IN THE HIGH COURT OF LESOTHO In the Matter of :
JUNIA RAMOLAHLOANE Plaintiff
COMMISSIONER OF POLICE 1st Defendant
andMAKHETHA THAELE Plaintiff
Delivered by the Hon. Mr. Justice B.K. Molai
on the 24th day of February,1992.
At the request of Che parties consolidation of the two
actions was ordered.
After the pleadings have been closed and the pre-trial
conference held, the Defendants filed with the Registrar of the High
a document styled "Notice of Exception" in
which it is stated, inter alia:
" Kindly take notice that the following point of
law will be raised on the date of hearing of this matter.
(a) There is no cause of action disclosed by the
Plaintiff against the defendants herein."
Although duly served upon them the Plaintiffs did not
respond to this document.
When, on 28th March, 1990, the matter came for hearing,
it was argued, on behalf of the defendants, that the Plaintiffs'
to the summons did not allege that the C.I.D. had been
acting within the scope of their employment. Plaintiffs' declarations
not, therefore, disclose the cause of action against the
defendants. Consequently the exception should be allowed and the
dismissed with costs.
In reply, Plaintiffs argued that regulation 4 of the
RoyalLesotho Mounted Police Regulations 1972 published under Legal
Notice No, 24 of 1972 provided:
"Every member of the Force shall, for
all purposes of these regulations, be considered to be
always on duty."
It was unnecessary, therefore, to allege in the
declarations to the summons that the C.I.D. who were members of the
Force had been
acting within the scope of their employment.
Notwithstanding the provisions of regulation 4 of theRoyal Lesotho Mounted Police. 1972. I am of the view that
where he is performing a work of a personal nature a member of the
Force is not acting within the scope of
his employment and the
defendants cannot therefore, be held liable for his wrongful acts.
The implication that members of the Force
are always acting within
the scope of their employment with the defendants who are, therefore,
liable for their wrongful acts is
a generalisation that cannot hold
water. In order that the defendants may be held vicariously liable
for the wrongful acts of the
C.I.D. as members of the Force, it is,
in my finding, necessary for the Plaintiffs' declarations to
specifically allege that the
latter have been acting within the scope
of their employment.
It is, however, significant to observe that the combined
summons was served upon the defendants in 1988. The
defendants had been allowed specified number of days
within which to react to the summons or file a subsequent process.
of exception to the declarations was, however, filed in
1990, long after the specified number of days had lapsed, all the
had been closed and the pre trial conference held.
Rule 29(1) (a) of the High Court Rules 1980
"29 (1). (a) Where any pleading lacks averments
which are necessary to sustain an action or defence, as the case may
opposing party, within the period, allowed for
the delivery of any subsequent pleading, may deliver an exception
I have underscored the words "within the period
allowed" in the above cited Rule 29(1)(a) of the High Court
Rule, 1989 to indicate my view that, in the present case, the
defendants have not complied with the provisions of the rule in as
much as they
did not timeously file their notice of exception which
is terribly out of time and, therefore, an irregular process. No
the Plaintiffs did not even bother to respond to it.
The notice of exception, irregularly filed with this
court, cannot, in my opinion, be properly entertained. It is
JUDGE 24th January, 1992.
Plaintiff: Mr. Mda
Defendant: Messrs. Malebanye & Putsoane
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