Applicant

V

COMMOSSIONER
OF POLICE Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Mr. Justice F.X. Rooney on the 6th day of October. 1982.

Mr.
Gwentshe for the Applicant Mr, Ntlhoki for the Respondents,

On the
10th September, 1982, the applicant herein moved this Court for an
order in the nature of habeas corpus in respect of his
son
Lehlohonolo Mokoaleli who was taken into Police custody on the 7th
September. A rule nisi was issued and an affidavit in opposition
was
filed by the respondents. On the 23rd September, I allowed the
application with costs and I now give my reasons for making
the
order.

In his
founding affidavit the applicant stated that his son was born in 1958
and that thereafter he had a dispute with the boy's
mother
'Marapelang Mokoaleli. As a result she left with her son to live in
Johannesburg where the boy grew up.

Chief
Lefa Moremoholo of Bela Bela in the Berea district confirmed the
identity of the person detained and that he was born in Lesotho
in
1958. The chief said that he had made arrangements for the
applicant's son to pay basic tax in Lesotho.

From the
manner in which the application was presented, it is obvious that the
applicant was under the impression that his son was
being detained
under the laws relating to the control of aliens entering and

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residing
in Lesotho. He sought in the present proceedings to establish inter
alia his son's birthright as a citizen of this country.

The
answering affidavit was sworn by General Shadrack Matela, the
Commissioner of Police.

He said :

"On 7th September, 1982, I received information which roused my
suspicion that one Bon Singo, a South African citizen born
in Cape
Town and who had previously been and was once more in Lesotho under
the name of Lehlohonolo Mokoaleli, had committed or
was intending to
commit certain acts in contravention of section 12 (3) of the
Internal Security (General) Amendment) Act No.1
of 1974.

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In
the evening of the same day, 7th September, 1982 around 7.00 p.m. I
sent out some senior members of the Police Force led by Captain

Takalimane to mount a search and arrest Ben Singo alias Lehlohonolo
Mokoaleli for interrogation into the information I easonably

suspected him to be in possession of.

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The
said Ben Singo also known as Lehlohonolo Mokoaleli is still in
detention to date and has not answered all questions to my
satisfaction
and I verily believe that his continued detention is
justifiable."

In addition General Matela confirmed the arrest of the applicant and
the issue of an order of detention in

respect of him, a copy of which he annexed to his affidavit. The
order names the detainee as Lehlohonolo Mokoaleli.

In a
replying affidavit, the applicant denied that his son was born in
Cape Town. He admitted that the alias Ben Singo was acquired
by his
son in Johannesburg as he grew up as a member of the Singo family.
The applicant disputes General Matela's assertion that
Lehlohonolo
was detained for reasons authorised by security legislation and
stated his belief that his son was detained for a suspected
breach of
the immigration laws.

The form
of affidavit used by General Matela in this case is similar to that
used in 'Manthakoana Mahase v. Commissioner of Police
and Another
CIV/APN/70/82

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unreported
and about which I made the following observations:

"Section 12 of the statute quoted by General

Matela amends section 31 of the Internal Security (General) Act 1967
in sections (3) (4). There is no sub-section (3) to section
12 of the
1974 Act. The amended section 31 includes the enabling provisions
which authorises in limited circumstances the detention
without trial
of certain persons. The new sub­section does not create any new
offences or impose any obligations and it is
therefore difficult to
understand how it can be said that a person had committed or was
intending to commit offences in contravention
of the section.

Be that as it may, General Matela did not allege that he suspected
upon reasonable grounds that the Mahase brothers or either of
them
had committed or intended to commit any offence under the 1967 Act or
any offence involving damage to property of the state
or of any
person. The General did not say that he was of the opinion that the
Mahases were in possession of information relating
to the commission
of an offence or intention to commit an offence. Instead, it is clear
from what General Matela has deposed to
in the affidavit quoted above
that he acted on information which aroused his suspicions. He has
given no indication as to the nature
or extent of the information
upon which he relied.

The point to be emphased is that the enabling section 31 (3) does not
authorise the Commissioner or anyone else to arrest or cause
the
arrest of any person upon suspicion unless it is based upon
reasonable grounds as illustrated in the recent case of 'Masefatsana

Moloi v. Commissioner of Police and Another (CIV/APN/203/81
(unreported)). As the arrest and the detention of the two men was
procured because of rumours, the police acted outside the scope of
the enabling legislation, these were unlawful actions taken by
the
police and this Court was obliged to put an end to this state of
affairs by ordering the immediate release of the brothers
from
custody."

I am
unable to see any distinction between the two cases and none has been
indicated to me. There is, therefore, no reason why a
different view
should be taken of this application.

Mr.
Ntlhoki informed the Court that the exact grounds upon which General
Matela acted in this matter could not be disclosed to this
Court for
reasons of State security.

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So be it.
In hiding behind. the defensive screen of State security, the
respondents at the same time effectively disarmed themselves.
In the
case of 'Masefatsana Moloi v. Commissioner of Police and Another
CIV/APN/203/81 (unreported having referred to the case
of Sigabo v.
Minisary of Defence and Police and Another 1980(3) S.A.

I concluded.

"Where an official in the exercise of his functions denies that
he has acted unlawfully or unreasonably and avers that he
has acted
within the limits of the powers conferred upon him by a statute and
that he has reason to believe the existence of the
state of affairs
which the statute requires must exist before the powers may be
exercised, but, declines to state what his reasons
are for that
belief, or what the circumstances are which rendered his belief
reasonable, that may in a proper case give rise to
an inference that
the powers conferred by the statute were improperly exercised and
that the reasonable belief which was a con­dition
for their
exercise did not exist. (Sigaba's case Supra). In the result, the
exercise of State privilege may have the un-forseen
result that the
State is thereby unable to establish that its officers acted in
accordance with law."

The Court
was left in the position that the applicant's allegations were simply
denied and ineffectively answered by a bald and
unsupported statement
that Lehlohonolo was lawfully detained. Where the liberty of an
individual is in issue this Court cannot
be satisfied by such an
answer.

In the
result therefore the respondent failed to satisfy me that the arrest
and detention of the applicant's son was in accordance
with law. It
was directed that he be immediately released and that the costs of
the proceedings be borne by the respondents.

F.X.
ROONEY,

JUDGE

6th
October, 1982.

Attorney
for the Applicant : Mohaleroe, Sello & Co.

Attorney
for the Respondents: Law Office.