CIV/T/480/85 IN THE HIGH COURT OF LESOTHO
In the matter of :
LEFU MOKHESUOE Plaintiff
MINISTER IN CHARGE OF POLICE 1st Defendant
SOLICITOR GENERAL 2nd Defendant
TROOPER PHOHLO 3rd Defendant
JUDGMENT
Delivered by the Hon. Acting Mr. Justice D. Levy on the 9th day of July, 1986
Plaintiff claims payment of damages for injuries suffered by him when he was shot by the 3rd Defendant. It is alleged that 3rd Defendant is a policeman who was acting within the scope of his employment as such by the 1st Defendant when he shot the Plaintiff.
1st Defendant and 2nd Defendant (the Defendants) in the plea filed on their behalf, denied that at the material time 3rd Defendant was acting within the scope of his employment or that the plaintiff has suffered damages as claimed.
The plea thus far discloses a good defence to the action, but because of the further allegations made by the Defendants in their plea exception has been taken to it by the Plaintiff on the grounds that it does not disclose a defence.
Defendants allege (and I quote in extenso that:
(1) 3rd Defendant was present at the Maseru Police Station
when the Plaintiff and other police officers arrived there.
(c) ...
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3rd Defendant was instructed and given a mandate(by them) to record the arrest of Plaintiff and hishanding over.
3rd Defendant then began uttering unfounded baselessthreats against Plaintiff, which threats were not themode of carrying out 3rd Defendant's instructions andmandate.
Police Officers are custodians of peace, order andstability and are employed as such, and they aremandated to shoot where appropriate, anybody who fleesfrom lawful arrest.
In shooting Plaintiff, 3rd Defendant was notcarrying out his master's instruction. He wasengaged in a frolic of his own.
3rd Defendant was not acting within the scope ofhis employment and had deviated from the normal
course of his duties by going on a rampage of a drinking mission.
These allegations amount to admissions by the Defendant that:
3rd Defendant was drunk on duty at the relevant time.
3rd Defendant was engaged in booking and receivingPlaintiff as a prisoner at the Maseru Police Station.
3rd Defendant was carrying out his duties as a policeofficer in doing so.
In the course of these events 3rd Defendant shotPlaintiff who was in custody at that time withoutany lawful cause or justification whatsoever.
These admissions by Defendants amount to an admission that the 3rd Defendant notwithstanding that he was drunk on duty nevertheless was entrusted by other police officers with
/the duty ...
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the duty of booking in a prisoner at Maseru Police Station; that he then for no rhyme or reason shot at and wounded the prisoner who was the Plaintiff.
The allegations made by the Defendants how prima facie that the 3rd Defendant was acting in the course of his employment. As was pointed out in Minister of Police v Rabie 1986(1) S.A. 117(A) the Defendants in order to escape liability would have to show that in shooting the Plaintiff the 3rd Defendant "was engaged upon functions which pro hac vice took him out of the category of a State Servant". Once it is shown or admitted that the wrongful act complained of was committed by the 3rd Defendant in the scope of his employment then "the State has to show that in committing the act in question the policeman was engaged upon a duty or function of such a nature as to take him out of the category of servant pro hac vice".
It is the Defendants' defence that although the 3rd Defendant was acting in the scope of his employment in performing his duties in the Charge Office, when he came to shoot the Plaintiff he was engaged in a function of such a nature as to taken him out of the category of servant pro hac vice. It would seem to be of the essence of the defence that the 3rd Defendant in his drunken state used this occasion as an opportunity to wreak private vengeance on the Plaintiff or to vent his private feelings upon him. It is possible therefore that Defendants at the trial of the matter may show that 3rd Defendant, notwithstanding that he was on duty at the time, in carrying out his duties viz a viz the Plaintiff, was truly engaged in a frolic of his own in shooting him and that his wrongful act was totally divorced from the duties of his employment as a servant of Defendants.
/The ...
-4-The exception is dismissed with costs.
D. LEVY ACTING JUDGE
9th July, 1986
For the Plaintiff : Mr. W. C. Maqutu For the Defendants : Mr. T. Mohapi