C. of A
(CIV) NO.22 of 2000
COURT OF APPEAL OF LESOTHO
COMMISSIONER OF POLICE 1ST RESPONDENT
GENERAL 2nd RESPONDENT
is the mother of Aubrey Bofihla Komane (hereinafter referred to as
the deceased) who was shot and killed by members of
the Royal Lesotho
Mounted Police acting within the course and scope of their employment
as servants of the Lesotho Government.
She alleged in her particulars
of claim that
his lifetime the deceased was in a financial position to contribute
to her support and in fact did so. By reason of
death she lost this support. In an action instituted in the High
Court she claimed damages in an amount of M66 758,00.
filed a plea in which they admitted that the policemen had caused the
deceased's death but denied that they had acted
unlawfully. In support of this denial they pleaded as follows:
"(a) that the said Aubrey Bofihla Komane was being lawfully
arrested on suspicion that he committed an offence.
he resisted the arrest as aforesaid, pointing a firearm at the
defendants who were effecting the arrest.
in the process of resisting the aforesaid arrest he seriously and in
a most dangerous manner threatened injury to the lives
and bodies of
the defendants who in reaction thereto, consequently caused the
death of the
trial before Peete J. it was agreed that the lawfulness of the
killing should be determined before the assessment of damages.
also agreed that the onus was on respondents to prove that the
killing was justifiable.
led evidence on the killing. When they closed their case appellant
elected not to call any witnesses.
having analysed the evidence which, in accordance with the agreement
between the parties, was limited to the issue of liability,
"Having considered all the circumstances of this case I am of
the view that fault must be apportioned proportionally and I
apportion it proportionally at 40% (plaintiff) and 60% (defendant).
The plaintiff is therefore entitled to 20% of the amount claimed
assuming the correctness of the actuary's assessment. This would then
come to M13 351,60."
now appeals on the grounds that -
court a quo was not entitled to make an award of damages in the
light of the agreement referred to above; and
was no room for an apportionment of damages which had not been
Makhethe, who appeared for respondents, submitted that, on the
evidence, the court a quo should have found that the killing was
justified on the ground of necessity. He accordingly submitted that
the appeal should be dismissed with costs.
clear that Peete J was not entitled to make an award of damages in
the light of the agreement between the parties which is
the judgment. Moreover, there was no scope for the application of the
Apportionment of Damages Act. Firstly, apportionment
was not pleaded.
Secondly, appellant was not in any way at fault in relation to the
killing of her son; accordingly if there was
any fault on the part of
the policemen, respondents would be liable for the full
whatever damages she has suffered.
made by the court a quo is a finding of liability on the part of the
policemen. Respondents did not cross-appeal against
that finding. It
was therefore not open to Mr Makhethe to argue that, on the reasoning
of the court a quo, the learned judge should
have found that no
liability had been established. Mr Makhethe was, in any event, not
entitled to attack the reasoning of the judge
a quo as he attempted
to do: there can be an appeal only against the substantive order made
by a court, not against the reasons
for judgment. See Administrator.
Cape and Another v Ntshwaqela and Others 1990(1) SA 705 (A) at 715
follows that as there was no cross-appeal against the finding of
liability, that finding stands, subject only to the deletion
reference to the apportionment.
appeal is upheld with costs. The orders made by the court a quo are
deleted and substituted with the following:
"Defendants are liable for the full amount of whatever damages
plaintiff succeeds in establishing."
matter is remitted to the court a quo for the purpose of determining
the quantum of plaintiff's damages.
at Maseru this day of October 2000.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
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