C. of A (CIV) NO.22 of 2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
CECILIA SHABANGU APPELLANT
THE COMMISSIONER OF POLICE 1ST RESPONDENT
ATTORNEY GENERAL 2nd RESPONDENT
Held at Maseru
Coram: FRIEDMAN, JA
Appellant is the mother of Aubrey Bofihla Komane (hereinafter referred to as the deceased) who was shot and killed by members of the Royal Lesotho Mounted Police acting within the course and scope of their employment as servants of the Lesotho Government. She alleged in her particulars of claim that
during his lifetime the deceased was in a financial position to contribute to her support and in fact did so. By reason of the deceased's death she lost this support. In an action instituted in the High Court she claimed damages in an amount of M66 758,00.
Respondents filed a plea in which they admitted that the policemen had caused the deceased's death but denied that they had acted wrongfully or unlawfully. In support of this denial they pleaded as follows:
"(a) that the said Aubrey Bofihla Komane was being lawfully arrested on suspicion that he committed an offence.
That he resisted the arrest as aforesaid, pointing a firearm at the defendants who were effecting the arrest.
That in the process of resisting the aforesaid arrest he seriously and in a most dangerous manner threatened injury to the lives and bodies of the defendants who in reaction thereto, consequently caused the death of the
At the trial before Peete J. it was agreed that the lawfulness of the killing should be determined before the assessment of damages. It was also agreed that the onus was on respondents to prove that the killing was justifiable.
Respondents led evidence on the killing. When they closed their case appellant elected not to call any witnesses.
Peete J, having analysed the evidence which, in accordance with the agreement between the parties, was limited to the issue of liability, made the following order:
"Having considered all the circumstances of this case I am of the view that fault must be apportioned proportionally and I apportion it proportionally at 40% (plaintiff) and 60% (defendant). The plaintiff is therefore entitled to 20% of the amount claimed assuming the correctness of the actuary's assessment. This would then come to M13 351,60."
Appellant now appeals on the grounds that -
the court a quo was not entitled to make an award of damages in the light of the agreement referred to above; and
there was no room for an apportionment of damages which had not been pleaded.
Mr Makhethe, who appeared for respondents, submitted that, on the evidence, the court a quo should have found that the killing was justified on the ground of necessity. He accordingly submitted that the appeal should be dismissed with costs.
It is clear that Peete J was not entitled to make an award of damages in the light of the agreement between the parties which is recorded in the judgment. Moreover, there was no scope for the application of the Apportionment of Damages Act. Firstly, apportionment was not pleaded. Secondly, appellant was not in any way at fault in relation to the killing of her son; accordingly if there was any fault on the part of the policemen, respondents would be liable for the full
amount of whatever damages she has suffered.
The order made by the court a quo is a finding of liability on the part of the policemen. Respondents did not cross-appeal against that finding. It was therefore not open to Mr Makhethe to argue that, on the reasoning of the court a quo, the learned judge should have found that no liability had been established. Mr Makhethe was, in any event, not entitled to attack the reasoning of the judge a quo as he attempted to do: there can be an appeal only against the substantive order made by a court, not against the reasons for judgment. See Administrator. Cape and Another v Ntshwaqela and Others 1990(1) SA 705 (A) at 715 C-D.
It follows that as there was no cross-appeal against the finding of liability, that finding stands, subject only to the deletion of the reference to the apportionment.
The appeal is upheld with costs. The orders made by the court a quo are deleted and substituted with the following:
"Defendants are liable for the full amount of whatever damages plaintiff succeeds in establishing."
The matter is remitted to the court a quo for the purpose of determining the quantum of plaintiff's damages.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered at Maseru this day of October 2000.