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Incomplete Judgement (CIV/T/502/2004)
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
Delivered by the Honourable Mr. Justice T. E. Monapathi On the 4th day of September, 2007
In this matter counsel had decided that due to the simplicity of the issues there was no need for full compliance with Rule 37 (2) (agreed written statement) because the issue to be decided first was definite. Thus in the event of the Plaintiff succeeding on the issue of law,
as was agreed, then the parties could contest the issue of damages to be awarded.
In this action the Plaintiff claims compensation against the Defendants in the total sum of Two Hundred Thousand Maloti (M200,000) made up as follows:
M100,000.00 (One Hundred Thousand Maloti) for wrongful arrest and detention;
M50,000.00 (Fifty Thousand Maloti) for contumelia;
M50,000.00 (Fifty Thousand Maloti) for violation of his right to personal liberty.
The claim arose out of the Third Defendant's allegedly wrongful conducted of having arrested and detained Plaintiff for a period allegedly exceeding forty eight (48) hours. That the laws prescribe that such detention should
not exceed forty eight (48) hours. It becomes important as to how the period was to be calculated.
For their part Defendants deny any liability against the Plaintiff and state that the Plaintiff had been lawfully arrested on a Sunday afternoon on suspicion of theft of fuel belonging to Lesotho Government.
It was not disputed that Plaintiff was thereafter kept in police custody from Sunday to 1st December 2002 and was released on the 3rd December 2002. This period of detention, Defendants contend, falls squarely within forty eight (48) hours and not beyond. That this had therefore been reasonable fair and as contemplated by the law. Reference was made to section 32 (1) of the Criminal Procedure and Evidence Act 9/1981 (the CP&E) which provides that:
"no person arrested without a warrant (my underlining) shall be detained in custody for a longer period than in all circumstances of the case is reasonable and such period shall, subject to subsection (2), unless a warrant has been obtained for further detention upon a charge of an offence, not exceeding 48 hours exclusive...." (My emphasis).
So that the crisp question to be determined by this court is whether Plaintiffs detention exceeded the lawful limit. The parties differ in their approach to determining how "forty eight (48) hours" is to be calculated. It is specifically that while the same laws may be applicable the parting point is that what is calculated for is not "days" but "hours" in computation of time. Mr Thoahlane for Plaintiff did not contend that there was any guidance
in decided case that spoke exclusively of "hours" not "days" or "time".
So that a very terse expression of the problem is whether if an event happens on Sunday should this counting of "hours" start on Sunday on the one hand or on the next day which is not a "Sunday" or a "public holiday" on the other hand. The question may also find an answer even considering what the interpretation of law or other laws says about events that fall upon a Sunday or public holiday. The Crown submitted that the laws favour the conclusion that the Plaintiff shall have been detained for less than forty eight (48) hours. The Plaintiff submitted the opposite. It is that the counting should start on the day of arrest. If not it follows Plaintiffs case would be unsupportable.
Section 49 (1) of the Interpretation Act 19/1977
"in computing time for the purposes of an Act."
A period of day from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
Where any act or proceeding is directed or allowed to be done or taken on a certain day, then, if that day is a Sunday or public holiday, the act or proceeding shall be considered as done or taken in due time, if it is done or taken on the
next following day, not being a Sunday or public holiday; c) Where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, Sundays and public holidays shall not be reckoned in the computation of the time. (My emphasis).
As corollary section 49 (2) of the said Interpretation Act further provides that:
"if the time limited by an Act for any proceedings or the doing of anything under its provisions expires or falls upon a Sunday or public holiday, the time so limited shall be extended to, and such thing may be done on, the day next
following not being a Sunday or public holiday, (My emphasis).
I have accordingly placed my emphasis on the relevant parts of the Interpretation Act. Mr. Letsie submited further that the Crown's viewpoint was supported by statement of Professor G. E. Devenish in his work A Commentary on the South African Constitution at page 84, where the learned author writes:
"every person arrested for allegedly committing an offence has the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest or at the end of the first court day after the expiry of 48 hours, if the 48 hours expire outside ordinary
hours or on a day which is not an ordinary court day." (My emphasis).
Mr Letsie submitted that when stock is taken of above provisions and the undisputed facts of the case it will be seen that the Plaintiffs detention was less than forty eight (48) hours. This conclusion should be arrived at because of the following:
That the Interpretation Act (the Act) is specific that forty eight (48) hours period is suspended by law on Sundays, public holidays or on days which are not ordinary court days. See 49 (1) (a) "exclusive" 49 (1) (b)
"......as done.....on the next following day, not being a Sunday or public holiday, anytime not exceeding days .... Sundays and public holidays shall not be reckoned ..." and 49 (2) fall upon a Sunday the time shall be extended.... on the next day following
It cannot be clearer than that.
Following on above, I was accordingly urged that in addition to the accuracy of the above section as being individually decisive and definitive; one has to have due regard to the totality of the section and try to give it the meaning that the legislature intended. I agreed with respect.
I accordingly disagreed with Plaintiffs contention that the Interpretation Act is merely concerned with the period when the forty eight (48) hours expires. I have concluded that the Act also provides for a situation when the time expires on or falls on a Sunday. The Act otherwise clearly caters for and prescribes for a situation where an event has taken places or happened on a
Sunday (which is the beginning of an act) such as the present facts of the case.
Again, it is inarguable in my view, that according to the Act which a person is detained for a period of forty eight (48) hours this period may include (for computation purposes) the Sundays or public holidays if it falls on that day or expires thereon. In my opinion this is more so where the event takes more than six (6) days. I noted that the present scenario is not where the event falls on a Sunday or public holidays but where it begins thereon.
I agreed with the Crown that the computation of time in the present case makes the time of detention to be less than forty eight (48) hours. The detention was therefore not unlawful.
From the aforegoing it is clear that this claim should be dismissed with costs. I so ordered.
For Plaintiff: Adv. Thoahlane
For Defendants: Adv. Letsie