CXV/T/45/05

IN THE
HIGH COURT OF LESOTHO

In the
matter between;

LEHLOHONOLO
SAULI APPLICANT

THE
COMMISSIONER OF POLICE DEFENDANTS

ATTORNEY
GENERAL

JUDGMENT

DELIVERED
BY THE HON. MRS JUSTICE K.J, GUNI ON THE 15th JUNE, 2007

The
plaintiff in this matter - LEHLOHONOLO SAULI is suing the
Commissioner of Police and the Attorney General for the payment of

M90,000.00 in respect of assault, pain, shock and suffering plus
interest at the rate of 18.25% together with the costs of suit

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It is the
plaintiffs case that on the 27th March 2004 at MATELILE in the
district of MAFETENG officers assaulted the plaintiff by
hitting him
with sticks, and whips all over the body. It is further alleged that
at all the material time the said officers were
acting within the
course and scope of their employment

The
defendants have excepted the plaintiffs declaration on the ground
that there is an omission in the said declaration of an essential

allegation, that the demand was made in writing to the Attorney
General, in terms of SECTION 4 OF THE GOVERNMENT PROCEEDINGS AND

CONTRACTS ACT NO. 4 OF 1965. This statute provides the specific time
and manner of approach to the court of law for a relief against
the
government, its institutions and agencies. It reads as follows:-"NO
action shall be instituted by Way of Summons by the
virtue of the
provision of section two of this Act until the expiration of one
month next after notice in writing has been delivered
to or left at
the office of the Principal Legal Adviser, stating the cause of
action, the name, description and place of residence
of the plaintiff
and the relief which he claims and the delivery of such notice shall
be a necessary allegation in the plaintiff's
Summons or declaration".

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In terms
of this SECTION there are few things which the plaintiff must perform
and/or satisfy in order to succeed in an action against
the
government, its institutions and/or agencies. First of all, the
written notice must be delivered to or be left at the office
of the
Attorney General. Secondly, in that said notice, the plaintiff must
state the cause of action, his or her name, description
and place of
residence and the relief which he or she claims. Thirdly, after the
delivery of the said notice of action has been
made to the office of
the Attorney General a period of one month must lapse before the
summons are issued against the government
or its agencies in respect
of that same intended action. These are the specific requirements
which the party suing the government
must fulfill in order to issue
out summons against the government Once these requirements have been
satisfied, then the party wishing
to sue the government may issue out
the summons against the government.

The
summons issued out against his Majesty's government must allege that
the required notice to the Attorney General has been delivered.
The
plaintiffs summons and declaration in the present case, are
exceptable on the ground that none of these requirements have been

met by the plaintiff. In these circumstances the exception is well
taken and must succeed. AARON V TIKOE K MATSOSO and Others
CIV/T/213/98.

The
attorney for the plaintiff, Mr. Mahlakeng argues that this statute
does not apply in this matter. He goes on to say that the
statute
that applies here is the POLICE SERVICE ACT NO. 7 OF 1998. Mr.
Mahlakeng does not refer this court to any authority to
support his
claim that the GOVERNMENT PROCEEDINGS AND CONTRACTS ACT NO. 4 OF 1965
does not apply to this Government Agency or institution.

Mr.
Mahlakeng argues that the claim for liability against the
Commissioner of Police, is based on the wrongfill acts of the police

officers in terms of SECTION 76 and 77 of ACT NO. 7 of 1998. The
sections relied upon by Mr. Mahlakeng provides as follows:-

"76 (1) The Commissioner shall be liable in civil proceedings in
respect of the wrongful acts of the police officers under
his/her
Command, in the performance or purported performance of their
functions, and accordingly may be joined in proceedings in
respect of
such wrongdoing".

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77 Any civil action against the crown or persons acting in pursuance
of this Act or the regulations made thereunder, 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
commencement of the said action "

There is
no authority which Mr. Mahlakeng pointed out to this court to show
that the GOVERNMENT PROCEEDINGS AND CONTRACTS ACT NO.
4 OF 1965 does
not apply in respect of His Majesty's GOVERNMENT POLICE SERVICE.
There is so specific provision in the POLICE SERVICE
ACT NO. 7 OF
1998 referred to by him which abolishes the GOVERNMENT PROCEEDINGS
AND CONTRACTS ACT NO. 4 OF 1965, in relation to
the Police Service
Mr. Mahlakeng does not even claim that it is abolished in respect of
His Majesty's Government Police Service
by the necessary implication.

Section
76 of POLICE SERVICE ACT NO. 7 OF 1998 provides for liability for
wrongful acts of the police officers. Section 77 deals
with
limitations of actions. Mr. Mahlakeng does not argue that the
plaintiffs action is instituted in accordance with anyone of

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these
provisions in {Sections 76 and 77 of POLICE SERVICE ACT NO. 7 OF
1998].

It is
obvious why Mr, Mahlakeng does not argue that the action was
instituted in accordance with any specific statutory provisions.
The
POLICE SERVICE ACT NO. 7 OF 1998, in those sections which Mr.
Mahlakeng claims are applicable, set out almost the same requirements

as the Government Proceedings and Contracts ACT NO. 4 of 1965 which
the plaintiff is obliged to meet before and during the institution
of
an action against the Police Commissioner. The plaintiff having
failed to satisfy any of those requirements which are set out
in the
relevant sections - |76 and 77 of POLICE SERVICE ACT NO. 7 1998] have
rendered the summons and declaration exceptablie.

There is
no allegation in the declaration that the demand was made to the
defendant in writing and that such a demand was duly delivered
to the
defendant (SECTION 77 OF POLICE SERVICE ACT). In the declaration it
is alleged that assault for which this claim is based,
took place on
the 27th March, 2004 and the summons were filed on the 1st JANUARY
2005. There is limitation of six months within
which such action must
be

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instituted.
This limitations was ignored by the plaintiff. MOKHELE AND OTHERS V
ATTORNEY GENERAL.

The
exception succeed with costs.

K.J. GUMI

JUDGE

Mr.
MahSakeng - for Plaintiff

Mr.
Mapetla - for Defendants

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