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 5^th
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 6^th
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:

1. 
   M
   300, 000.00 general damages

   
   

2. 
   Interest
   at 18% p.a. a temporae morae

   
   

3. 
   Cost
   of suit

   
   

4. 
   Any
   further and/or alternative relief

   
   

[4]
It should be noted from the onset that the Defendant’s Counsel, Mr.
Putsoane, conceded that it was common cause that the Plaintiff’s

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 6^th
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.P’s 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 Plaitiff’s 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 27^th
March 1993 to the 31^st
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 employee’s
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 employer’s point of
view, the
greater the deviation the less justification there can be for holding
him or her liable.”

[15]
In Chabeli’s
case (supra) the Appellant’s 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 deceased’s 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 deceased’s 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 employer’s 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 wife’s 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 employer’s 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 Chabeli’s
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:

1. 
   Plaintiff’s
   claim is dismissed.

   
   

2. 
   Each
   party to bear his own costs.

   
   

________________

T.
E. Monapathi

Judge

For
Plaintiff : Mr. Fosa

For
Defendant : Mr. Putsoane

Judgement
noted by Adv. Maholela