Seemahale v Commissioner of Police and Others (CIV/APN/439/2003 )

Case No: 
CIV/APN/439/2003
Media Neutral Citation: 
[2004] LSHC 66
Judgment Date: 
3 May, 2004

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CIV/APN/439/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:

'MATHABO SEEMAHALE Applicant

and

COMMISSIONER OF POLICE 1st Respondent

O/C C.I.D. MABOTE CHARGE OFFICE 2nd Respondent

ATTORNEY GENERAL 3rd Respondent

DIRECTOR OF PUBLIC PROSECUTIONS 4th Respondent


For the Applicant : Mrs Lethola

For the Respondents: : Miss Nkaota


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 3rd day of May 2004


The issues that remain to be decided at this stage are the questions of costs and whether the application ought to have been confirmed or discharged in the circumstances where prayer 2(a) of the Notice of Motion (infra) had purportedly (as Applicant contended) been complied with.


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It had not been denied that Mr Seemahale (Applicant's husband) had been kept in detention beyond forty eight hours without there having been an application for extension of that period of detention. A short answer is required in the whole debate about the question whether Mr Seemahale's said detention which caused launching of the application was lawful? If the answer is in the affirmative Applicant is entitled to have the application confirmed with costs. If when the application was made Mr Seemahale was still in detention it is not important whether on the day he was to appear before the Court he was still in detention or he had been released already.


The Court was asked by the Applicant to confirm the interim order obtained on the 15th October 2003. The detainee had in the meantime been released. I had on that date issued a rule nisi as sought in a Notice of Motion in, which the prayers sought were as follows:


"1. dispensing with the rules of Court concerning forms, notices and service of process on account of the urgency of this matter;


  1. a rule nisi issue returnable on a date and time determinable by this Honourable Court calling upon Respondents to show cause if any, why the following order shall not be made final;


    1. First and Second Respondents and officers subordinate to them be directed to produce to this Court the body (person) of Sekhonyana Seemahale forthwith in order to be dealt with in accordance with the law;


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  1. First and Second Respondents, including officers subordinate to them be directed to explain the cause and justification of the continued detention of Sekhonyana Seemahale including the cause and justification of any injuries sustained by Sekhonyana Seemahale during his arrest and/or whilst in police custody;


  1. declaring the continued detention of Sekhonyana Seemahale at Mabote Charge Office or any at any other police station following his arrest on 10th October 2003 as being wrongful and illegal;


  1. directing First and Second Respondents, including officers subordinate to them to release or cause to be released from custody and set free unconditionally Sekhonyana Seemahale with immediate effect;


  1. directing Respondents to pay the costs of this application;


  1. Granting Applicant further and/or alternative relief. 3. Prayer 1 and

2(a) to operate with immediate effect.


It was on the 16th October 2003 at 3.30 pm and not at 9.30 am when Mr Seemahale was brought to Court as the Court had directed. It was clear that he was injured. The suspicion that he had been assaulted by officers of the Second Respondent and this had obviously given impetus to the application. It was reported that Mr Seemahale had been on that morning of the 16th October sent, for remand before the learned magistrate of Berea who released him on his own recognisance. Mr Seemahale was charged with a co-accused with the crime of Robbery whose particulars were to be found in the charge sheet annexed to the


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affidavit of one of the First Respondent's deponents.


The application became opposed and two opposing affidavits were filed by the First Respondent's officer namely police officers Khotso Lelimo and Mohapi Chapi which affidavits were both filed on the 30th October, 2003.


On the 16th October, 2003 when the Respondents had been asked to produce the Applicant's husband the matter had then been postponed to the 27th October, 2003 to enable the Respondents to answer. This they did as aforesaid. On the 27th October 2003 the matter had then been postponed to the 10th November 2003 and then to the 14th November 2003 when the Court heard argument.


A notice of set down was then filed on the 4th November 2003 which appointed the date of the 10th November 2003. It is pertinent to note that not only had the date been appointed by Court during its postponement of the case the Applicant had not filed her replying affidavit. This affidavit was filed on the same date following on and after the filing of the notice of set down. This gave rise to an objection by Miss Nkaota as shown herein.


This state of affairs attracted an objection said by the Respondents which


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in terms of 29(3)(a) and an application for condonation by the Applicant.


Having heard Mrs Lethola's explanation for having filed a final notice of set down belatedly and the explanation from Miss Nkaota about the first mentioned objection, both Counsel agreed that the objections needed not to be pursued. These included the objection about the flaws in the answering affidavits in terms of section 7 of Oaths and Declarations Regulations 1964. See in that regard Bantu Sports Union vs Bantu Football Club 1982-1984 LLR 351.


In any event I would have dismissed all the above objections. Even if they be valid I did not see how those technicalities were such that I could not allow for condonation with respect to the first and a correction or an amended in the other one. Both Counsel accurately sensed that. I however would not state my reasons therefor because Counsel agreed that they will move on to argue the issues raised as shown earlier. These I propose to discuss presently.


It was not denied that Applicant's husband was arrested on the 10th October 2003 by police officers subordinate to Second Respondent. It was again not denied that Applicant's husband was brought before the Court on the 16th October 2003 by Respondents' Counsel and not by officers of the Respondents. This (that he was produced by Counsel) is not significant in the light of the admission by Mohapi Chapi that the reason for the continued detention of the


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Applicant's husband were that:


"................the detainee's medical reports were still in the doctor's hands at Queen II Hospital and the Court does not remand injured detainees without first having seen their medical reports were only given on the 16th October 2003 which was the day of their check-up hence why we were able to take detainees to (Court) immediately after the check-up." (My emphasis)


See paragraph 7(b) (A-D para 9 thereof). This aspect of the need to follow up the check-up of the detainees as a reason for continued detention is further confirmed by Khotso Lelimo in paragraph 6 (AD PARA 7 THEREOF) to say that the Applicant's husband had been taken to the doctor on the 10th October 2003. Again the doctor had instructed that they (together with his colleague) should go back to check up after seven (7) days. It was not arguable that the doctor could have given those instruction and that in fact the check-up did follow. If this was a reason for the continued detention it begs the question whether the Respondents officers had been prepared to release the Applicant's husband unconditionally when they knew and had been aware that the period of lawful extension had transpired or whether it was a lame excuse. See prayer 2(d). If it was unreasonable and a lame excuse the rule has to be confirmed.


In Habeas Corpus (de libero homine exhibendo) applications one proceeds on the basis that:


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".... prima facie therefore, every person arrested by the warrant of the Minister, or by any other person, is entitled to ask this Court for his release, and this Court is bound to grant it, unless there is some lawful cause for his detention."


As quoted in Ganyile v Minister of Justice and Others 1962(1) SA 647 (ECD) at 654. In the latter case de Villiers JP at page 654 states very usefully:


"....... The Court should rather be astute to find a means of exercising its function and jurisdiction in the protection of a citizen from a potential inroad on his liberty."


This should be a prelude to the question whether the instant application was justified.

It was not denied by the Respondents that as a matter of fact the forty eight hours period of detention had been exceeded. The procedure is best seen as reflected in section 32 of the C P & E (1) as follows:


"32 (1) No person arrested without warrant shall be detained in custody for a longer period than in all circumstances of the case is reasonable and such period shall, subject to sub-section (2), unless a warrant has been obtained for further detention upon a charge of an offence, not exceed 48


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hours, exclusive of the time necessary for the journey from the place of the arrest to the subordinate court having jurisdiction in the matter.


  1. Unless a person arrested without warrant is released by reason that no charge is to be brought against him, he shall as soon as possible, be brought before a subordinate court having jurisdiction upon a charge of an offence but if the magistrate of the court is temporarily absent, and there is no other magistrate available who has jurisdiction in the matter, that person may be detained in custody until the return of the first-mentioned magistrate or such other magistrate becoming available, whichever is earlier."


  1. ..................................". (My emphasis)


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What remained to be considered was whether the period of detention had been reasonable. Respondents submitted that it was reasonable. It then had to be considered whether the Respondents' explanation that the detainee was not sent for remand or released timely because he had to see a medical doctor was a good explanation. And would it be a good defence?


Respondents contend that since the detainee was already injured at the time of his arrest he was not send for remand by the magistrate within forty eight hours. The reason given is that magistrates often refuse to remand prisoners who are injured unless they are in possession of medical certificates. It is not like a magistrate will reject every detainee who is injured. It means that in the instant matter the detainee was never actually sent for remand timeously because he was sent to a medical doctor in Maseru on the 10th October 2003.


The medical doctor then delayed producing a medical certificate thus compounding the delay. The medical certificate was produced only on the 16th October 2003 when then in fact the detainee was sent in for remand and accordingly released on his own recognisance. I would judge that Respondents' officers would not have been prepared to unconditionally release detainee from custody and set him free before the 16th October 2003.


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In interpreting the said section 32(1) against the background of the facts of this matter one has to be mindful, and it is a key consideration that once the liberty of a subject was involved one should interpret the provision in favour of the liberty of the subject. Does it make sense that a magistrate will completely refuse remanding people who are injured? The answer is: Yes, if they are suffering from serious illness not any injury however serious. See S v Mbhahapa 1991(4) SA 668 (NMHC) where the Namibian Court interpreted a provision similar to the said section 32 of the CP&E against provisions of the Constitution of that country. Does it make sense in the present case that detention continued without having been formerly extended merely because medical certificates were awaited? I instantly should find that the Respondents' deponents story is a cock and a bull story.


Magistrates who are conscientious ought to release suspects and free them on their own recognisance or on bail conditions if only to make a further order for their medical examination and treatment. In my view attitude of condoning a continuing unlawful detention by magistrates or police officers without lawful process is out of question.


In any event no Court will regard to attitude of this magistrate and the Respondents as reasonable. At best my opinion would be affected otherwise if


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the Respondents deponents actually said they did present the detainee from remand and was rejected by the magistrate. Most unquestionably, police officers would be obliged by law to arrange a first appearance so that an accused can apply for bail. See S v Du Preez 1991(2) S.A.C.R. 372 (CK) 376 c-d 377. In my opinion the liberty of the subject is so paramount that:



"and even on the assumption that there are circumstances under which detention without trial can be justified then it is absolutely essential that the period of such detention be kept to an absolute minimum."


See remarks of Ackermann JA in Johny Wa Ka Maseko v Rex 1993-94 LLR 207 at 218. This needs no emphasis. And again similarly even in circumstances where preventive detention is exercisable by law it has been said that it is:


"......a necessary evil but essentially an evil. Therefore deprivation of personal liberty has has to be on strict terms of the constitution. Nothing less".


See State of Punjab v Jagdev Singh Talwandi, Air 1984, SC 444 extracted from Supreme Court on Criminal Law (India) Justice R P Sethi, 1950-2002 vol.3 at page 2441 (xxxvii)


This Court sincerely found no value, in the end, for extending the above debate for the following reasons. Even if the Respondents' story was to be believed and if one was very lenient or liberal, it would only have been a good


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basis for applying for extension of the period of detention. It would certainly not be justification for the further detention without due process. The opposite interpretation would render the provisions of the section 32 of the CP&E nugatory.


There is however no need for Courts to be wide or liberal in interpreting provision where the liberty of the subject is concerned, A strict interpretation is always called for. See S v Mngadi and Others 1984(1) 526(N). This was in connection with introducing amending legislation with too wide a scope thus negatively impinging on personal rights. And S v Ndlovu 1983(4) 507 (Z.S.C.) where it was pointed out that there was a duty on Courts to enforce very strictly the personal rights of accused and suspects, which remain to them, even where their common law rights have been substantially eroded by Statute. This was my attitude similarly in this case.


The rule is confirmed with costs.


T Monapathi Judge

3rd May 2004