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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CIV) 76/2024 CIV/T/0521/23
In the matter between –
TEBOHO MODIA APPELLANT
and
COMMISSIONER OF POLICE 1ST RESPONDENT
ATTORNEY GENERAL 2ND RESPONDENT
CORAM: DAMASEB, AJA
VAN DER WESTHUIZEN, AJA
MATHABA, AJA
HEARD: 15 APRIL 2025
DELIVERED: 2 MAY 2025
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FLYNOTE
Police – Malicious arrest – Claim for damages – Special plea of prescription – Police Service Act 1998, s 77 – Whether High Court entitled to determine prescription without hearing oral evidence – Failure to adduce evidence on interruption of prescription – Whether remittal appropriate – Use of “torture” in absence of supporting evidence.
The appellant, a senior police officer, sued the Commissioner of Police for damages arising from an alleged malicious arrest and detention in November 2021. The respondents entered a special plea, contending that the claim was prescribed under section 77 of the Police Service Act 1998, which requires actions to be instituted within six months of the cause of action unless an extension is granted. The High Court (Mahase J) upheld the special plea without hearing oral evidence, and dismissed the claim with costs.
Held, allowing the appeal and remitting the matter to the High Court—
1.
A plea of prescription may raise mixed questions of law and fact. Where there are disputes of fact, particularly concerning the date of accrual or whether the period was interrupted, the court should not determine the issue without hearing evidence: Naha Mahao v Lekhoa Moepi and Others (C of A (CIV) 52/2024) applied.
2.
Both parties agreed in the Court of Appeal that evidence was necessary to determine the plea properly. The High Court erred in resolving the issue solely on affidavit evidence and must rehear the matter with the benefit of oral testimony.
3.
In a postscript, the Court expressed concern over the High Court’s reference to "torture" in the absence of any allegation or evidence to that effect in the papers. Caution was urged in the casual use of language implicating serious human rights violations.
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JUDGMENT
J VAN DER WESTHUIZEN, AJA:
Background
[1] In the High Court the appellant, a senior police officer, claimed damages of M500 000.00 for malicious arrest and M300 000.00 for contumelia, from the first respondent, for his alleged unlawful arrest on 13 November 2021 and detention until 15 November 2021. According to him, he was informed on the day of his release that he would be contacted, once the police investigation regarding possible charges against him have been completed. However, he was neither contacted, nor charged with any crime.
Special Plea
[2] As defendants in the High Court, the respondents before this Court entered a special plea. According to them, the appellant, as plaintiff, failed to comply with section 77 of the Police Service Act of 1998, by instituting his action within six months of the accrual of the cause of action. He furthermore did not apply to a court for extension of the period, as he was entitled to do. More than six months went by before the appellant instituted his claim. He denied that the claim had prescribed though.
[3[ Regarding the calculation of the period factual disputes arose. One of these centred around the respondents’ allegation that the appellant had indeed been charged, under the number CR0098/22, which is denied by the appellant.
High Court
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[4] In the High Court Mahase J proceeded without hearing oral evidence. She analysed the factual allegations and arguments on the papers and concluded:” [t]he defendants’ special plea raised herein is upheld with costs and the plaintiff’s application (sic) is dismissed.”
This Court
[5] On behalf the appellant it was argued in this Court that evidence should have been led, in order to enable the High Court to make an informed decision. In her written argument counsel quoted from what she described as the respondents’ heads of argument before the High Court, namely that “…it would not be possible to determine the prescriptive period without leading evidence to that effect”.
[6] Counsel further relied on Naha Mahao v Lekhoa Moepi and Others (C of A (CIV) 52/2024 LSCA 38(1)) as authority that a court errs by dismissing a claim solely based on a special plea of prescription, without evidence. Prescription involves mixed questions of law and fact, especially when interruption is alleged, as in this case.
[7] In response to a question by the presiding judge, counsel for the appellant and the respondents agreed that evidence should have been led and that the matter should be remitted to the High Court.
[8] The failure of the High Court to hear evidence in order to adjudicate a special plea based on alleged prescription is indeed fatal. The matter has to be remitted. Thus, the appeal has to be upheld and the High Court’s order must be set aside.
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Costs
[9] The appellant asked for costs, because the respondents had opposed the appeal. In court counsel for the respondents immediately agreed that the High Court had erred. If the appeal were unopposed, the appellant would still have to be present before this Court. Costs in the cause would be fair.
Torture
[10] Aside from the decisive conclusion above, a note on paragraph [6] of the High Court’s judgment is – in my mind at least – warranted. In narrating the factual background to the appellant’s claim, the following is stated:
“The fact that the applicant was arrested and detained in the way that he alleges but had ultimately not been formally charged to date after having endured torture and degrading inhuman treatment in the hands of the police whilst they (police) had not had investigations completed is a matter of serious concern which this Court frowns upon.”
[11] Assuming that the term “applicant” refers to the plaintiff in this matter, the statement that the allegations warrant serious concern is to be applauded. To be “frowned upon” would indeed be a mild response to torture by the police.
[12] However, according to the appellant (as plaintiff in the High Court) he was unlawfully arrested and detained. I was unable to find anywhere in the papers before this Court an allegation that he was tortured. In response to a question from the Bench, both counsel for the appellant and the respondents were of the same
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view. In opposing the appeal, the last-mentioned was presumably supposed to defend the judgment. Torture is not part of this case.
[13] Torture is a very serious matter in domestic criminal law, the constitutional protection of fundamental rights and international human rights law. Definitions and views on the boundaries of torture differ. Using the term loosely to refer to a wide range of unacceptable actions is ill advised and dangerous, though. It could cheapen and devalue the core meaning of the concept. The level of rejection it deserves will be reduced and its consequences could become minimal.
Order
[14] In view of [2] to [9] above –
(a)
the appeal is upheld;
(b)
the order of the High Court is set aside;
(c)
the matter is referred back to the High Court; and
(d)
costs will be costs in the cause.
____________________________________
J VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
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I agree:
___________________________
PT DAMASEB
ACTING JUSTICE OF APPEAL
I agree
___________________________
AR MATHABA
ACTING JUSTICE OF APPEAL
FOR THE APPELLANT: ADV N MAKAI
FOR THE RESPONDENTS: ADV T NKUEBE