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Sekobye v The Attorney General (Civil Appeal No. 01 of 205) [2006] BWCA 1 (27 January 2006)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CIVIL APPEAL NO. 001 OF 2005 HIGH COURT CIVIL CASE NO. 2356 OF 1995
In the matter between:
MOKGALO SEKOBYE  APPELLANT
and
THE ATTORNEY GENERAL     RESPONDENT
For the Appellant:       ADVOCATE S. KUNY
For the Respondent:      MR. M. CHAMME
CORAM: P.H. TEBBUTT J.P. S.A. MOORE J.A. M.M. RAMODIBEDI J.A.
JUDGMENT
TEBBUTT J.P.
The appellant appeals to this Court against the dismissal in the High Court by Lesetedi J. of an action brought there by him for damages for unlawful arrest and detention by members of the Botswana Police at Mochudi, acting within the course and scope of their employment as servants of the State.
The appellant was arrested and detained on a charge of murder on two occasions: the first was on 10 November 1994 but he was released on 12

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November 1994; the second was on 17 November 1994 but he was not released on this occasion until 11 February 1995.
Those facts are common cause, as is the fact that both arrests were made without a warrant of arrest. They were made in terms of the provisions of Section 28(2) (b) of the Criminal Procedure and Evidence Act (Cap 08:02) which lay down that a police officer is authorised to arrest without warrant any person who he has -
"reasonable grounds to suspect of having committed any of the offences specified in the Penal Code other than offences specified in such Code ... as are set out in Part II of the First Schedule of this Act ...."
Murder is an offence under Section 202 of the Penal Code and is not one of the offences set out in the First Schedule.
The arrests were made in connection with the brutal murder of a young girl named Segametsi Mogomotsi whose body was found on 6 November 1994 on some open ground in the village of Mochudi. The murder had taken place on the night of 5 to 6 November 1994. The murder was a particularly gruesome one. The girl had sustained fatal injuries to the chest and her genitals had been removed, her death thus bearing the hallmarks of a ritual killing.

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The Police arrested the appellant as a suspect in the murder on 10 November 1994 and took him into custody. They did so on the strength of a statement made on 6 November 1994 by a 15-year-old girl, Monnye Modimakwane. I shall hereafter refer to her simply as Monnye.
Monnye said that on the afternoon of 5 November 1994 she and the deceased set out together to sell oranges around the village to raise funds for a church trip to Francistown. Each one had her own half bag of oranges that she was selling. Somewhere in the village they parted, each going her own way. They had arranged to meet again later that afternoon to go to church together but the deceased did not keep the rendezvous and despite her going past the deceased's place, Monnye did not find her at home. The deceased never returned home and was not seen alive again.
The arrest of the appellant was effected by a detective in the Criminal Investigation Department Unit at Mochudi, Themba Bernard. He said that he had information that Monnye and the deceased had parted near the appellant's yard. He also received information that on the night of 5 November 1994 someone had heard a child crying in the appellant's yard. Appellant's vehicle had also allegedly been seen there. These facts created in him the suspicion upon which he arrested the appellant.

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Further investigations, however, persuaded him that the appellant was not the murderer and he was released on 12 November 1994.
The learned trial judge pointed out that Monnye's statement of 6 November 1994 did not indicate that she had parted with the deceased near the appellant's yard nor did it implicate appellant in any way. Indeed, at that stage the police had evidence that the deceased was last seen entering the yard of another suspect, one Kgang. The story of someone hearing a child crying was vague. The learned judge found it had not been established that there were reasonable grounds for the police to arrest the appellant on 10 November 1994 as a suspect in the murder. He accordingly held that the appellant's arrest on 10 November and detention until 12 November 1994 was unlawful, entitling appellant to damages. There is no cross-appeal by the respondent against that finding and no more need be said about it.
I turn then to the arrest of the appellant on 17 November 1994 and his subsequent detention until 11 February 1995. The learned judge held these not to have been unlawful.
Before considering the correctness or otherwise of that finding it is necessary to refer briefly to the legal position in a claim such as the present. It is now well-established that as an arrest is prima facie

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considered odious, being an interference with the liberty of an individual, the onus, where an arrest and detention of a plaintiff is admitted, rests on the defendant - in casu the Police - to justify such arrest and detention. (See inter alia Mosaninda v. Attorney- General 1994 BLR 411; Aphiri v. Attorney-General 2000[1] BLR 65 (C.A.) at 69 D-E). In order to acquit the onus it must be proved on a balance of probabilities that reasonable grounds existed at the time of the arrest for suspecting that the person arrested had been involved in the commission of the offence in question. The test is an objective one (see e.g. Duncan v. Minister of Law and Order 1986[2] S.A. 805 (A.D.); Attorney-General v. Blumears 1991[1] ZLR 1189 (S) at 122 A-E).
In order to discharge the onus resting on it, the respondent, in relation to the arrest of the appellant on 17 November 1994 and his subsequent detention called one witness viz. Senior Superintendent Shingila Majane of the Mochudi Police. The appellant called no witnesses. The appeal must accordingly be decided on Majane's evidence, standing alone.
Majane said he was on leave until 14 November 1994. On his return to work on that day he was told by Bernard of the murder. Bernard briefed him as to what had occurred in the investigation up to then. The murder had aroused the anger of the residents of Mochudi and there was a meeting of them arranged at the Kgotla for that day. Their anger was

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directed at the police for not having brought the perpetrators of the crime to book. The school children were particularly incensed at the killing of one of their number. It is common cause that later that month unrest and rioting took place not only in Mochudi but extended as far as Gaborone. During the unrest, suspicion had centred on among others, the appellant - no doubt because of his arrest - and certain of his properties were attacked and burnt down. Because of the mood of the community Majane said he felt it was necessary for him to attend the meeting to attempt to calm the atmosphere. He also decided to take over the investigations.
One of the vociferous children at the meeting was Monnye and after the meeting he interviewed her. She gave him certain information as a result of which he instructed one of the members of his investigating team to take a statement from her. That statement was taken down in handwriting and later typed from the handwritten version. It is dated 17 November 1994.
It is not necessary to set out the statement verbatim but merely to narrate its salient aspects. In it Monnye repeated her story of how she and the deceased had, on 5 November 1994, sold oranges to raise funds but she gave a new version of how she and the deceased had parted. She also stated that during the afternoon of 5 November 1994 she and the

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deceased had seen the appellant who had waved to them. They ignored him because of the fact that the deceased had previously told her of incidents in which the appellant had tried to force his attentions on her, which had made her, the deceased, fearful of him. The appellant, the deceased said, had on two occasions tried to grab her but she had either eluded or freed herself from his grasp and had run away. The appellant and a person with him had tried to chase and catch her but had failed. Monnye gave the names of two girls whom she said could also testify to the fact that the deceased had told them of these incidents involving the appellant.
Her story of how she and the deceased had parted on that afternoon is, in summary, the following:
She said that during their sales endeavours they came across a boy, Carter Kgetse, who bought two oranges from the deceased but did not pay for them. He asked Monnye and the deceased to go with him to his elder sister, Nnana Kgetse, to get some money to pay for the oranges. (It must be mentioned at this juncture that Nnana was said to be the girl friend of the appellant.) They went with him, said Monnye, until they arrived at the appellant's brick yard where they found Nnana and a number of other people. Nnana gave Carter P5-00 so as to be able to pay the deceased for the oranges.

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While they were waiting for Carter, someone on the nearby road wanted to buy oranges and Monnye went to sell some to her. She also went into another yard in the vicinity to sell her oranges. During all this time the deceased was still at the appellant's yard, waiting for her money. Monnye said she was away for about an hour and when she went back to the yard she found that Nnana and the deceased were not there. Carter told her that the deceased had gone home. This was around 5 p.m. She went straight to the deceased's home but the deceased was not there and the deceased's mother told her that the deceased had not returned home. She and another girl then went to look for her at the church and at Monnye's home but could not find her. Monnye then gave up and went home to sleep. On the following morning the deceased was found dead on the open field.
In the light of this statement, said Majane, he believed he had reasonable grounds to suspect the appellant of the murder. He arrested him as well as Nnana and Carter. Majane said that the Police looked for and found the girls whom Monnye said could confirm her story of what the deceased had told her about the appellant's trying to force his attentions on her. They took statements from them in which Monnye's story was verified. Those statements are dated 19 and 20 November 1994 i.e. after the appellant's arrest.

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The next chapter in the saga involved the father of the deceased. The police received information that he was implicated in his daughter's murder. He was interviewed and made a statement which the police considered to be a confession. As a result, he was taken before a judicial officer where the latter recorded a statement from him. This was on 24 November 1994. That statement is a remarkable and horrifying document. In it the father, Molefhe Matswi, told how the appellant had asked him to make his daughter available to the appellant in order to have her ritually murdered. This barbarous rite involved her having her sexual organs cut from her body while she was still alive, and then her being killed thereafter. The appellant's purpose in this ritual killings was to ensure the prosperity of a business venture he was about to embark upon. Matswi said he at first demurred but then, incredibly, agreed to sell the deceased to the appellant when the latter offered him PI 200-00 for the girl. Matswi's statement then went on to describe in graphic detail how the deceased was lured from her home and taken in a van belonging to one Monau, to the appellant's yard. The appellant and one Aphiri were holding her, while they were in the van. Matswi then described how she was murdered. It is not necessary to set Matswi's statement out in full or say more about it, than to record that it implicated completely the appellant in the murder of the deceased.

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The statements from the two girls and that of Matswi, said Majane, confirmed his suspicions. Majane said he also had a statement from one Moremi Molwane who had a shop near the appellant's brickyard. Molwane said he saw a white van entering the yard at about 9 p.m. on 5 November 1994. He recognised the appellant and Aphiri as two of the men who emerged in the yard from the van.
Following the arrest of the appellant, Nnana and Carter on 17 November 1994, they were taken before the Magistrate at Mochudi on 18 November 1994 and remanded in custody until 2 December 1994. They were then again remanded in custody to 16 December 1994 and on that date to 11 February 1994, when they were released.
In the meantime, both Monau and Aphiri were arrested on 29 November 1994 but released 22 hours later on 30 November 1994.
Aphiri, like the present appellant, also brought an action against the State for wrongful arrest and detention by the Police. That action was dismissed by the High Court (Aboagye J.) and an appeal to this Court against such dismissal was unsuccessful (see Aphiri v. Attorney-General 2000[1] BLR 65 (C.A.)). At p 70 of the report, Lord Weir, who gave the judgment of this Court, referred to the fact of Aphir's release as occurring "as soon as Matswi had withdrawn his statement".

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What in fact happened was this: After getting the statement made by Matswi to the judicial officer, the police pursued their investigations. In the course of these they began to doubt Matswi's mental well-being and sent him for mental examination. It is common cause that on 1 December 1994 Matswi withdrew his statement, stating that all that he had said in it was not correct.
Majane's evidence was that he did not know of this because from about 27 November 1994 he was no longer involved in the investigation on a day-to-day basis although, as the commander of the investigating team, the men doing the work reported to him.
Majane also said that he did not know of another highly important aspect of the investigation. It is this. In the docket of the investigation there were two statements by Monnye, both dated 17 November 1994. The one is that to which I have referred above. The other is in almost identically similar terms but with one significant difference. Attached to it, at the foot thereof, is what is headed "additional statement". That "additional statement" starts with the following words:
"I have previously told the police a lie in this statement."

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Monnye then goes on to say that "the truth is" that when Carter did not pay for the oranges he bought from the deceased he invited her to go home with him, promising to pay her there. She then said:
"I parted from my friend Segametsi proceeding to eastern direction with Carta (sic) and Segametsi. I never saw Segametsi again ...."
It will immediately be appreciated that this differs from her story about her parting with the deceased at the appellant's brickyard and finding that the deceased had disappeared from there apparently in the company of Nnana.
When he was questioned about this statement in his cross-examination Majane said that the first knowledge he had of the "additional statement" was when counsel for the appellant put the contents of it to him in cross-examination. He was surprised by it. He was also surprised that the police officer who had recorded it had not brought it to his notice. He had certainly not seen it before he arrested the appellant on 17 November 1994.
I turn then to deal with that arrest.

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It was the evidence of Majane that he ordered the arrest and detention of the appellant solely on the statement of Monnye of 17 November 1994.
The trial judge directed a specific question to him as to that. The following appears from the record. The questioner is the learned judge.
"Q: Just in summary when you ordered the arrest and detention of the plaintiff (appellant) what were you basing your decision on?
A: I was quite convinced from what Monnye had said to me and I was basing on that statement totally because she had given a very long statement which really convinced me."
Mr. Chamme sought to argue that Majane's decision was not based solely on that statement. Quite apart from Majane's response to the learned trial judge - unprompted by any suggestions in this regard by the judge who left Majane's answer open entirely to him - that he had based his decision "totally" on that statement, Majane in answer to appellant's counsel said categorically that all the evidence corroborative of Monnye had been obtained after the appellant's arrest.
Mr. Kuny for the appellant contended that Majane must have had the additional statement before him when he decided to arrest the appellant, dated as it is also 17 November 1994. There can be no substance in this.

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It cannot be ascertained when the additional statement was made. It is highly improbable that it was made at the same time as the main statement for the police officer recording the latter would surely not have recorded it knowing that an important part of it was false. It is also unlikely in the extreme that Majane, a senior and experienced officer, would have based his arrest on Monnye's statement knowing that a vital part of it was false.
Has the respondent discharged the onus of establishing that Majane had reasonable grounds to suspect the appellant of having committed the murder of the deceased? The learned trial judge found that it had. He said that -
"it appears to me that the detailed statement of Monnye which was made after an interview with Majane, would have given a reasonable person grounds to suspect the plaintiff of having had a hand in the disappearance and killing of the deceased."
A useful guide as to what would amount to suspicion as contemplated in Section 28(2) (b) is contained in the judgment of Lord Weir in Aphiri v. Attorney-General, supra at p 68 E-F where he said:
"Suspicion, in my view, must be something more than idle speculation but is far short of a firm conviction that the person has

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committed the offence. 'Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; \ suspect but I cannot prove'. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end.' Shabaan Bin Hussein v Chong Fook Kam [1969] 3 All E.R. 1626 per Lord Devlin at pi630 C-D. But mere suspicion is not enough. Suspicion founded on instinct or guesswork will not do. The suspicion which forms itself in the mind of the officer must be based on grounds which are capable of explanation and can be said to be reasonable."
There are two elements in Monnye's statement on which Majane's suspicion could have been founded viz. (1) that, on previous occasions the appellant had tried to seize the deceased and (ii) the deceased was last seen alive at the appellant's yard and had apparently gone off from there with the appellant's girl friend, Nnana.
Had these been the only factors I would have been inclined to agree with the learned trial judge that applying an objective test, as one must, to those facts it would not have been unreasonable for Majane to have harboured the suspicion he did. But would that have warranted his arrest of the appellant? His decision to do so involves the exercise of an executive discretion. In the exercise thereof a police officer must obviously bear two factors in mind (a) the presumption of innocence of a suspect and (b) the fact that an arrest involves a gross deprivation of the

16
arrestee's liberty. I agree with the learned trial judge where he said in his judgment:
"In exercising the executive discretion of whether or not to arrest a person without a warrant, the police officer must act with caution and exercise his mind having regard to the importance of balancing the need to detect crime and arrest perpetrator(s) of such crime with the need not to lightly encroach on the individual's liberty. For as was pointed out by White J in MANASE v MINISTER OF SAFETY AND SECURITY AND ANOTHER, 2003(1) SA 567 AT 577,
"An individual's personal liberty is his most cherished right and anyone who has the right to curtail that right must do so only with the greatest circumspection'."
Mr. Kuny submitted that Majane had not properly exercised his discretion in that he had overlooked two important matters in doing so. The first was that the appellant's herdboy had said that the appellant had spent the night at his cattle post. Bernard had briefed Majane when the latter came into the investigation. He must surely have told him that this evidence was one of the factors that had prompted the police to release the appellant after his first arrest on 10 November 1994. Majane said, however, that the appellant's cattle post was a mere 15 to 20 km from Mochudi. The appellant could have gone from the cattle post to Mochudi and back during the night.

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The second matter is Monnye's statement of 6 November 1994. In that account, her version as to how they had parted viz. that they had gone their separate ways after selling their oranges before agreeing to meet later to go to church together, differed from the detailed description she gave to Majane about leaving the deceased at the appellant's yard. That, so Mr. Kuny argued, should have made Majane wary of the veracity of the statement she made to him.
The statement of 6 November 1994 was in the police docket. Majane said he did not see it. He said he never had the police docket, nor had he read its contents. When he came back from leave the docket was not at Mochudi but was with separate investigating team in Gaborone that had also been brought into the case. He said he had been told that there was nothing in the docket that could have assisted him so he did not call for it to ascertain its contents.
I find this surprising. One would surely have expected an experienced senior officer coming into a case, particularly one as important as this, not only to have wanted to be fully briefed but also to have studied all the documentary matter in order to acquaint himself with what had gone on up to then. That he did not do so was, I feel, a serious omission on his part. But if one may criticise Majane for this lapse on his part, one must, I think, believe him when he says that he did not peruse the

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docket or see Monnye's first statement. I cannot make a finding, on the record before me, that he was lying in this regard. Much as one may condemn his conduct, one is obliged to fall back on his evidence that he based his grounds for suspicion on Monnye's statement of 17 November 1994. And on that, as I have said, I cannot find that the learned judge was wrong in finding that Majane had a reasonable suspicion of the appellant's implication in the murder. It follows that I do not find that the appellant's arrest on 17 November 1994 was unlawful.
The detention of the appellant from 17 November 1994 to 11 February 1995 stands on an entirely different footing.
After the appellant - and with him Carter and Nnana - had been remanded by a Magistrate in custody on 18 November 1994 to 2 December 1994 the police investigations proceeded apace. As I have stated above it was during this time that the statements from the two girls Monnye had mentioned were taken but, more importantly, the statement from the deceased's father, Matswi, was recorded on 24 November 1994, by the judicial officer before whom he was taken. It was the latter that also prompted the arrest of Monau and Aphiri. Other police investigations were also being conducted. Some of the details of these are recorded in the Investigation Diary, which was produced as part of the evidence at the trial. In this diary the day-to-day activities of

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the policemen involved in the case are noted. Other investigations not so noted were no doubt also going on. The police were obviously not idly sitting around.
Even if I could, it would not be necessary for me to set out what those investigations were. What is, however, abundantly clear is that before the end of November 1994 the police were of the view that their suspicions as to the appellant's complicity in the murder were unfounded and that his guilt in connection with it could not be established.
A number of factors obviously contributed to this. The most important of these concerned the deceased's father. As I have set out earlier, the police began to have grave doubts about his mental well-being, resulting in his being sent for mental examination. They must also have had doubts about the truth of his confession statement. In it he directly implicated Monau. This appears from a perusal of this Court's judgment in the Aphiri case, supra. Monau apparently told the police he had an alibi. He said that he was elsewhere on the fatal night and was in the presence of a Ms. Tumedi, a teacher at the University of Botswana. The police checked with Ms. Tumedi, who confirmed Monau's alibi. Matswi was accordingly clearly not being truthful. The police also by this time must have had the additional statement of Monnye in their possession in

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which she confessed to lying about having last seen the deceased at the appellant's yard from which she had apparently left with the appellant's girlfriend, Nnana. The reliability of Monnye was obviously highly suspect. Then the witness Moremi Molwane, who said he had seen the appellant and Aphiri on the night in question emerging from a white van in his, the appellant's, yard, also did a volte face and said that although he had seen a white van with some occupants in it, he could not identify any of them. Although two men had emerged from the vehicle, he said it was dark at the time and it was not possible to identify them nor could he "positively name actually who they were".
The coup de grace, however, came on 1 December 1994 when Matswi retracted his statement. This left the police with no evidence on which the appellant's guilt could reliably be established.
It is at this juncture necessary, I feel, to make it clear who it was that the appellant brought his action against. It was the Police Force, the summons stating in clear terms that the Attorney-General was cited as the defendant in his capacity as the representative of the Government of Botswana and "of the Commissioner of the Botswana Police Force". The action was not brought against Majane or any other individual member of the Police Force but, and I emphasise this, against the Police Force as a whole.

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By 2 December 1994 when the appellant was due to appear before the Magistrate again - and when on that day he was further remanded to 16 December 1994 - the police considered that he should no longer be detained but should be liberated.
There is in the Investigation Diary an entry on 2 December 1994 of the greatest significance. The author of it is not clear from the signature at its foot but it is obviously one emanating from one of the police officers and it is addressed to his commanding officer. In view of its importance I cite it verbatim. It reads as follows:
OC
Sir, I submit this docket to your office for perusal and directions.
In this case a 14 year old girl Segametsi Mogomotsi was murdered and parts of her body removed and taken away by unknown people during the night of 5/11/64.
During investigations the following people were arrested
 (1)    
Mokgalo Sekobye
 (2)     Nnana Kgetsi
(3)      Carter Kgetsi and interrogated and
subsequently remanded in custody based on
the statement of Monnye Modimakwane the
last person who was in company of the
deceased before she was murdered on night of
5/11/94.         Their remand was further
strengthened by a confession statement which

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was made by the dead child's father who made a confession statement implicating the three aforementioned suspects.
To my surprise both the father of the dead child and Monnye Modimakwane whose statements implicated the three suspects, turned against their statements to say we're lying to the police. Apart from the dead child's father's confession statement and the statement of Monnye Modimakwane we cannot keep on remanding the three suspects. I doubt the mentality of the dead child's father.
I suggest assistance be sought from the Attorney General's Chamber for the liberation of the four (sic) suspects. They have been remanded in custody until the 16th December 1994.
Majane said this note was not brought to his attention. He was, he said not the "O.C." to whom it was directed. That could have been the O.C. of the Gaborone investigating team. He conceded though, that the arrest and detention of the appellant was his responsibility.
Majane himself was, however, by this time of the view that the appellant should be liberated. The following appears from his cross-examination:
"Q: When did you decide that the plaintiff (appellant) should be released?
A: I cannot remember the date but I think it was towards the end of November or beginning of December after examining

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the mentality statement of the deceased's father.
Q; So on that date you formed an opinion that the plaintiff should be released?
A: That is correct."
Whether Majane was aware of the diary entry or not, matters not at all. It was the police who considered that the appellant should no longer be detained. By this time Monau and Aphiri had been released. It was the police who caused their release.
So when the appellant was taken before the Magistrate for further remand on 2 December 1994 the police were of the view that he should be released. The prosecutor who applied for his remand was one Rapoo. He was a police officer and, more importantly, he was a member of the investigating team. He accordingly knew or should have known of the view of the police as to the continued detention of the appellant. Yet he asked the Magistrate for appellant's further detention and to make matters worse in my view, did so again on 16 December 1994.
While there may have been justification in the detention of the appellant from 17 November 1994 to 2 December 1994 while the investigations were proceeding, there was no justification for his continued detention after that.

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In dismissing the appellant's claim the learned trial judge applied, with approval, the judgment of Aboagye J. in the High Court case of Thokwane v. Attorney-General 1988 BLR 221 (H.C.). In an action for wrongful arrest, malicious prosecution and "false and malicious detention and imprisonment", the plaintiff had also been remanded in custody by a magistrate. Citing as his authorities Clerk and Linsell on Torts (16th Edn) at pl045, para 1909; Sewell v. National Telephone Co. Ltd [1907] 1 K.B. 557 and Austin v. Dowling [1870] L.R. 5 C.P. 534, Aboagye J. said the following:
"On the authorities, therefore, once the further detention of the plaintiff in prison was upon the intervention of the magistrate who must have exercised a judicial discretion in the matter the police cannot be held liable for the detention."
The remands of the appellant, so the trial Court found "fell within the ambit of the legal situation contemplated in the above-cited dictum of Aboagye J." and he accordingly non-suited the appellant.
Mr. Chamme for the respondent in this Court also relied on the judgment in the Thokwane case for his contention that the learned trial judge was correct in dismissing the appellant's claim for wrongful detention. He

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further drew the attention of the Court to Section 11 of the Criminal Procedure and Evidence Act (Cap 08:02) which provides that -
"The Attorney-General may order the liberation of any person committed to prison for further examination ...."
Mr. Chamme submitted on the strength of this section that once the appellant had been remanded in custody by the Magistrate, only the Attorney-General could order his liberation, which was why the case was referred to the Attorney-General who ordered the release of the appellant, as occurred on 11 February 1995.
Now, in the first place I am not sure if Thokwane*s case is good law in Botswana, the authorities dealing as they do with procedure and the law in England at that time, but it is not necessary for me to come to any decision as to that. In any event, it was not argued before this Court.
Aboagye J.'s dictum would however appear inapplicable in the present case. He refers to the fact that in remanding an accused for further detention, the Magistrate has exercised his judicial discretion in the matter. In casu the Magistrate appears to have ordered the remand on the application of the prosecutor and to have done little more than to

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rubber stamp that application. The Magistrate merely acceded to the request of the prosecutor for the appellant's further detention.
But it was, in my view, not appropriate for the prosecutor to have applied for the further detention of the appellant. As a member of the investigating team he must have been aware of the difficulties besetting the further detention of the appellant and the doubts of the other members of the team in regard to this.
It was pointed out to the Court that the note in the diary is dated 2 December 1994 which was also the date of the appellant's further remand and that the prosecutor may only have become aware of his colleagues' opinions after the remand had been granted. Even if that were so, there was nothing to prevent the prosecutor causing the appellant to be returned from custody to court the next day and to request his liberation. And if it might be suggested that only the Attorney-General could order his liberation in terms of Section 11 cited above, it would have required little more than one telephone call to the Attorney-General's Chambers to obtain the required order.
In my view the continued detention of the appellant on 2 December 1994 and thereafter again on 16 December 1994 until 11 February 1995 was wrongful and unlawful entitling the appellant to damages and I so find.

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The matter will accordingly have to go back to the High Court for the assessment of such damages as the appellant may prove he has suffered. There remains only the question of costs. Although I have found that the appellant has not succeeded in his appeal on the issue of his arrest on 17 November 1994 and has only succeeded on the issue of his wrongful detention from 2 December 1994 to 11 February 1995, he has substantively succeeded in his appeal. Moreover, in order to achieve that success he was obliged to bring his appeal to this Court. In my view, therefore, he is entitled to the costs of the appeal. As to the costs in the Court a quo, the Court found that having partially succeeded on the issue of liability in respect of his wrongful arrest and detention from 10 to 12 November 1994, the fairest order was that each party should bear its own costs. Although this Court has found that the Court a quo should have held in the appellant's favour on the issue of his detention from 2 December 1994 to 11 February 1995, it has not disturbed the Court's finding that the appellant had not succeeded on the issue of his arrest on 17 November 1994. Again the fairest order would, I feel, have been that each party should pay its own costs of the trial. I can see no reason, therefore, to vary the order as to costs of the Court a quo.
In the result the following order is made.

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1.       The appeal succeeds to this extent that the order of
the Court a quo dismissing the appellant's claim for
wrongful detention is set aside and substituted with
the following order -
the appellant's claim for wrongful detention from 2 December 1994 to 11 February succeeds.
2.     
The case is referred back to the High Court to assess such damages as the appellant may prove to have suffered as a result of his aforesaid wrongful detention.
 3.     
(a) The appellant is awarded the costs of appeal;
(b) The order as to costs of the Court a quo is confirmed.
DELIVERED IN OPEN COURT AT LOBATSE THIS 27TH DAY OF JANUARY, 2006.
P.H. TEBBUTT JUDGE PRESIDENT

29

I agree 
OORE JUDGE OF APPEAL

S.A. M

I agree
M.M. RAMODTBEDI JUDGE OF APPEAL

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