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) ...

- 2 -

2. 
   3rd Defendant was instructed and given a mandate
   (by
   them) to record the arrest of Plaintiff and his
   handing over.

   
   

3. 
   3rd Defendant then began uttering unfounded
   baseless
   threats against Plaintiff, which threats were not
   the
   mode of carrying out 3rd Defendant's instructions
   and
   mandate.

   
   

4. 
   Police Officers are custodians of peace, order
   and
   stability and are employed as such, and they are
   mandated
   to shoot where appropriate, anybody who flees
   from lawful arrest.

   
   

5. 
   In shooting Plaintiff, 3rd Defendant was not
   carrying
   out his master's instruction. He was
   engaged in a frolic of his
   own.

   
   

6. 
   3rd Defendant was not acting within the scope of
   his
   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:

1. 
   3rd Defendant was drunk on duty at the relevant time.

   
   

2. 
   3rd Defendant was engaged in booking and
   receiving
   Plaintiff as a prisoner at the Maseru Police Station.

   
   

3. 
   3rd Defendant was carrying out his duties as a
   police
   officer in doing so.

   
   

4. 
   In the course of these events 3rd Defendant
   shot
   Plaintiff who was in custody at that time without
   any
   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 ...

- 3 -

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