Theko v Commissioner of Police and Another (CIV/APN 149 of 90) [1990] LSCA 119 (23 July 1990)

CIV/APN/149/90 IN THE HIGH COURT OF LESOTHO In t he m a t t er between:- LEROTHOLI JACOTTET THEKO Applicant and COMMISSIONER OF POLICE ATTORNEY GENERAL 1st Respondent 2nd Respondent J U D G M E NT Delivered by the Honourable M r. Justice J. L. Kheola on t he 23rd day of July. 1990 This is an a p p l i c a t i on for habeas corpus m a de by t he applicant on behalf of his half-brother one Khoabane Letsie Theko w ho is the Principal Chief of Thaba-Bosiu. A rule nisi was issued on the 8th June, 1990 calling upon t he respondents to show cause on the 11th June, 1990 why t he respondents should not be ordered to produce the person of Khoabane Letsie Theko and there and then to show cause why he shall not be released forthwith from custody. There was a prayer for costs against the respondents jointly and severally t he one paying the other to be absolved. /2 - - It is common cause that on the 4th June, 1990 members of the Royal Lesotho Intelligence Service arrested Chief Khoabane Letsie Theko. The arrest was made after his office was searched for about one and half hours and a document written by His Majesty concerning the Southern African Deve- lopment Co-ordinating Conference was removed. On the following day it was announced over Radio Lesotho that Chief Khoabane L. Theko was in police custody and under interrogation. The applicant alleges that Chief Khoabane L. Theko has not committed any offence nor can he reasonably be involved in subversive activity. As a chief he is a peace officer who has undertaken to maintain law and order without showing any bias towards any faction in government that may be in existence. In his answering affidavit Robert Ralefume who is a member of Royal Lesotho Intelligence Service and the investi- gating officer in this case, deposes that he arrested and de- tained Chief Khoabane (detainee) upon credible information received by him which pointed out that during the period from the end of March, 1990 till the date of his arrest the detainee was on daily basis and at various places within the country consulting with various sections of the population and holding secret and underground meetings whereby he strongly incited members of the public to commit acts of violence and counselled defiance and disobedience to the Government of Lesotho. He did all these things because he was not satisfied that the King was out of the country and living in England. The detainee /3 - 3 - advocated hatred and contempt against the Government by referring to it as illegally constituted and used to go about under cover of night asking members of the public to ignore the rule of the Government of Lesotho. He consulted with the Principal Chiefs and urged them to ignore and isolate the Government and its administration and to work towards over- throwing it. The deponent says that he is unable to disclose any further information on this matter as this may be prejudicial to public safety and national security of Lesotho. He arrested and detained the detainee in terms of section 13 (1) of the Internal Security (General) Act 1984 (The A c t ). In his replying affidavit in paragraph 3 the applicant deposes that: "I respectfully submit that to deprive a citizen of his liberty, particularly one of the status of the detainee in this case, on the information of some faceless informer however ludicrous the information may be, is not to comply with the requirements of the Act. To go on and say one is not prepared to disclose any further information is simply to act arbitrarily. The only justifi- cation for the deponent doing what he alleges he has done is that he had a reasonable suspicion that the detainee is involved in subversion. He carries the onus of proving in court the reasona- bleness of the suspicion he alleges to entertain. To say that the information he received is credible is simply to beg the question. In any case, as more fully appears from the Supporting Affidavit of Winston Churchill Maqutu annexed hereunto, the d e p o n e n ts averments that the detainee is under interrogation just cannot be true." /4 - 4 - M r. Winston Churchill M a q u t u, an attorney of this Court has filed a supporting affidavit dated the 12th J u n e, 1990. He avers that on the 4th June, 1990 he found the detainee in custody in the offices of the Royal Lesotho Intelligence S e r v i c e. Colonel Thaha told him that the d e t a i- nee had been arrested in terms of the A c t. He asked for a document disclosing the grounds for the detention. Colonel Thaha said that the document was being prepared and that he would get it on the following day. On the 5th June he went to the offices of Colonel Thaha but was told that the document was not ready and that he should come on Thursday, the 7th June. M r. Maqutu did not actually go there on the 7th but on the 8th J u n e, 1990. Colonel Thaha told him that the interrogation had long been completed and that the need for the document setting out the grounds for the detention had fallen away. He promised that the detainee would be released that morning. Colonel Thaha had actually phoned the people he alleged w e re his seniors before he said the detainee would be released that m o r n i n g. On t he 9th June the detainee was still in detention and Colonel Thaha explained to M r. Maqutu that the authority who had to take the final decision regarding the release of the detainee had g o ne to the agricultural show on the outskirts of M a s e r u. On the 10th and on the 11th June M r. Maqutu met Colonel Thaha and Major M o k h e l e. The two officers confirmed that t he interrogation was completed on the 5th J u n e, 1990. /5 - 5 - On the 13th June which was t he extended return day of the rule nisi t he Court was informed that t he detainee had been released and the matter was postponed to t he 25th J u n e, 1990 for argument on costs o n l y. The application was filed in the office of t he Registrar on the 7th June, 1990. On that day M r. S e l l o, attorney for the applicant, was not aware that the interrogation was completed and that all Colonel Thaha was waiting for was a final word from his s u p e r i o r s. That information became available on the 8th June a f t er the application had been launched. M r. M o h a p i, counsel f or the respondents, submitted that the Court m u st ignore M r. Maqutu's affidavit because it is not a replying affidavit but raises new points at t he replying stage when t he respondents have no chance to reply to t h o se new a l l e g a t i o n s. On t he other hand M r. Sello expressed his surprise why M r. Mohapi did not ask t he Court to give him chance to file extra affidavits to challenge the new allegations that a re being m a d e. I do not wish to m a ke any decision on this point because it is not all important. What is important is whether the initial arrest and detention w e re lawful or n o t. If it is found that the arrest and detention w e re lawful, it will not m a ke any d i f f e r e n ce that the detainee was kept in custody for a few days after t he interrogation was completed. Colonel - 6 - Thaha has explained that during those few days he was still trying to contact his superiors who had t he final word on the release of t he d e t a i n e e. It m u st also be remembered that t he period of fourteen days prescribed by law had not expired. I do not mean that t he police a re entitled to keep a detainee even after they have finished interrogating him as long as a period of fourteen days has not expired. They must give sound reasons why they could not do s o. In his replying affidavit t he applicant accuses t he p o l i ce officer who arrested t he detainee of relying on information coming from some faceless informers. If by this t he applicant means that t he police officer had to disclose t he names of his informers then I do not agree with him. The police officer has disclosed t he nature of t he information he had before he arrested the d e t a i n e e. He has stated the facts in support of t he conclusion he reached. /7 - 7 - In t he case of Solicitor-General v. Simon Frank Mapetla, C.of A. (CIV) N o. 17 of 1984 (unreported) at p.2 W e n t z e l, J. A. said: "A suspicion is of course not to be equated with prima facie proof; but the suspicion must be reasonable, that is to say it m u st be such that a reasonable man in possession of the facts would agree that there was reasonable ground to suspect t h at t he person involved was concerned in subversive activity It is this requirement of reasona- bleness which is the safeguard given against capricious arrest." In t he instant c a se the police officer who decided to arrest and detain t he detainee has set out at great length t he things that the detainee was alleged to have been doing. In my view t h o se things amounted to subversion as defined in section 3 (1) of the Internal Security (General) A c t. No.24 of 1984. The legal position concerning the above point was summed up by Ackermann, J. A. in Johnny Wa Ka Maseko v. Attorney-General and another, C. of A. (CIV) No.27 of 1988 (unreported) at page 32-33 where he said:- "I have already alluded to t he unsatisfactory aspects of first respondent's affidavit in respect of his reasonable suspicion, and in particular t he bald statements that appellant "had been indulging in sub- versive activities as defined in t he Internal Security (General) A c t" and "was indulging in acts of espionage. It is insufficient merely to state a conclusion without /8 - - supplying some information on which such conclusion or suspicion is based. In the first place an eviden- tial onus is discharged by proof of f a c t s, not by statements of c o n c l u s i o n s. Secondly, by n ot proving facts in support of t he conclusion the Court is pre- cluded from assessing the reasonableness of the con- clusion of suspicion and accordingly precluded from finding that t he onus has been discharged. All that has been adduced in support of t he above last-cided conclusions is t he assertion that the conclusion is based on credible information and objective f a c t s. Once again this is little more than t he bald assertion of a conclusion which it is impossible for the Court to e v a l u a t e. It is no answer to say, as second respondent d o e s, that he is unable to disclose t he information or facts as they would be prejudicial to public interest and public safety. This merely p r e- cludes discharge of t he o n u s. It is not expected of a litigant in these circumstances to disclose witness statements or t he identity of witnesses or reveal in any detail security arrangements or t he precise acts which t he prisoner is suspected of performing. But t h e re is a vast m i d d le ground between revealing all and revealing n o t h i n g. Second respondent has not discharged t he onus of proving t he reasonableness of any suspicion in regard to these m a t t e r s ." (My u n d e r l i n i n g) In the instant case t he police officer went as far as to disclose the precise acts which the detainee was suspected of performing. I c o me to t he conclusion t h at his suspicion w as on reasonable grounds and that t he arrest and detention of the detainee were lawful. /9 - 9 - In the result the application is dismissed with c o s t s. J. L. KHEOLA JUDGE 23rd July, 1990. For the Applicant For the Respondents - - M r. Sello M r. M o h a p i,