HIGH COURT OF LESOTHO
OF POLICE 1st RESPONDENT
OF HOME AFFAIRS 2nd RESPONDENT
GENERAL 3rd RESPONDENT
by the Honourable Mr Justice S.N. Peete on the 8th February 2001.
15th December 1993 the Plaintiff issued summons against the
Defendants claiming M30,000.00 as compensation for the injuries
allegedly inflicted upon him by certain policemen who were in the
employ of the Lesotho Mounted Police Services of the Lesotho
Government. It was alleged in the declaration that the police some of
whom came from Mapoteng Police Station and some from Maputsoe Police
Station wrongfully shot at Plaintiff severely injuring his abdomen,
thighs and legs for no reason.
2 At once
I should refer to Rule 21 (6) which reads:-
"(6) (a) A plaintiff who sues for damages must set out
particulars of his claim in such a manner as will enable the
defendant reasonably to assess the quantity thereof.
(b) Where the claim is for damages for personal injuries the
plaintiff shall state in his declaration the nature and effects of
the disability alleged to give rise to such damages and shall as far
as is reasonably possibly state separately, what amount, if any, is
(i) medical, hospital and other similar expenses.
(ii) pain and suffering.
(iii) loss of amenities of life, (fall particulars to be given).
(iv) disability in respect of loss of income including loss to date
of declaration and future loss of income. In this respect the
plaintiffs earnings before the event giving rise to the claim must be
fully set out together with prospects for earnings he might still be
able to recover and prospects for earnings he would have had but for
(c) In all cases the particulars of damages must be set out in such a
manner as will enable the defendant, if he so desires, to make a
generally Bell, van Niekerk vs Oudebaaskraal EDMS (BPK) - 1985 (1) SA
127; Cete v Standard and General Insurance (Co) Ltd - 1973 (4) SA 349
point out that where damages claimed are of a general nature the
plaintiff is required to particularise his claim in such a way that
the defendant is in a position to estimate the quantum thereof.
as it may, the defendants filed their plea paragraphs 2 and 3 of
which are as follows-
PARA 5 THEREOF
to deny the presence of Mantoro Makaliana, Sefuku Mabetha and Matela
in the said operation and that there was no reason for firing at
plaintiff, the rest of the contents are admitted. The plaintiff was
mistakenly shot at in an attempt to immobilise the bus which he was
driving in an attempt to overrun the police who had followed him from
Mapoteng and wanted to arrest him.
PARA 6 THEREOF
admit that plaintiff might have suffered pain the rest of the
contents are denied and plaintiff is put to proof thereof. The police
are justified to act in the manner they did and wish to reiterate the
contents of paragraph 2 above."
case such as this one, the incidence of onus is very important
because the whole case revolves around the issue whether the shooting
was justified in the circumstances of the case. Section 6 of the
Constitution of Lesotho states-
person shall be entitled to personal liberty, that is to say, he
shall not be arrested or detained, save as may be authorised by law
in any of the following cases, that is to say
reasonable suspicion of his having committed, or being about to
commit a criminal offence under the law of Lesotho."
case of Senti and Lenko vs Commissioner of Police and Attorney
General CIV/T/15/97 (unreported) Monapathi J. said
"The right of every citizen to freedom of movement and liberty
is fundamental. An arrest by its nature .... constitutes a serious
restriction ....The law permits the police to effect arrest if there
are factual circumstances on the basis of which they objectively
suspect that certain offences have been committed. It is trite law
that the onus of proving the existence of such circumstances rests
squarely on the person who alleges them (Tsose vs Minister of Justice
- 1951 (3) SA 10 Brand vs Minister of Justice - 1959 (4) SA 712 at
714 per Ogilivie Thompson; Linoko vs Rex 1991-92 LLR (Bulletin) 109."
discussing the circumstances of this case it shall also be important
to assess whether the arrest to be affected was for the purpose of
bringing the plaintiff before the courts of law or merely to harass
and punish him summarily for acts committed by him that morning at
Makhoroana and Mapoteng.
plaintiff gave evidence to the effect that he is aged about
thirty-three and that in September 1993 he was employed by Mathepa
Mohanoe as a bus driver. At the time he was driving an Isuzu Coaster
from Phororong via Makhoroana - Mapoteng to Maputsoe. He told the
court that on the 16th September 1993 he started the engine of his
bus and observed that a group of would be- passengers standing at the
gate and that he then saw a van stopping near the group and the
driver talking to them. He says he then saw some of these people
embark the van; he later got a report that the van driver was
transporting these passengers at a lesser fare. He told the court
than in Lesotho vans are never licenced to carry passengers and that
the van was pirate taxi.
he followed this van from behind and it continued picking up
passengers along the road.
up with the van at Makhoroana bus-stop where he learned that it
belonged to one Mosoeu - a Police officer at Mapoteng Police Station.
(I should here note that at the time of this trial Mosoeu had since
the court that he then went to the driver of the van and asked him to
hand over all the monies he had collected as fares from Phororong.
When he refused, Pule-his bus conductor - drew a knife and stabbed
the driver on the arm and he, the plaintiff, struck the driver with a
stick. Whereupon the driver took out money amounting to about M300.00
and gave it to plaintiff.
he then drove on to Mapoteng Police Station. In the charge office he
found Mr Mosoeu to whom he made a report about the occurrences at
Makhoroana's. He says he also handed over the M300.00. He says that
Mosoeu then locked the conductor Pule, in a cell and ordered
plaintiff to go and call his employer.
As he was
about to drive his bus away the van in question suddenly arrived at
the police station and after a report had been made by its occupants,
Mosoeu then attempted to stop the plaintiffs bus. Upon stopping, the
plaintiff was ordered to park the bus and disembark and park the bus.
He says he noticed a changed mood in Mosoeu. When the passengers made
a lot of noise about being delayed, he says he drove the bus away
telling Mosoeu that he would report to his employer at Metro
the court that at Metro he reported to his employer and drove on to
the Maputsoe bus stop where his passengers alighted. After about 30
minutes he then saw Mosoeu arriving with four policemen in uniform
and were all armed with SLR rifles. He says Mosoeu then approached
the bus holding a revolver and said "come out I kill you."
He says he then rolled up the bus window because he realized Mosoeu
was angry. As other police approached he told them "The owner of
the bus is at Metro, let us go there we talk there." As he
started driving the bus, a firing began; he says the first bullet got
him in the waist region and caused him to faint in pain. He says the
bus having stopped, Mosoeu then entered the bus and shot at his
abdomen at point blank (The witness undressed partly to reveal the
scar next to his navel and he also pointed out about five scars one
being on the leg.
he feigned death and Mosoeu left; and the members of the public then
took him to Jessy's hospital and was later transferred to Mapoteng
Maluti Adventist Hospital where he was hospitalised for six weeks.
that police later visited him at his home telling him that they were
coming to arrest him. He told them that he and his lawyer would meet
them at T.Y.
that no docket was found at T.Y. nor has he ever been charged with
any offence since then.
cross examination, he explained that the pirating van was the cause
of the whole trouble on that day and admitted having assaulted the
pirating driver and having dispossessed him of the M300.00. He
insisted that he reported to the
police before the driver of the van arrived. He went on to say that
before he drove his bus away, Mosoeu had not informed him that he was
being arrested but instead had said "Go into the cell."
confrontation at Maputsoe occurred about one and half hours later. He
says they found him in the bus which was then stationary at Maputsoe.
"Question:- When they came, you closed the door and window of
the bus - closing yourself in?
Answer:- Yes, because Mosoeu had said "come out I kill you"
They did not enter the bus."
he started the engine and as the bus moved forward the shooting
Shooting (you) was accidental... they intended to shoot the wheels
Answer: I don't know that .. but Mosoeu later came into the bus and
shot me when the bus was at Frasers."
plaintiff then closed his case.
Mokhanyeli Albert Tokelo was called as the only witness for the
defendants. His story went on like this: On the 16th September 1993
he was on duty at the Mapoteng Police Station and at about 10 a.m.
two men arrived in a van at the station. One of them had a bleeding
injury on his hand and he made a report concerning the plaintiff;
they also reported that they had been dispossessed of about M300.00.
He says Lance sergeant Mosoeu then ordered him to go to the road and
stop the bus as it passed.
driven by plaintiff was later stopped and the plaintiff escorted into
the charge office wherein Mosoeu informed Plaintiff that he was
arresting them for forcibly taking the money and for assault. Mosoeu
then ordered plaintiff to drive the bus into the police yard; but
upon getting into his bus, the plaintiff suddenly drove off towards
Maputsoe. He says that Mosoeu never agreed that the owner of the bus
was to be fetched. Understandably so because the offences allegedly
committed did not involve the owner of the bus but involved the
plaintiff and his conductor.
that he accompanied Mosoeu to Maputsoe having armed themselves with
SLR rifles. They drove in the van in question to Maputsoe where they
reported themselves to the Maputsoe Charge Office and explained their
mission. They were then complemented with other armed police
officers. On arriving at the bus-stop they found plaintiff in the
driver's seat in the bus. They then surrounded the bus and were all
armed. He then saw plaintiff roll up the window and go over to close
the passenger door. He says he heard when Mosoeu order one police man
to run and fetch to a tear gas cannister from the Charge Office. The
bus was all the time surrounded by about six armed policemen. He says
that once the policeman arrived with the cannister, the bus driver
suddenly drove off towards the police standing at the front of the
bus, and they had to jump aside. He then heard a gun shot. He
realised that the bus had been shot on the wheels and diesel was
leaking. He says many gun shots then followed. The bus continued
moving a distance of about two hundred meters until it stopped near
Frasers. When they arrived they found the driver had already been
taken to a hospital nearby where was later transferred to Mapoteng
Maluti Adventist Hospital.
defendants too closed their case.
case of Tsose vs Minister of Justice and Others 1951 (3) SA 10 at 17
Schreiner J.A. speaking on lawfulness or otherwise of arrest had this
"If the object of the arrest, though professedly to bring the
arrested person before court, is really not such, but is to frighten
or harass him and so induce him to act in a way desired by the
arrester, without his appearing in court, the arrest is, no doubt
unlawful. But if the object of the arrester is to bring the arrested
person before the court in order that he may be prosecuted to
conviction and so may be led to cease to contravene the law, the
arrest is not rendered illegal because the arrester's motive is to
frighten or harass the arrested person into desisting from illegal
conduct. An arrest is not unlawful because the arrester intends and
states that he intends to go on arresting the arrested till he stops
contravening the law if the intention always is after arrest to bring
the arrested person to prosecution .... For just as the best motive
will not cure an otherwise illegal arrest so the worst motive will
not render an otherwise legal arrest illegal".
unfortunately suffers an acute paucity of witnesses; there is only
one witness for each side; and important witnesses have not been
called especially police officer Mosoeu. It is however clear that on
that day the plaintiff had allegedly committed certain unlawful acts
or offences like assaulting the driver of the pirating van and
forcibly dispossessing him of the fares collected that morning.
Whether plaintiff reported the incidents first at the Mapoteng Police
Station it seems to me is not very material because arrestable
offences had been committed by plaintiff that morning at Makhoroana
bus stop and I am convinced that when he drove his bus away and sped
off to Maputsoe the plaintiff had not been permitted to leave by
Mosoeu. This conduct caused Mosoeu to follow plaintiff in hot
in issue in this case is whether the use of force was justified and
if justified whether reasonable bounds were exceeded in the
circumstances of the case.
42 of the Criminal Procedure and Evidence Act 1981 reads:-
"42. (1) When any peace officer or private person authorised or
require under this Act to arrest or assist in arresting any person
who has committed or is on reasonable grounds suspected to having
committed any of the offences mentioned in Part II of the First
Schedule, attempts to make the arrest, and the person whose arrest is
so attempted flees or resists and cannot be apprehended and prevented
from escaping, by other means than by the peace officer or private
person killing the person so fleeing or resisting such killing shall
be deemed justifiable homicide.
(2) Nothing in this section shall give right to cause the death of a
person who is not accused or suspected on reasonable grounds of
having committed any of the offences mentioned Part II of the First
Schedule, the offence of theft being limited for the purposes of this
section to theft in a dwelling house at night, and theft of stock or
clear that under this section the user of the force bears onus to
justify the use of such force on a balance of probabilities and in
this case, the incidence of the onus rests squarely on the
defendants. I will assume in defendant's favour that Mosoeu was
indeed justified in arresting the plaintiff for certain offences
already alluded to before in this judgment.
sanctity of human life, bodily integrity and liberty is a cornerstone
of the Bill of Rights in our Constitution, and in enforcing the laws
of the land, the police must always exercise restraint in the use of
lethal force in effecting arrest. Each case will of course depend on
its own particular circumstances. Section 5 (2) of the Constitution
(2) without prejudice to any liability for a contravention of any
other law with respect to the use of force in such cases as
hereinafter mentioned, a person shall not be regarded as having been
deprived of his life in contravention of this section if he dies as
the result of the use of force to such an extent as is necessary in
the circumstances of the case.
order to effect a lawful arrest or to prevent the escape of a person
lawfully detained- (My underlining)
quite clear that Section 5 (2) of the Constitution limits the powers
of the police to use force to such as is reasonably necessary and the
use of force is limited to offences mentioned in Part II of the First
Schedule which lists certain serious offences. In my view whilst it
is clear that the plaintiff was being pursued by Mosoeu for having
allegedly committed robbery and assault at Makhoroanas the pertinent
question rests on the issue whether the police used force which was
proportional to the seriousness of the offences. The onus is upon the
defendants, as the users of force, to show on a balance or
probabilities justification and reasonableness of the force used. In
their use of force whether to kill or incapacitate a fleeing suspect,
the police have to exercise restraint and use lethal force as matter
of last resort when all other means have failed; for example, when
the police pursuing a fleeing suspect are armed with rifles, the
police have to warn the suspect that the rifles may be used, and if
necessary perhaps to shoot into the air before actually shooting at
the suspect. In this case single burst of firing at the wheels of the
bus could have easily punctured them. It seems to me that the
shooting was done more to incapacite the driver than to puncture the
instant case the plaintiff apparently defied the order given by
Mosoeu and drove the coaster away from the Mapoteng Police Station.
This naturally should have infuriated Mosoeu who then followed in hot
pursuit. Now, the question is, was the force used justified in the
circumstances of the case? Could the coaster have been effectively
immobilised without injuring the driver?
not become clear whether the defiant attitude and behaviour of the
plaintiff followed his being informed that he was being arrested or
whether Mosoeu just said "come out and I kill you." Section
5 (2) of the Constitution and Section 42 of the Criminal Procedure
and Evidence Act 1981 reflect well known and powerful considerations
of legal policy: the arrest of a person deprives him of his liberty
and it is accordingly necessary that he be informed as soon as
practicably possible of the reason for the drastic curtailment of one
of his fundamental rights. Section 6 (2) of the Constitution in turn
"(2) Any person who is arrested or detained shall be informed as
soon as is reasonably practicable, in a language that he understands,
of the reasons for his arrest or detention."
to the plaintiff, Mosoeu never attempted to effect a formal arrest
upon him either at Mapoteng or at Maputsoe (of Minister van
Veilighheid en Sekuriteit –
SALR 720); R vs September-1989 (4) SA 288. It is not necessary
however to decide this point because it lacks sufficient evidence,
Mosoeu having since died and because I have decided to assume in the
defendant's favour that the arrest or attempted arrest was lawful.
case I propose therefore to proceed on the premise that Mosoeu and
his policemen were entitled to arrest the plaintiff and to pursue him
if he attempted to flee; the inquiry then should be whether in the
light of the circumstances of this case, the force used was justified
and excusable. As I have already pointed out, the onus to justify the
use of force rests upon the defendants to discharge the same on a
balance of probabilities. Here we have a case of a suspect who is
found seated in the bus, probably unarmed, and whose bus is
immediately surrounded by six police officers all armed with heavy
rifles. In my view the bus could have been easily and quickly
immobilised by shooting at its wheels without injurying the driver,
the rifles being of a high calibre. In their random shooting, it
seems to me more probable that the shooting was done to "incapacitate
the driver" and in my opinion it was an excessive use of force.
The police could have shot into the air or at the bus windows to
cause plaintiff to surrender. I do not think that shooting the
deceased was accidental either because the wheels of a coaster bus
are large enough to have been targeted and shot at without injury to
the plaintiff. 1 come to the conclusion that the defendants have
failed to discharge the onus that primarily rested on them and find
that the use of force in the circumstances of this case was excessive
and hence was unlawful.
the issue of damages it should be pointed out that in the absence of
actuarial assessment it is often difficult to measure damages for
pain and suffering
mathematical precision. It is not the purpose of the law to punish
the defendant but to seek to compensate the plaintiff (Khosi vs
Babeli - 1991-96 (1) LLR 275.)
summons and declaration the plaintiff claims M30,000.00 being
compensation for pain and suffering and for other expenses. In making
an award for such non-patrimonial loss the principles of fairness and
conservatism play a decisive role; other considerations are relevant
e.g. agony and suffering of plaintiff, provocative role, if any,
played by the plaintiff in precipitating the assault and in this case
it is quite probable that plaintiff's conduct in driving the bus away
at Mapoteng against police orders to stop was provocative and a sine
qua non of the unfortunate sequel of events that led to his injuries.
On the other hand, the police, in my view, failed to exercise
restraint when this was necessary. At the end of the day the court
should exercise its discretion to decide by the broadest general
considerations on an amount which it considers to be fair in all
circumstances of the case and as it was put by Trollip J.A. in Bay
Passenger Transport vs Franzen 1975 (1) SA 269 at 274 "the court
should act conservatively rather than liberally towards plaintiff
lest some injustice be perpetrated on the defendant (favorabiliores
rei potius quam actores habentus)." In this case whilst the
injuries of the plaintiff were quite serious in that they involved
extreme pain, the plaintiff has fully recovered despite the scars
still visible on his body, and the court was not advantaged with any
evidence to support the amount as claimed (Blyth vs Van den Heever,
1980 (1) SA 191). Pain and suffering, it has been said, cannot be
expressed directly in money since it lacks an inherent patrimonial
"The amount to be awarded can only be determined by the broadest
general considerations and the figure arrived at must necessarily be
uncertain depending upon the judge's view of what is fair in all
circumstances of the case" - Sandier vs Wholesale Coal Suppliers
Ltd 1941 AD 194 at 199; Mutual and Federal Insurance Co Ltd vs
Swanepoel - 1988 (2) SA 1 at 11. It has not been shown that
disfigurement has occurred or that this has affected the plaintiffs
personal and professional life as a husband or as a driver.
considered the circumstances of this case and the role played by
plaintiff and defendants, the circumstances under which the shooting
occurred and the nature and extent of injuries suffered by plaintiff,
I award an amount of M12,000.00 as compensation.
Plaintiff : Mr Hlaoli
Defendants : Mr Molapo
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