LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO. 81/2024
CIV/T/419/2017
In the matter between:
SENATSI SENATSI APPELLANT
AND
COMMISSIONER OF POLICE 1ST RESPONDENT
ATTORNEY GENERAL 2ND RESPONDENT
CORAM: DAMASEB AJA
MUSONDA AJA
VAN DER WESTHUIZEN AJA
HEARD: 08 APRIL 2025
DELIVERED: 02 MAY 2025
FLYNOTE
Delict—Vicarious liability—Police misconduct—Unprovoked assault by police officer—Plaintiff assaulted in public by officer in uniform driving police van—Whether Commissioner of Police vicariously liable for tortious acts of unidentified officer—Whether sufficient prima facie case made—Relevance of failure to cross-examine—Deviation cases and
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"close connection" test—Absolution from the instance—Whether justified.
The appellant brought an action for delictual damages against the Commissioner of Police, alleging that he was unlawfully assaulted in public by an unidentified police officer in uniform driving a marked police vehicle. The High Court granted absolution from the instance, holding that the plaintiff failed to identify the officer or prove that he was acting within the scope of his employment. On appeal, the Court of Appeal found that the trial court erred in granting absolution despite unchallenged evidence that the assailant appeared to be a police officer and was acting in an official capacity. The respondents had failed to cross-examine the plaintiff on key factual issues, undermining their defence. Applying the “close connection” test for vicarious liability in deviation cases, and relying on Feldman v Mall 1945 AD 733, K v Minister of Safety and Security 2005 (6) SA 419 (CC), and Lister v Hesley Hall Ltd [2002] 1 AC 215, the Court held that the Commissioner was vicariously liable for the wrongful acts of the police officer. The matter was remitted to the High Court for assessment of damages.
Held, allowing the appeal (Damaseb AJA delivering the judgment):
1.
The High Court erred in granting absolution from the instance where the evidence, unchallenged in cross-examination, showed that the assailant was a police officer acting in apparent discharge of his duties.
2.
The legal principles governing vicarious liability support the imposition of liability where the wrongful acts are closely connected with the functions of employment.
3.
The Commissioner of Police is vicariously liable for the assault.
4.
The matter is remitted to the High Court for assessment of damages.
Appeal allowed. Order of High Court set aside. Commissioner of Police held vicariously liable. Matter remitted to High Court on quantum.
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JUDGMENT
P.T. DAMASEB AJA
Introduction
[1]
‘Every profession has its small minority of rogues and incompetents. It is wrong to assume that they are typical of the whole’.1
[2]
This appeal raises the important question whether the first respondent (the Commissioner of Police) should be vicariously liable for the criminal conduct of a rogue policeman who perpetrated an unprovoked assault on an innocent member of the public. Innocent because the attack on the victim was not as a result of any suspected wrongdoing or a breach of the peace attributable to the victim.
[3]
On 13 September 2024, the court a quo (Banyane J) absolved the Commissioner of Police from the instance in respect of the appellant’s (plaintiff’s) claim for delictual damages arising from the assault perpetrated against him by an unidentified policeman.
[4]
In his particulars of claim the plaintiff alleged that ‘On or about March, 2017, at or near Ha Abia, the Plaintiff was unlawfully assaulted by the officers under the command of the [Commissioner of Police]…within … public sight.’ The plaintiff alleged that ‘Those…policemen were acting within the course and scope of their
1 Hamilton, R.G. All Jungle and Riot: A Barrister’s History of the Bar. 1988 at p. 30.
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employment with the [Commissioner of Police]’. He claimed M360 000.00 for pain and suffering, M55 000.00 for contumelia and M5000 for future and past medical expenses.
[5]
When asked in a request for further particulars to ‘give the names of’ the assailants, the plaintiff replied that it was a matter for evidence.
[6]
In their plea the defendants denied that there was a report made of an assault at Ha-Aiba. They also alleged that the ‘Plaintiff is vague in his allegations as he omits and refuses to give the names of his assailants even though the incident happened in sight of the public.’
[7]
The plaintiff had made a witness statement in the course of the proceedings but before the actual trial, in which he stated that he was assaulted at or near Ha Abia and that the ‘officers simply assaulted the plaintiff only because [they were] of the view that he parked his vehicle in the manner that is likely to obstruct the traffic.’
[8]
The plaintiff then testified under oath. He testified that on 18 March 2017 at around 5:00 pm, he was assaulted by a police officer near the gate of his parents' property, where he was preparing to lead a church sermon. He had been driving a vehicle from a car wash when he heard a horn behind him. Upon noticing a police vehicle signalling for him to stop, he pulled over just before entering the gate of his home. A police officer approached him and
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questioned why he was blocking the road. The plaintiff explained that he was about to enter his yard. The officer then pulled him out of the car and threw him to the ground. The officer ‘kicked me while still lying there on the floor even stepping on me with his shoes’; struck him with a fist, pulled him down, and continued hitting him. Another police officer accompanying the attacker intervened, reprimanding the attacker for his conduct.
[9]
The plaintiff also testified that he got the impression that the officer who assaulted him was intoxicated at the time of the incident. After the incident, he reported the assault at Lithoteng police station, where he was given a medical form to see a doctor before returning to open a case on 20 March 2017.
[10]
The cross-examination on behalf of the Commissioner of Police did not achieve much, except to try and raise doubt about whether the plaintiff in fact visited a medical facility. The cross-examination is noteworthy not so much for what it achieved but for what it failed to do, as will soon become apparent.
[11]
The plaintiff’s witness in material respects corroborated the plaintiff’s version of the assault and that it was perpetrated by a police officer in uniform who at the time was with a police van.
[12]
At the end of the plaintiff’s case, the Commissioner of Police closed her case without leading any evidence.
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The High Court
[13]
Banyane J defined the ‘sole issue for determination …whether the person whose conduct is complained of was a police officer, in order to justify holding the Commissioner of Police vicariously liable for damages’. The learned judge observed that she was ‘faced with paucity of evidence and inconsistent assertions concerning the date of the alleged assault and the identity of the perpetrators’.
[14]
The court a quo absolved the Commissioner of Police from the instance and dismissed the appellant's claim. The court held that the appellant had failed to provide sufficient evidence to prove his case on a balance of probabilities.
[15]
According to the court a quo, the plaintiff failed to provide adequate evidence to identify the police officers who allegedly assaulted him; the evidence was lacking in both the names of the police officers and a detailed description of the police vehicle, such as its registration number or markings.
[16]
The court a quo took the view that the plaintiff's statements about the date of the assault were inconsistent, varying between 18 March and 20 March 2017, with discrepancies between his testimony and the medical form dated 19 March 2017 and the doctor's examination on 20 March 2017.
[17]
The court a quo also expressed doubt whether the individuals involved were actually police officers. The court a quo stated:
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‘[22] The evidence adduced by the plaintiff and his witness is that the former had an altercation with the policeman on the day in question. They said that these men were police officers because they were driving a police car with a blue light on top of its roof and the perpetrator was in police uniform. Notably, the information appears for the first time in evidence. It is not mentioned in the declaration or the plaintiff’s witness statement. Despite the belated mention of the police vehicle, neither the plaintiff nor his witness gave a sufficient description of this vehicle in terms of its distinctive identification marks including its registration number, and whether it was branded ‘’Lesotho Mounted Police Serive’’ or had a police logo on the doors or bonnet.’
[18] According to the learned judge, it was ‘obvious that lack of precision and paucity of information in the declaration and during the trial inhibited the defendants from answering or defending the plaintiff’s claim either in the plea or in evidence during the trial. Their inability to meaningfully challenge the plaintiff’s allegations as argued by the plaintiff’s counsel, is a result of scanty information supplied, and not because the plaintiff made a good case. The court is also inhibited from properly and fairly deciding the matter’.
[19] The court a quo accordingly held that the plaintiff failed to discharge the burden of proof.
The appeal
[20] Aggrieved, the appellant appealed to this Court against the judgment and order of the court a quo. He alleges that:
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‘a. The court a quo erred and/or misdirected itself by absolving the first respondent from the instance; and
b.
that the court a quo erred and/or misdirected itself by dismissing the appellant's claim despite the unchallenged evidence that the appellant was assaulted and humiliated in public by the police under the command of the first respondent.’
[21] During oral argument, the appellant sought to abandon the second ground of appeal because it incorrectly suggested that the court a quo not only granted absolution from the instance but also ‘dismissed’ the appellant’s claim. The concession is properly made but did not justify abandoning the ground in its entirety. The appeal was accordingly argued on the basis that all the court a quo did was to grant absolution from the instance.
Submissions
The appellant
[22] The plaintiff’s primary contention is that the court a quo misdirected itself in granting absolution from the instance. He argues that the evidence clearly establishes that he was assaulted by individuals identifiable as police officers under the command of the Commissioner of Police, based on their blue police uniforms bearing the police logo, the police vehicle with a blue lamp, and the fact that the assault occurred in public view.
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[23] The appellant contended that he had established a prima facie case against the respondents and that the court a quo erred in granting absolution from the instance.
The respondents
[24] The respondents support the court a quo’s judgment and order. The respondents dispute the Commissioner of Police’s vicarious liability. They rely on the appellant's alleged failure to provide sufficient evidence to establish a prima facie case against the police by proving the identity of the attacker. They further contend that proof of identity of the perpetrator was necessary to show that he was in the employ of the Commissioner of Police. The further argument is that the plaintiff’s alleged failure to prove that the vehicle used by the perpetrator was in fact a police van, negates the inference that the assault was perpetrated by the rogue policeman ‘within the course and scope of his employment’.
[25] Crucially, the respondents maintain that the actions of the rogue police officer were personal acts of aggression and were not committed in furtherance of his employer's interests. It is said that the fact that the attacker was drunk at the time of the incident raises the inference that he was off duty and not in the pursuit of the employer’s interests.
[26] According to the respondents, two important considerations lead to the inference that the attacker was not acting within the scope and course of his employment with the Commissioner of Police but in furtherance of his private interest. First, Police regulations prohibit the consumption of alcohol while on duty.
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Second, the fact that the attacker was reprimanded by his companion for his aggression towards the appellant.
[27] The respondents rely on Booysen v Minister of Safety and Security2 for the proposition that an employer will not be held liable where the delict was committed solely for the employee’s own interests. Where the wrongful act is in pursuit of a private interest unrelated to the business of the employer, Booysen suggests, according to the respondents, it ceases to be a sufficiently close link between the employee’s actions and the business of the employer.
[28] Therefore, the argument goes, the plaintiff failed to meet the burden of proof required to establish vicarious liability.
Discussion
The alleged contradictions and inconsistencies
[29] The court a quo and, on appeal, the respondents, placed great store to the inconsistencies in the appellant’s assertions in the pleadings, the witness statement and under oath - as to what transpired before the assault, when the assault actually took place, when he reported the assault and just what he did after it.
[30] Counsel for the respondents conceded that the so-called inconsistencies in the appellant's version were not put to the plaintiff during cross-examination; yet it was in no small measure
2 Booysen v Minister of Safety and Security [2018] ZACC 18.
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one of the reasons why the court a quo granted absolution from the instance.
[31] It is common ground that the respondents never challenged the appellant in cross-examination regarding the alleged inconsistencies. Nor was the plaintiff challenged on his version that the vehicle he linked to the attacker actually belonged to the Lesotho Mounted Police (LMP). He was also not challenged about the breach by the attacker of the police regulations which prohibited the consumption of alcohol whilst on duty. The plaintiff was also not challenged in cross-examination that the attack on him was in pursuit of the rogue policeman’s private interest.
[32] The respondents had the duty to cross-examine the plaintiff on those matters which they sought to rely on to escape liability. In President of the Republic of South Africa and Others v South African Rugby Football Union and Others,3 the Constitutional Court of South Africa emphasised the importance of cross-examination as follows:
‘[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or
3 President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999).
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her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn37 and has been adopted and consistently followed by our courts.38
[33] In light of the failure to cross-examine, first, nothing turns on the alleged inconsistencies in the plaintiff’s case. The version that stands is that which he testified to at the trial. Second, the other issues such as whether the vehicle involved was actually LMP’s, the breach of police regulations by the attacker, and whether he was actually on duty at the time were not raised either in the plea nor in cross-examination. Not much can therefore turn on those to negate the Commissioner of Police’s vicarious liability. Nevertheless, I will still deal with each of those to show that the probabilities point more to the presence of vicarious liability.
[34] The main issue on appeal is whether the court a quo misdirected itself by absolving the Commissioner of Police from the instance. In other words, whether there was admissible evidence on which, at the end of both the plaintiff’s case and that of the defence, there was insufficient evidence on which the court could grant judgment in favour of the plaintiff.
37 (1893) 6 The Reports 67 (HL).
38 See, for example, R v M 1946 AD 1023 at 1028 per Davis AJA, Watermeyer CJ, Greenberg JA and Schreiner JA concurring; Small v Smith 1954 (3) SA434 (SWA) at 438 E – H; S v Govazela 1987 (4) SA 297 (O) at 298J – 300B; S v Van As 1991 (2) SACR 74 (W) at 109 b – g; Van Tonder v Killian NO en ‘n Ander 1992 (1) SA 67 (T) at 72I – 73A and, generally, Pretorius Cross-examination in South African Law (Butterworths, Durban 1997) and the authorities referred to there.
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[35] The following facts and circumstances were unchallenged when the defence’s case closed:
a.
The appellant was assaulted by an individual who fit all descriptions of being a police officer: he wore a police uniform and drove a police vehicle equipped with blue lights typical of police vehicles;
b.
The attack was unprovoked and wrongful and constituted a delict;
c.
The appellant received outpatient treatment for injuries sustained in the assault.
[35] The only evidence on record (and from the plaintiff) is that the perpetrator of the assault was a police officer. The assault is also not challenged. Based on the submissions made on appeal on behalf of the respondents, the crisp issue that arises is whether the facts of this case fall in the category of ‘deviation cases’4 in the context of vicarious liability.
[36] To repeat, the issue raised on appeal that the rogue policeman was acting in his own interest when he attacked the plaintiff was neither foreshadowed in the plea nor put to the plaintiff in cross-examination. Nor did the plea or cross-examination of the plaintiff suggest that the attacker was not a policeman or that the vehicle in question was not that of the Lesotho Mounted Police.
4 A “deviation case” refers to a case in which a delict is committed in circumstances where an employee deviates from the normal performance of his or her duties.. See Botha and Millard “The Past, present and future of vicarious liability in South Africa” (2012) 2 De Jure 225 at 231.
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[37] Be that as it may, in Feldman v Mall5 the test for vicarious liability in deviation cases was stated as follows ─
“If an unfaithful servant, instead of devoting his time to his master’s service, follows a pursuit of his own, a variety of situations may arise having different legal consequences.
(a)
If he abandons his master’s work entirely in order to devote his time to his own affairs then his master may or may not, according to the circumstances, be liable for harm which he causes to third parties. If the servant’s abandonment of his master’s work amounts to mismanagement of it or negligence in its performance and is, in itself, the cause of harm to third parties, then the master will naturally be legally responsible for that harm; there are several English cases which illustrate this situation and I shall presently refer to some of them. If, on the other hand, the harm to a third party is not caused by the servant’s abandonment of his master’s work but by his activities in his own affairs, unconnected with those of his master, then the master will not be responsible.
(b)
If he does not abandon his master’s work entirely but continues partially to do it and at the same time to devote his attention to his own affairs, then the master is legally responsible for harm caused to a third party which may fairly, in a substantial degree, be attributed to an improper execution by the servant of his master’s work, and not entirely to an improper management by the servant of his own affairs.”6
5 Feldman (Pty) Ltd v Mall 1945 AD 733.
6 Id at 742.
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[38] The respondents’ suggestion that liability should not be attributed to the Commissioner of Police because the criminal conduct of the rogue policeman was not in furtherance of the interest of the employer runs against the drift of high authority where courts in other jurisdictions were faced with similar issues.
[39] I will cite only a few examples. In Lister and Others (AP) v Hesley Hall Limited,7 the House of Lords attributed liability where a warden of a boy’s hostel groomed and subjected children to sustained sexual abuse over an extended period of time. The comparison to the facts before us on appeal is that it could hardly have been suggested that the offence of rape was not the pursuit of a private interest.8
[40] In Hesley Hall, Lord Steyn stated the test as follows in para 28 of the judgment:
‘The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was so inextricably interwoven with the carrying out by the warden of his duties in Axelholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability’.
7 1 AC 215 (2002).
8 The House of Lords cited with approval the Canadian cases of Bazley v Curry, 174 DLR (4th) 45 and Jacobi v Griffiths, 174 DLR (4th) 71.
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[41] Similarly, in K v Minister of Safety and Security9 the Constitutional Court of South Africa (ConCourt) attributed vicarious liability to an employer where an on-duty police officer raped the victim. The ConCourt stated:
“The legal principles underlying vicarious responsibility are well-established. An employer, whether a Minister of State or otherwise, will be vicariously liable for the delict of an employee if the delict is committed by the employee in the course and scope of his or her employment. Difficulty frequently arises in the application of the rule, particularly in so-called ‘deviation’ cases. But the test, commonly referred to as the ‘standard test’, has been repeatedly applied by this Court. Where there is a deviation the inquiry, in short, is whether the deviation was of such a degree that it can be said that in doing what he or she did the employee was still exercising the functions to which he or she was appointed or was still carrying out some instruction of his or her employer. If the answer is yes, the employer will be liable no matter how badly or dishonestly or negligently those functions or instructions were being exercised by the employee.”10
[42] The ConCourt added at para 48.
[48] … An employee can at the same time be committing a delict for his or her own purposes, and neglecting to perform his or her duties as an employee and this has been recognised by our courts, at the very least by Watermeyer CJ in Feldman. In this case it is clear that the delict for which the applicant seeks to hold the respondent liable is the rape by the three policemen. That rape was clearly a deviation from their duties. However, when committing the rape, the three policemen were simultaneously omitting to perform their duties as policemen.
9 2005 (6) SA 419.
10 K v Minister of Safety and Security 2005 (3) SA 179 (SCA) at para 4.
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Application of the test to the facts
[43] On the facts before us, the perpetrator was a policeman employed by the Commissioner of Police, wearing what appeared to be police uniform and driving what, by all appearances, was a van belonging to the LMP. The officers involved by all appearances were engaged in the normal duty of policing in the community the police are meant to serve. There is no suggestion that the attacker and his companion were masquerading as police when in truth they were criminals who through unlawful means in the possession of a police vehicle and police uniform. Such a possibility was not suggested in cross- examination of the plaintiff.
[44] Outwardly to the victim plaintiff, the perpetrator and his companion were men performing their normal function as policemen and deserving of obedience when the plaintiff was approached and asked the questions who he was.
[45] It is significant that the perpetrator’s companion who clearly disapproved of the perpetrator’s wrongful conduct, left no contact information that could be useful to the victim plaintiff to press charges. Therein lies the significance, and not what the trial judge considered to be the plaintiff’s failure to identify the rogue policeman or the vehicle.
[46] Not only was the plaintiff subjected to brutality by an officer of the law, but the one man (another officer of the law) who could
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assist him vindicate his rights, even if personally against the perpetrator, offered him no assistance. That failure also removed any chance of the rogue officer being identified and punished or even removed from the Force, so that the public is not subjected to similar wrongful conduct in the future.
[47] The respondents’ proposition that the perpetrator was off duty is mere speculation and is, at all events, contradicted by the fact that he was in police uniform at the time of the assault and driving a police van.
[48] The facts of the present case meet the ‘close connection’ test adopted by the courts in comparable jurisdictions. This was a proper case for the court a quo to find liability against the Commissioner for the wrongful conduct of a police officer.
[49] In this regard, there are several important factors that point to the closeness of that connection. First, the policemen bore a statutory and constitutional duty to prevent crime and to protect members of the public from harm. And they were employed by the Commissioner of Police to carry out that obligation. Second, in addition to the general duty to protect the public, the policemen were in police uniform at the time of the assault. An important reason for police wearing uniforms is to make police officers readily identifiable to members of the public so that they can obey their lawful commands or seek assistance from the police in matters related to the work of the police.
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[50] Vicarious liability exists to ensure that the employer is accountable for the actions of those it employs, particularly when those actions cause harm. The Commissioner of Police (as an employer) has an obligation to hire responsible individuals who will not abuse their power and also to supervise the performance of their police duties in compliance with the police regulations.
[51] As a general proposition, the implied suggestion that members of the LMP work only until 5 pm is patently implausible. The Commissioner of Police presented no evidence that his Force works from whatever time in the morning until 5 pm. Whether or not the two officers involved in the present case were off-duty had to be determined on the probabilities, the Police Commissioner bearing the evidential burden.
[52] If, as I suspect is the case, the suggestion is that the only reasonable inference to be drawn from the attacker’s drunkenness is that he was off-duty because he could not have been on duty in that mental state, the respondents’ case is even worse.
[53] In the first place, the uncontroverted evidence is that the attack occurred around 5 p.m on the day in question. The unavoidable inference then is that whatever drinking the attacker did occurred well before 5 p.m. That points to the inability or failure by the superiors of the attacker to enforce the regulations which the Commissioner says prohibit consumption of alcohol on duty. The consequence being that, because of a lack of supervision and control, the attacker got drunk on duty and, in that state and
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whilst in police uniform and driving in a police vehicle, caused harm to a member of the public on the pretext of enforcing one or other traffic law.
[54] I therefore find that in these circumstances, to conclude that vicarious liability cannot be imputed to the respondents is a misdirection. The probabilities favour the plaintiff’s version that he was attacked by a police officer who was at the time acting within the scope and course of his employment with the Commissioner of Police.
[55] For all of the above reasons, the appeal should succeed.
Remittal
[56] During oral argument, both parties conceded that should the appeal succeed, the matter should be remitted to the court a quo to determine quantum. The concession is properly made.
Costs
[57] As far as costs are concerned, both parties accepted that costs should follow the result.
Order
[58] In the result, I make the following order:
1.
The appeal succeeds.
2.
The judgment and order of the High Court are set aside and replaced with the following:
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‘1. The Commissioner of Police is vicariously liable for the assault perpetrated against the plaintiff by a police officer on or about March 2017.
2. The Plaintiff is awarded costs of suit against the respondents, jointly and severally, the one paying the other to be absolved.’
3.
The matter is remitted to the High Court for assessment of damages.
4.
The appellant is awarded costs of the appeal against the respondents, jointly and severally, the one paying the other to be absolved.
––––––––––––––––––––––––––––––––––––––
P.T DAMASEB
ACTING JUSTICE OF APPEAL
I agree
_____________________________________
P. MUSONDA
ACTING JUSTICE OF APPEAL
I agree
____________________________________
J. VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
FOR APPELLANTS: ADV T MOHAPI
FOR 1st & 2nd RESPONDENTs: ADV M.E. TSOEUNYANE