CIV/T/429/64

IN THE HIGH COURT OF LESOTHO

In the Matter between

HLOPHEHO MOEKETSE Plaintiff

and

JOSEPH LEPEKOLA MATELA 1st Defendant
SOLICITOR
GENERAL 2nd Defendant

JUDGMENT

Delivered by the Hon. Mr. Justice B,K. Molai on the
25th day of April, 1986.

In an action brought by the Plaintiff against the
Defendants for damages, the Defendants have raised a point in
limine that the action is prescribed and must, therefore, not be
entertained.

The background of this case is that on 27th August,
1984, Plaintiff filed with the Registrar of this Court Summons
commencing action
in which he sued the defendants for damages in the
sum of M50,000.

The declaration, as amended and amplified by further
particulars, disclosed that on 5th November, 1983 1st Defendant,
acting in the
course of his duties as a police officer in the employ
of the Lesotho Government represented in this case by the 2nd
Defendant, unlawfully
shot and injured the Plaintiff Consequently,
the Plaintiff suffered damages in the sum of M50,000 being in respect
of pain, suffering,
medical expenses, loss of profit and amenities of
life.

In their plea, the Defendants conceded the shooting but
denied that it was unlawful. They stated that 1st Defendant shot the
Plaintiff
in self-defence and for that reason acted lawfully.
Consequently the Defendants denied any liability to the Plaintiff.
in any event,
Plaintiff instituted his action after the period of six
(6) months,

2/ from the

-2-

from the date on which the cause of action arose, had
elapsed. His action was, therefore, prescribed in terms of the Police
Order No. 26 of 1971 (as amended) of which S.60 provides

"60, For the protection of persons acting in

pursuance of this Order or any regulations made
thereunder, every civil action against any such person in respect of
anything done
or omitted to be done in pursuance thereof shall be
commenced within six months next after the cause of action arises and
notice
in writing of any civil action and of the subs­tance
thereof shall be given to the defendant at least two months before
the commencement
of the said action,

Provided that the court may for good cause shown, proof
of which shall lie upon the Applicant, extend the said period of six
months."

Mr. Tsotsi conceded on behalf of
the Plaintiff that the action was commenced after six months from the
date on which the cause of action arose,
had expired and no written
notice of the action and the substance thereof had been given to the
defendants two months before the
commencement of the action He
contented, however, that as the defendants' plea was that 1st
defendant had shot and injured the Plaintiff
in self-defence and,
therefore, acted lawfully he needed no protection and could not be
protected by the provisions of S.60 of the
Police Order 1971.

Mrs. Ntsonyana for the Defendants took the view
that as a police officer acting in the course of his duties 1st
Defendant was acting in pursuance
of the Police Order 1971 and
was, therefore protected in all he did by the provisions of S.60
thereof.

One of the leading cases in which the question of the
scope of the words "acting in pursuance of this order or any
regulations
made thereunder," was considered is Masikane v.
Smit and Another 1965(4) S.A. 293 where Viljoen, J. dealing with
S.32 of the South African Police Order No.7 of 1958 which is
almost identical with S.60

3/ of our

-3-

of our Police Order 1971 had this to say on the issue

"I agree with Mr. Rosenthal that acts done "in
pursuance of the Act", of which the policeman and the State must
have
notice, are intended to be wrongful acts. It has never been
suggested that only regular or lawful acts fall to be embranced by
the
words "in pursuance of the Act." There are numerous
cases decided in the past which laid it down that acts done "in
pursuance of the Act" are unlawful or irregular acts creating a
liability for the policeman and/or for the State. As early as
1907
this point was dealt with in Natal in the matter of Matiwane
v. Nhlozana (1907)28 N.L.R. 532 at p.535, where Dove-Wilson J.P.
is reported to have reasoned as follows

"The contention of the Respondent in the appeal is
that that section can only give protection in the case of acts which
are lawfully
executed in pursuance of the Act. If that con­tention
is right, there appears to be no meaning in the section, because it
is
obvious that where anybody does lawful act in pursuance of the
Act, he needs no protection, and no action lies against him whether
brought within four months or not."

There can be no doubt, therefore, that if 1st Defendant
shot and injured the Plaintiff in self-defence he acted lawfully and
on the
authority of the abovementioned decision the provisions of
S.60 of the Police Order, 1971 did not apply. In any event,
whether or not 1st Defendant in fact acted in self-defence is a
matter that can, in my opinion, be established
on the evidence.

In the premises, I come to the conclusion that the point
of law raised by the Defendants, in limine, ought not to
succeed and it is accordingly dismissed with costs.

B.K. MOLAI

JUDGE
25th April, 1986.

For Plaintiff Mr. Tsotsi
For Defendant Mrs
Ntsonyana.