The judge said when releasing the area MP from the Directorate of Intelligence and Security's (DIS) custody yesterday that the reluctance of the spy unit to follow the law on arrests and detention was cause for worry in a democratic state governed by the rule of law.
“I do not think it can be justified that even in the most heinous of crimes, as ritual killings are doubtlessly such, the wrongdoer should not be dealt with according to law and justice. If we allow for a certain type of justice for those suspected of ritual murder, different from justice as we understand it in terms of the rule of law, that in my judgement will be the very definition of anarchy,” he said.
Ketlogtetswe explained that the exercise of power by those charged with law enforcement, must be within the dictates of law to avoid any unjustly infringing the rights of those accused of having committed offences and pointed out that the case was about striking that balance, not about weighing side by side the rights of allegedly deceased child’s right to life as against the right of a person circumstanced as Matsheka to his liberty.
He emphasised that DIS might have been given the benefit to arrest Dr Matsheka without a warrant of arrest but then the law also obliged them to take him before a Magistrate if they still had good reason to continue holding him in their custody.
“The DIS has not complied with the law and no reasons have been given as to why Matsheka could not be taken to court for his further remand in custody if that was found to be a necessary step to take,” he said.
Justice Ketlogetswe said the DIS had resorted to, still without any reasonable explanation to break the law, wanting to be allowed to detain a person without a charge, without a warrant of detention, and without the authority of a court of competent juridisction.
He noted that it should not be allowed as it was clear that those arrested without a warrant cannot be detained for a period in excess of 48 hours without being taken before a court of law.
“In this case, Matsheka has been in custody since Tuesday without being taken to court or being charged with any offence yet he was arrested without a warrant of arrest,” he said.
The judge further said even counsel in the matter, Matsheka’s attorneys, Dick Bayford and Unoda Mack and state lawyer, Kgotso Botlhole all agreed that if the DIS had complied with the law and taken the legislator to court, the application for his release would have not been necessary, let alone instituted.
The judge said Mack even warned the DIS against illegally detaining his client but failed to listen, therefore, they would have to pay the costs for the application.
