In the matter between:
THE ATTORNEY-GENERAL 1stDefendant
THE COMMISSIONER OF POLICE 2nd
This case arose from the acts of
the police officers who, acting within the scope of their employment
and during the cause of their
duty caused damage to the Plaintiffs
and their property on or about the 28th
days of December, 1994.
This case has been subjected to
so many postponements since 1996. Even the copies of the summons
filed of record are just too faint
that reading or going through them
demands some considerable amount of time. The reason for this being,
as I was told, that the
original papers were destroyed by fire in
1998 when the old High Court building was destroyed by fire.
Plaintiff has described herself as the wife of one Refiloe Petros
Motemekoane who was killed by the Police. She said the deceased,
husband died in police hands and in their custody. That the police
had detained the deceased within the scope and during the
their employment by the Lesotho Government. She further said, as a
result of the said death she lost her support and
that of her minor
children to their marriage estimated at M200,000.00 and M150,000.00
respectively. She has also claimed for damage
to their car, two
poodles, 12 chicken and medical expenses.
Plaintiff on the other hand as the elder sister of the deceased, who
is a divorcee and had returned to her maiden home and maintained
the deceased, is claiming for loss of support estimated at M50,000.00
and M600.00 for medical expenses.
In her declaration, the 2nd
Plaintiff has shown that on or about the 28th
December, 1994 she was at the home of the deceased watching a
television programme with other inmates when the police started
attacking their home. They sustained injuries and had to attend
medical treatment and thus incurred costs.
Both Plaintiffs have shown that
the Government of Lesotho has to be held vicariously responsible for
the actions of its police officers
as the employers of such police
The matter was placed before me
on the 13th
February, 2008 and was set for three days. Both Counsel appeared
before me and intimated that the issue of liability was not disputed
but quantum. Counsel for the Plaintiff even showed that the matter
was once placed before my brother Maqutu J (as he then was)
Court clearly showed that from his reading of the papers filed of
record the issue of liability would just be an academic
it seemed to be common cause. He felt that parties had to go
straight to the question of quantum.
Counsel for the Defendant was
also of the same view. He even showed that, though this case had
previously been handled by Mr Makhethe
and later Mr Putsoane, he was
aware of a minute by Mr Makhethe to the Commissioner of Police
proposing a settlement out of Court.
There was no response from the
The matter was stood down to the
next day. On the 14th
February 2008, Counsel approached the Court with what they thought
could be a settlement. Both Counsel had each consulted their
clients. The Plaintiffs were ready to settle for M400,000 for the
whole claim and M10,000 for costs. Counsel for Defendants had
consulted his clients who would offer M300,000 for damages and
M10,000.00 for costs. This offer came from the Deputy Commissioner
of Police who then said was unable to make a decision for anything
more in the absence of the Commissioner.
It was the Courts feeling
that if the Deputy Commissioner could make an offer for whatever
amount it meant he could make a decision
in the absence of the
Commissioner. But because the Parties could not agree on quantum
they were agreed that they would state
the facts which were common
cause and then argue on quantum.
The facts which were common
cause were that:-
The late Petros Motemekoane
(commonly referred to as Peters) had a house at Maseru, Sea Point.
The Police on the 28th
December, 1994 did during the course of their duty damage the house
belonging to the deceased at Sea Point.
The house had furniture in it.
There were also personal
belongings in that house for men, women and children.
A vehicle belonging to the
deceased was also damaged in the process.
Some of the occupants incurred
medical expenses as a result.
Some chicken and poodles were
also killed in the process.
The deceased, Petros
Motemekoane was killed whilst he was in police custody on the 29th
From the facts as stated, it was
revealed that the deceased Petros Motemekoane was not even in his
house as the police started firing
at the house in Sea Point on the
December, 1994. The police came to know about this after they had
already damaged the house. The deceased died after he had
surrendered himself to the police on the 29th
December, 1994. He went to the police offices accompanied by two
The police have claimed that as
they approached the deceaseds house with the aim of going to
arrest him, they were met with a
staccato of machine guns and a hail
of bullets from the deceased, and they returned fire. As they
learned later that the deceased
was not in the house, who were they
then trying to arrest? Who could have been firing at them if at all
there had been firing?
It would be clear from the above
that it could therefore not have been the issue of someone resisting
arrest. It was therefore
the Plaintiffs argument that the police had
only acted on the information they had received, but have been
negligent because they
did not verify as to whether the deceased was
in fact at home or not as they did not come chasing after the
deceased. It was only
fortunate that no one was killed in those
Coming back to the issue of the
damaged house, the Defendants were saying that, the amount claimed
would be for building a new house
when in fact the house was not
As already stated, the 2nd
Plaintiff has also claimed for loss of support and medical expenses.
It was not disputed that she was one of the inmates in deceaseds
house when the place was attacked by police. So that she too must
have sustained some injuries and had to seek medical attention.
Plaintiff claimed to be the deceaseds sister who had returned to
her maiden home after her divorce and was being maintained
late Petros. The Defendants have denied knowledge of those
allegations in their plea and have shown that in the absence
proof of such facts they were not able to admit the same.
There must have been proof of
the relationship of 2nd
Plaintiff to the deceased, Petros. Also proof that she was once
married and later divorced. We have also not been told as to
Plaintiff is and why she had to be maintained by the deceased,
Petros. One can be a divorcee but still be able to work and maintain
herself. We have not been told as to whether she had to be so
maintained due to old age, ill health or any other disability.
For the foregoing reasons,
judgment is given for the 1st
Plaintiff in the following amounts:-
1. Damage to the
House - R100,000.00
2. Loss of
Support - R200,000.00
3. Damage to Household
Property - R 50,000.00
4. Personal Belongings - R
5. Damage to the Vehicle - R
The total amount awarded has
come to M375,000.00 with costs.
For the 2nd
Plaintiff judgment is given in the amount of M600.00 for medical
expenses with costs.
I have not awarded any damages
for the two poodles and the twelve chicken as it had not been clear
as to how they came to be affected.
The Defendants are given a
period of three months from the date of this judgment within which to
effect payment in this matter.
A. M. HLAJOANE
For Plaintiffs: Mr Mosito
For Defendants: Mr Letsie
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
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Commonwealth Countries' Law
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