19
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/325/98
In the matter between:
LEAOOA SEOANE PLAINTIFF
And
ATTORNEY GENERAL DEFENDANT
JUDGEMENT
Delivered by The Honourable Mr. Justice T. E. Monapathi on the 5th Day of March 2009
Delict vicarious liability principle whether Government is vicariously liable for unlawful arrest, detention and assault of the Plaintiff by N.S.S. junior officers vicarious liability not established by the facts unlawful acts committed by N.S.S. junior officers pro hac vice placed them outside the category of employees acting in the course and scope of their employment matter dismissed with costs.
INTRODUCTION
[1] The Plaintiff, a Mosotho man of about 58, was at all material times a Major General of the National Security Services of Lesotho
(hereinafter called the N.S.S.). This and most facts are common cause. It is a sordid and mostly uncontested story which follows:
[2] It is alleged that on the 6th March 1995, the Plaintiff was unlawfully hijacked, kidnapped, and locked in the N.S.S. cells for twenty (20) days, during which time he was unlawfully assaulted, insulted and threatened with death. It was consequent upon the alleged incidents that the Plaintiff says he suffered and developed very bad mental relapses and serious nervous tension.
[3] It is against this backdrop that the Plaintiff issued summons against the defendant claiming damages as follows:
M 300, 000.00 general damages
Interest at 18% p.a. a temporae morae
Cost of suit
Any further and/or alternative relief
[4] It should be noted from the onset that the Defendants Counsel, Mr. Putsoane, conceded that it was common cause that the Plaintiffs
arrest, detention and assault were unlawful. He therefore asked this Court to decide the question of liability first, and then the issue of quantum would be dealt with separately in the event that the Defendant is found liable. It should be emphasized that the Defendant emphatically denies liability for damages suffered by the Plaintiff. This will be seen later in the judgment.
[5] Whilst this Court appreciates the approach propounded by Mr. Putsoane, as it offers a condensed factual base, I find it prudent to recount the brief facts of this case. It was in the morning hours of the 6th March 1995 when the Plaintiff was ferrying his three children to different places; two were going to school while the other was going to work. He testified that whilst he was still busy driving, he realized that he was being ambushed by some people whom he identified to be N.S.S. members (his subordinates). He claimed that the number of his assailants was around six and were all gentlemen. Among the said assailants he recalled one Lerotholi, Nchai and Cheoane. He gave evidence that his assailants finally caught up with him and stopped him, and forced him out of his vehicle.
[6] The Plaintiff indicated that one Nchai was carrying a big gun similar to the Police SLR (Self-loading rifle). He alleged that after he was forced out of his vehicle, his assailants then tied him up and tried to force him in the car boot but he resisted. He said one of his captors however pleaded with his companions not to put him in the car boot. It was not clear as to who might have uttered those words. His captors then changed their minds and pushed him into their vehicle which was driven by one Mokopanela. The other people, the Plaintiff remembered, who were in the car were Fobo and Lerotholi. That car then sped off in the direction of Maseru town. All these facts are not disputed.
[7] The car in question was then driven to Teyateyaneng (T.Y.) road before arriving at Ha-Mabote Police post. Plaintiff testified that the car went to Phuthiatsana River and later to Caledon River, where they reached the river bank; he was still tied at all material times. The purpose of those errands was not clear. Plaintiff later realized that he was at Police Headquarters. He was then taken to the Police cell where he was searched, his one hundred Maloti (M 100.00) was taken together with his watch. Among people who were present during that time he remembered one Mokopanela and Lerotholi who were ordinary detectives as well as Nchai and Ralecheoane who were above the rank of the other two. It was not disputed that the Plaintiff was kept in a cell for about five hours that day.
[8] Whilst still in custody, the Plaintiff was interrogated by Mokopanela, Lerotholi and Ralecheoane using a video machine. The
Plaintiff was questioned amongst others about intransigency of the Government to reinstate the King; his involvement in the army
conflict; his role in the B.C.Ps rigging of elections. He was also being insulted in the process, it was claimed.
[9] It was not controverted that the Plaintiff was not allowed to be seen by visitors not even the members of his family, during his detention. He was also not afforded healthy food and he was locked up for twenty consecutive days, being bitten by mosquitoes amongst others.
[10] The plaintiff testified that all his captors wanted were to force him to resign his post as head of the N.S.S. The other senior officers had already been suspended namely, Colonel Thaha, Lieutenant Tumane and Major Putsoane. This is not denied.
[11] Those were the brief facts of this case. In light of all that happened, the Plaintiff contended that he suffered and developed very bad mental relapses and serious nervous tension hence brought this claim requesting damages holding Government vicariously liable for the damage he suffered.
[12] The Defendant whilst not denying that the Plaintiff was unlawfully arrested and detained, denies liability on the basis that those N.S.S. junior officers were on a frolic of their own when committing the alleged acts. This appeared on the evidence of DW 1, Lelimo Mohasoa, who was the Plaitiffs deputy at all material times, where he stated that those N.S.S. junior officers were out of control when committing the alleged acts, and that they were against the N.S.S. management in their actions. DW 1 said he was not aware of any authority by any superior who could have authorized the alleged unlawful acts. DW 1 further testified that the said N.S.S. junior officers had rebelled against the N.S.S. management and that they were wild in their actions.
[13] It is common cause that neither disciplinary nor criminal actions were pursued against the alleged N.S.S. perpetrators. It appeared that the Pardons Act N0. 7 of 1996 (the Act) was passed which granted immunity from prosecution for acts committed in furtherance of political objectives between the periods of the 27th March 1993 to the 31st December 1995. The said immunity covered members of the disciplined Forces, the Police, the N.S.S., the Prison Service, the former
Lesotho Liberation Army as well as any other group that pursued a political objective. It is fitting at this juncture to note that the impact and repercussions that the Act might have had on the rights of the aggrieved parties who wished to pursue a legal action against perpetrators themselves or even against the Government (as in this case), would be considered in an event where vicarious liability is successfully established or is found to exist.
[14] The decision of Court of Appeal of Lesotho in Mosa Chabeli v. The Commissioner of Police & another C of a (CIV) No.28 of 2004, succinctly captures the law governing liability of Master for acts of his servants. In that case the
learned Judge of Appeal, Ramodibedi JA had this to say at p.12-13:
Now, it is a well-settled principle, which hardly requires authority, that an employer will be vicariously liable for the delict of an employee if the delict is committed by such employee in the course and scope of his or her employment. It require to be stressed at the outset that whether or not an employee has acted in the course and scope of his employment is a question of fact to be determined on the facts of each individual case. In some cases the evidence will be clear-cut as going to show that the delict of an employee was committed in the course and scope of his or her employment or that it was committed outside the course and scope of such employees employment as the case may be. In other cases, however, the evidence will not be so clear-cut. This is more so in cases commonly referred to as deviation cases. Over the years, the courts have devised a standard test by which employees acts of deviation are tested to determine whether delicts committed by them fall outside the course and scope of their employment. In this regard, the remarks of Scott JA in the recent decision of the Supreme Court of Appeal of South Africa in Natasha Kern v. The Minister of Safety and Security case No. 456/03 (unreported) appear to me to be singularly apposite. The learned Judge of Appeal said this: where there is deviation the inquiry, in short, is whether the deviation was of such a degree that it can be said that in doing what he or she did the employee was still exercising the functions to which he or she was appointed or was still carrying out some instruction of his or her employer. If the answer is yes, the employer will be liable no matter how badly or dishonestly or negligently those functions or instructions were being exercised by the employee. (see eg. Feldman (pty) Ltd v. Mall 1945 AD 733 at 774; Viljoen v. Smith 1997 (1) SA 309 (A) 315 D 317A; Minister of Safety and Services v. Jordaan t/a Andre Jordaan
Transport 2000 (4) SA 21 (SCA) para 5 and more recently van Veiligheid en Sekuriteit v. Japmoco BK h/a Status Motors 2002 (5) SA
649 (SCA) paras 11-16 and Minister van Veiligheid en Sekuriteit v. Phoebus Appollo Aviation BK 2002 (5) SA 475 (SCA) paras 8-18).
Notwithstanding the difficult questions of fact that frequently arise in the application of the test, it has been recognized by this court as serving to maintain a balance between imputing liability without fault (which runs counter to general legal principles) and the need to make amends to an injured person who might otherwise not be recompensed. From the innocent employers point of view, the greater the deviation the less justification there can be for holding him or her liable.
[15] In Chabelis case (supra) the Appellants father (a Major in the Royal Lesotho Mounted Police) was shot and killed by his colleagues at Maseru
Central Charge office. The Appellant then claimed damages holding government vicariously liable for the death of his father. In
dismissing the appeal the Court of Appeal said:
In my view, the evidence in the instant matter admits of no doubt that members of Codesa including the deceaseds killers were engaged in mutiny, inconsistent with the scope or course of their employment In my judgment, once this conclusion is reached, it follows that the Crown cannot be held vicariously liable for the unlawful and criminal acts of the deceaseds killers. To so would, in my opinion, amount to unduly imposing absolute liability on the Crown in circumstances where the delict of its servants clearly fall outside the course and scope of their employment or are inconsistent with their duties.
[16] Coming to the present matter, the issue therefore is to determine whether by committing the alleged unlawful acts of kidnapping,
assaulting, and unlawfully detaining the Plaintiff, the N.S.S. junior officers were still acting within the scope and course of their employment or whether their acts bore any nexus to what they were employed to do. It would be observed that this matter falls squarely within the so-called deviation cases. It cannot be doubted that by kidnapping, assaulting, unlawfully detaining and asking the Plaintiff to resign, amongst others, those N.S.S. junior officers were not furthering their employers interests. They were supposed to be the guardians of national security, the duty statutorily imposed and which flowed directly from the very nature of their work. On the contrary, they appeared to be a threat to the very same duty through their actions. Can we in all fairness say they were acting within the scope and course of their employment? I fear not.
[17] The Plaintiff himself testified that he initially entertained the same apprehension that those N.S.S. junior officers were on a frolic of their own when they committed the alleged unlawful acts, but quickly rejected the idea when he realized that government vehicles and cells were used in perpetrating the said unlawful acts. Mr. Putsoane, for the Defendant, correctly submitted that, whilst admitting that government property was used, that factor alone cannot be treated in isolation in holding the government vicariously liable. He added that the said use of government property was not even sanctioned by the relevant authorities as the perpetrators were out of control.
[18] The obiter dictum of the Supreme Court of Canada in Bazley v. Curry (1999) 2 S.C.R. 534 at para 35 appear logically irresistible in addressing the above point:
Servants may commit acts, even on working premises and during working hours, which are so unconnected with the employment that it would seem unreasonable to fix an employer with the responsibility for them. For example, if a man assaults his wifes lover (who coincidentally happens to be a co-worker) in the employees lounge at work, few would argue that the employer should be held responsible. Similarly, an employer would not be liable for the harm caused by a security guard who decides to commit arson for his or her own amusement.
19] The court continued and said:
The mere fact that the wrong occurred during working hours or on the jobsite may not, standing alone, be of much importance; the
assessment of material increase in risk cannot be solved by the mechanical application of spatial and temporal factors.
[20] It would really be absurd to impose liability on the employer solely on the basis that though his employees unlawful acts did not have any connection to what they were employed to do, he would be liable if his property was used in committing the said acts. To do so would be tantamount to burdening the employer with absolute liability for acts which he would otherwise not be liable, and that would open unnecessary floodgates for unscrupulous employees to commit unlawful acts unconnected with their duties, with impunity hiding under the cloak of use of employers property. The evidence that the N.S.S. junior officers were out of control when committing all the alleged unlawful acts was not controverted.
[21] Applying the test enunciated in Chabelis case, the inquiry now is whether in kidnapping, assaulting and unlawfully detaining the Plaintiff, forcing him to resign his post as N.S.S. Major General, it can be said that those N.S.S. junior officers were still exercising the functions to which they were
appointed? Put differently, since this is a clear-cut deviation case as it is shown above, whether the said deviation was of such a degree that it can be said that they were still carrying out some instruction of the employer. It is trite that the employer would be liable if the answer is in the affirmative no matter how badly or dishonestly or negligently those functions or instructions were being exercised by the employee.
[22] On the facts of this case the compelling logic and irresistible conclusion that one can reach, is that the unlawful acts committed by the N.S.S. junior officers pro hac vice placed them far outside the category of employees acting within the scope and course of their employment as public officers entrusted
with the protection of national security. There is not even a slightest shred of evidence indicating that they might have been
performing their duty though they performed it negligently. They were, as it is commonly referred, on a frolic of their own.
Once this finding is made it follows that the employer would not be liable for the damage suffered by the Plaintiff and the claim ought to be dismissed. Costs would normally follow the event but because of the unique circumstances of this case I would award no costs. I cannot ignore that, despite all, the Plaintiff has been humiliated, ruthlessly and cruelly dealt with without apparent good cause or justification.
[23] The following Order is made:
Plaintiffs claim is dismissed.
Each party to bear his own costs.
________________
T. E. Monapathi
Judge
For Plaintiff : Mr. Fosa
For Defendant : Mr. Putsoane
Judgement noted by Adv. Maholela