Commander Lesotho Defence Force and Others v Mareka (C of A (CIV) 27 of 15) [2015] LSCA 23 (7 August 2015)

Commander Lesotho Defence Force and Others v Mareka (C of A (CIV) 27 of 15) [2015] LSCA 23 (7 August 2015)

The High Court had jurisdiction to determine the lawfulness of Brigadier Mareka's detention under the Constitution and habeas corpus principles. The requirements for close arrest under Regulation 10 were not met, and the Defence Force failed to justify the necessity for close arrest. Therefore, the order for open arrest was lawful and proper.

Citation
[2015] LSCA 23
Parties
Appellant: Commander Lesotho Defence Force; Appellant: Director of Military Intelligence; Appellant: Minister of Defence; Appellant: Minister of Justice and Law and Constitutional Affairs; Appellant: Attorney General; Respondent: Mathabo Mareka
Court
Court of Appeal
Jurisdiction
Lesotho
Judgment Date
7 August 2015
Case Number
C of A (CIV) 27 of 15
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
appeal dismissed
Legal Topics
Habeas Corpus, Military Detention, Judicial Review, Separation of Powers, Personal Liberty, Unlawful Detention
Source Language
English
Constitutional Law Administrative Law Military Law Human Rights Habeas Corpus Military Detention Judicial Review Separation of Powers +2 more

Case Brief

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Parties

Commander Lesotho Defence Force

Appellant

Director of Military Intelligence

Appellant

Minister of Defence

Appellant

Minister of Justice and Law and Constitutional Affairs

Appellant

Attorney General

Appellant

Mathabo Mareka

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the High Court had jurisdiction to order open arrest for Brigadier Mareka
  2. 2 Whether the High Court could interfere with the Army Command's discretion under military regulations
  3. 3 Who bears the onus to justify detention in habeas corpus proceedings

Ratio Decidendi

The High Court had jurisdiction to determine the lawfulness of Brigadier Mareka's detention under the Constitution and habeas corpus principles. The requirements for close arrest under Regulation 10 were not met, and the Defence Force failed to justify the necessity for close arrest. Therefore, the order for open arrest was lawful and proper.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed with costs.
  • The appellants shall pay the costs of one attorney and two advocates, to be taxed in default of agreement.