Chabeli v Commissioner of Police and Another (CIV/T/150/97)

Case No: 
CIV/T/150/97
Media Neutral Citation: 
[2004] LSHC 125
Judgment Date: 
19 October, 2004

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CIV/T/150/97

IN THE HIGH COURT OF LESOTHO


In the matter between :-


MOSA CHABELI PLAINTIFF

And

COMMISSIONER OF POLICE 1st DEFENDANT

ATTORNEY GENERAL 2nd DEFENDANT


JUDGMENT


Delivered by the Honourable Ms Acting Justice N. Majara on the 19th October 2004


Applicant instituted proceedings against the above mentioned respondents whereby she claimed:


  1. damages in the sum of M210,545.02;

  2. interest at 18% a tempora morae; (c) Costs of suit;

  3. Further and/or alternative relief.


The matter was initially instituted by one 'Mabotle Chabeli who has since passed on. Applicant is the daughter of the late 'Mabotle and due to the fact that her mother passed away before the matter could be heard she applied for and was granted leave to substitute her.


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It is common cause that on the 31st October 1995, applicant's father, Major Karabo Chabeli was fatally shot by some police officers during a shoot-out at the Maseru Central Charge Office. At the time of his death the Major was 50 years old. It is also common cause that at the time of his shooting the major was earning M4,486 00 less M1093 00 (PAYE) leaving M3,393 00 per month which money he used towards maintaining and supporting his family.


Applicant's case is that as a result of the wrongful and unlawful fatal shooting of her father, she has suffered damages in the amount as stated in her prayers.


The case of the respondents is that though they are not disputing that the deceased was killed by some police officers during the said shoot-out, the police officers in questions were not acting within the scope of their duty in their actions and as such respondents are not liable for damages.


Mr Fosa, counsel for applicant argued that if is trite law that a master is liable for any wrongful acts committed by his servant which he has authorized and ratified. Furthermore, a master is also liable for any wrongful act committed bv his servant in the course of carrying out his instructions or whilst engaged in the activities reasonably incidental thereto. He argued that the liability of a master extends event to the acts which the master

has not authorized or expressly instructed a servant to do including those acts which the master has specifically prohibited the servant from doing. I totally agree with this submission.


Mr Fosa contended that in casu, it would seem that at all material times the police officers involved in the killing of the deceased were employees of the Lesotho Government under the 1st respondent and that they did the acts complained of during the course of their employment. His submission was that even if the 1st respondent had not authorized the police officers to shoot the deceased or forbidden them to do so, he would still be held liable so long as the police officers who shot the deceased were at or about the business of the employer which was that of maintaining law and order.


Mr Fosa referred the court to the case of Estate Van der Byl v Swanepoel 1927 AD 141 and the judgment of Greenberg J.A. in Fieldman Pty Ltd v Mall 1945 AD 733 as authorities on the contention that a master will not be absolved from liability if under the circumstances of the case, a servant had never entirely abandoned his master's work and had throughout remained at the place of employment and that deviation by the servant would not amount to a complete abandonment of the master's business as to exempt the master from liability. His submission was that in casu, the police officers in question had not resigned from their employment nor were they under suspension.


In reaction to these submissions, Mr Putsoane, counsel for the respondents argued that although it is not disputed that the police officers who killed the deceased were under 1st respondent, when they shot and killed the deceased and others, they were not acting within the scope of their employment which is that of maintaining law and order. He argued that it was not the duty of the said police officers to kill and that it couldn't even be properly argued that the killing resulted from the execution of their duties.


In order to put the case in context a brief background of the facts, some of which the court gleaned from the Court of Appeal Judgment in Phakiso Molise v Rex No3/2001 is that, sometime in 1994 a police strike had taken place. This gave birth to inter alia, a grievance committee styled "CODESA" a unit through which disgruntled members of the police force had entered into negotiations with senior management of the then Royal Lesotho Mounted Police (R.L.M.P.). Amongst others. CODESA members were mandated to deal with extra police duties as a result of which they were heavily armed. They stood out from the conventional police personnel by their arms and paramilitary uniform.


In 1995, a teachers' strike took place resulting in a major conflict between members of CODESA and some of the senior officers with regard to how the strike was handled. A series of events took place culminating in CODESA deciding to embark on certain actions including attempting to arrest some of the senior officers. On the date in question, CODESA embarked upon this mission but met with resistance from the other side and this all culminated in the fatal shooting of some of the senior officers, the father of the applicant in casu being one of them.


It is against this background that the respondents are denying liability in the killing of the deceased by some of the police officers. Mr Putsoane's contention was that the above mentioned series of acts by CODESA were clearly unlawful activities whereby he also referred the court to the Molise judgment wherein at paragraph 29 of page 24 therein the court stated;


"I have already pointed out that, viewed holistically, there can be no doubt that after the negotiations failed on the 30th October the leadership of CODESA decided to embark upon a series of planned actions calculated to bring about the apprehension and detention of Col Penane and PW1. This was clearly an unlawful series of activities." (my underlining)


It was Mr Putsoane's further submission that the officers in question were even criminally charged for the unlawful acts.


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He disputed Mr Fosa's contention that the fact that the said police officers were in uniform and carrying guns issued to them per se meant that they were acting within the scope of their duties. He argued further that the principle within the case of Mhlongo and Another NO v Minister of Police 1978 (2) SA to which the court was also referred, was that a servant must have been about the affairs of the master in committing the alleged acts. He argued that the fact that the junior officers did not obey their seniors meant that the seniors were not in control hence why even some of the seniors were shot and killed.


In his reply Mr Fosa argued that the junior officers were effecting an arrest and were as such about the duties of the crown. He stated that the legality or otherwise of such arrest is immaterial. He said this was more especially the case account being taken of the fact that CODESA was not an illegal entity but a legitimate unit with which

were charged for the unlawful act, if a delict arose out of that act, then lst respondent should be held liable.


It is against this backdrop that this court has to determine the following issues:


  1. Whether the police officers who shot and killed the deceased, did so while acting within the scope of their duties.


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  1. Whether the plaintiff is entitled to M210, 545.02 as damages for the unlawful and wrongful killing of her late father.


When deciding the question of vicarious liability where a servant is acting within the scope of his duties, it has been stated as follows in R.G. Mckerron"s The law of Delict 7th Edition p 95,


"A master is liable for any wrongful act committed by his servant which he has authorized or ratified. A master is also liable for any wrongful act committed by his servant in the course of carrying out his instructions or whilst engaged in any activity reasonable incidental thereto."


It was also stated in the Mhlongo Case (Supra) that;


"... when a wrongful act is committed by a member of the force in the course or scope of his employment, the State is prima facie liable. It is then for the state to show that, in committing the wrongful act, the policeman was engaged upon a duty or function of such nature as to take him out of the category of servant pro hac vice. In order for the duty of function to take him out of the category of servant it must be one which is personal to the policeman in the sense that from its very nature the State is so deprived of the power to direct or control him in the carrying our of his duty or function that he cannot be regarded pro hac vice as the servant of the State."


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The above is a trite principle of law. This being the legal position, then the court is always left with the question; Was the act complained of within the scope of the servant's employment or not? In deciding this question, courts are advised to look at the particular facts and circumstances of each case. According to Mckerron (Supra), the test to be applied is;


"Did the servant do the act while about the business of his master, or did he do it while on his own business and for his own purposes?"


From my understanding of the above statement, in determining the question of vicarious liability, the test to be applied is that of control by the State/master on the policeman/servant during the particular commission of the act. In other words when the policeman/servant was so acting, was he doing so subject to the power and/or control of his master.


In applying this test to the case at hand, a brief revisit of the salient facts shows that having decided to take action on the alleged disagreement between themselves and the senior officers, on the date in question, the members of CODESA decided to effect an arrest on some of the senior officers. They met with resistance from the seniors whereupon they shot and killed some of the senior officers, the deceased herein included.


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On these facts can it then be said that CODESA were acting within the scope of their duties? On the face of it, an arrest is part of the scope of the duties of police officers. However, an arrest is effected upon a commission of a crime. Police officers are not authorized to effect arrests whimsically. There are guidelines which they have to follow in effecting arrests. There has to be inter alia, a reasonable cause justifying an arrest of anybody. This is also one of the basic freedoms that are guaranteed under the Constitution of Lesotho.


When interrogating the facts before it, the court is not convinced that the police officers' action passes the test to wit, that on the date in question CODESA were as a matter of fact acting in the execution of their duties. My reasons are based on the fact that firstly, the mission that they embarked on was a personal one; to wit, they were disgruntled with the senior officers resulting from a disagreement between the two camps Secondly, by the very nature of their action, the Commissioner of Police was clearly deprived of the power to direct or control CODESA. To me, this is evidence of a servant who is clearly acting on a personal mission.


Mr Fosa's submission was that the police officers were in uniform, they were armed by their seniors and they were effecting an arrest all of which are proof that they were acting within the scope of their duties. I think that this submission


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overlooks the fact that if things were that simple, the concept of vicarious liability would be so without limits that in cases of this nature courts would not have to deal with the issue of action within the scope of one's duties. In other words, it would be enough for an applicant/plaintiff to show that an act complained of happened whilst a servant was still an employee of his/her master and courts would have to find in his/her favour. However, the issue is more complex than that.


Let me hasten to add that in casu, I am not dealing with the question of whether or not the arrest was legal for as it has been stated in a number of authorities, this factor per se, is not a determinant one. There are instances where courts have found the state liable even where the arrest was an illegal one because upon applying the above mentioned test, a police officer was found to have been acting within the scope of his employment. See the case of Rabie v Minister of Police and Another 1984 (1) SA 786 where it was held that;


"... the first defendant had not shown that, in committing the wrongful arrest and the acts which followed it, the second defendant was engaged upon functions which pro hac vice took him out of the category of a State servant.."


The above decision was confirmed on appeal. Although it was applicant's contention in casut that at the time of the shooting and killing of senior officers, CODESA were about the business of the employer, namely that of maintaining law and order, my


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appreciation of the facts before the court points to the contrary. I do not think that where a junior officer is in disagreement with his superiors over certain issues, purporting to arrest such a senior officer at whose resistance he is shot dead is what is meant by maintenance of law and order.


I do agree that at the time in question, the said police officers were still employees of the government under 1st respondent, but as I have already pointed that alone is not a conclusive factor.


It is for these reasons that I find that respondents have discharged their onus of showing that at the material time, although the police officers were under his employment, by their actions they were engaged in functions which pro hac vice took them out of the category of 1st respondent's servants. I therefore dismiss the application with costs.


N. MAJARA

Acting Judge


For Applicant : Mr Fosa

For Respondents : Mr Putsoane