IN THE HIGH COURT OF LESOTHO
In the matter between;
TŠEPO MOHAPI ….......................................................................................................PLAINTIFF
SECURITY LESOTHO (PTY) LTD ….....................................................................DEFENDANT
DELIVERED BY THE HON. MRS JUSTICE K.J. GUNI
ON THE 8TH DAY OF JUNE 2011
The plaintiff in this matter – TŠEPO MOHAPI, was at the time when the events leading to this suit occurred, employed by RUMDEL CONSTRUCTION LESOTHO (PTY) LTD. Plaintiff was employed by RUMDEL CONSTRUCTION LESOTHO (PTY) LTD as a concrete mixer truck driver. RUMDEL CONSTRUCTION LESOTHO (PTY) LTD was working on site at MARAKABEI, where it had engaged SECURITY LESOTHO (PTY) LTD to provide security, safety and protection of its property. In April 2008, Sepiriti and other security guards employed by SECURITY LESOTHO (PTY) LTD, were posted to the site at MARAKABEI where RUMDEL CONSTRUCTION LESOTHO (PTY) LTD kept its property. The security guards were charged with the responsibility to secure the protection and safety of RUMDEL CONSTRUCTION LESOTHO (PTY) LTD’S property. There were already complaints that RUMDEL CONSTRUCTION (PTY) LTD’S property regularly disappears from that site through suspected acts of theft. It seemed the two companies’ employees, that is the SECURITY LESOTHO (PTY) LTD, and RUMDEL CONSTRUCTION LESOTHO (PTY) LTD colluded in their thefts of the property of RUMDEL CONSTRUCTION LESOTHO (PTY) LTD. New security guards were posted to this MARAKABEI site in order to stop those thefts and/or catch the thieves of the property of RUMDEL CONSTRUCTION LESOTHO (PTY) LTD.
Plaintiff a former employee of RUMDEL CONSTRUCTION LESOTHO (PTY) LTD, is suing SECURITY LESOTHO (PTY) LTD for payment of ninety thousands Maloti as damages for unlawful arrest, detention, assault, contumelia, defamation of character and loss of income.
Plaintiff claims, that he was unlawfully arrested around midnight on the 15thNOVEMBER 2008, by defendant’s subordinates – SECURITY LESOTHO GUARDS acting in their official capacity during the performance of their functions as employees of SECURITY LESOTHO (PTY) LTD. The plaintiff holds defendant - SECURITY LESOTHO (PTY) LTD vicariously liable for the damages caused to plaintiff by the defendant company’s security guards.
While in the alleged unlawful custody and detention of SECURITY LESOTHO (PTY) LTD’s GUARDS, plaintiff was assaulted, interrogated, strangled or choked by the said security guards. These unlawful acts were committed by the said guards throughout the night or what was left of that night as he was arrested in the middle of that night. Plaintiff was released the following day at the police station by the police because after he was arrested, he was handed over to the Police by SECURITY LESOTHO (PTY) LTD together with the stolen property – three drums of diesel.
The report was given by the SECURITY LESOTHO (PTY) LTD’S guards to the plaintiff’s employer - RUMDEL CONSTRUCTION LESOTHO (PTY) LTD immediately at the time of his arrest that same night – after catching this plaintiff committing the crime of theft . Plaintiff was immediately dismissed by his employer for that theft of diesel from their company concrete mixer truck.
Plaintiff claims the damages in the following manner:-
Payment in the sum of M30,000.00 (Thirty thousand Maloti) for unlawful arrest.
Payment in the sum of M30,000.00 (Thirty thousand Maloti) for assault pain and suffering,
Payment in the sum of M10,000 (Ten thousand Maloti) for damages to loss of income plus nominal damages,
Payment in the sum of M20,000 (Twenty thousand Maloti) for contumelia,
Cost of suit,
Further and/or alternative relief.
Plaintiff was lawfully arrested for theft of RUMDEL CONSTRUCTION LESOTHO (PTY) LTD’s property – diesel. Defendant denies that the plaintiff was assaulted, interrogated, strangled and/or chocked by its security guards.
The plaintiff sustained the injury on his forehead when he fell at the time he tried to escape from lawful custody.
Defendant denies the allegation that it caused plaintiff the loss of income by falsely accusing him of theft.
Defamation of character is also denied. All liability is denied by the defendant in all respects.
The arrest of the plaintiff by the security guards who are the employees of the defendant company – SECURITY LESOTHO (PTY) LTD, is admitted. The defendant company was specifically engaged by RUMDEL CONSTRUCTION LESOTHO (PTY) LTD especially, as the security specialist and provider of security services to secure the protection and safety of its property. It is also admitted that those security guards who arrested the plaintiff were acting for and on behalf of the defendant company and the owner of the property. They arrested the plaintiff during the performance of their duties and/or functions as employees of the defendant company which was charged with the security of the property of the plaintiff’s employer - RUMDEL CONSTRUCTION LESOTHO (PTY) LTD.
WAS THE ARREST LAWFUL OR UNLAWFUL?
It is the evidence of the defence witnesses that the arrest was lawful. In terms of the law of this Kingdom - CRIMINAL PROCEDURE AND EVIDENCE ACT 1981, PART V, SECTIONS 29 AND 30. The plaintiff was in fact caught red handed in the act of stealing the diesel belonging to his employer - RUMDEL CONSTRUCTION LESOTHO (PTY) LTD. According to the evidence led by the defendant from one of the security guards who took part in the arrest of the plaintiff, they trapped him. Plaintiff approached one of the guards and talked to him about working together with him to steal RUMDEL CONSTRUCTION LESOTHO (PTY) LTD’s property. This witness went to discuss this plan to steal with his colleague – another security who was on duty with him. Both of those security guards decided that they should arrest the plaintiff if and when he steals as he has indicated.
At midnight of the 15thNovember 2008, this plaintiff came to the motor vehicle – concrete mixer truck of which he was normally a driver. He was in possession of three items or containers which he used to contain the diesel which he tapped out of that concrete mixer truck. When he finished filling up the said containers the security guards of the defendant company approached and arrested him then and there.
It is the security guards’ duty to protect the property which they are engaged to guard. They are authorized to arrest anyone who is stealing or causing damage of any kind on the property under their guard. RUMDEL CONSTRUCTION LESOTHO (PTY) LTD was aware that its own employees steal its property in collusion with the SECURITY LESOTHO (PTY) LTD’s guards who are present on site at all times for the purpose of protecting the said property. This view, that RUMDEL employees steal from their employer right under the noses of the Security Guards of the defendant company because they are working together in collusion to steal the said property, was expressed by the manager of RUMDEL. DW1 – Sepiriti was one of those guards who have been recently transferred to that location or site at MARAKABEI for the purpose of ending the continuous stealing of RUMDEL’S property by its employees. According to the defendant’s witnesses, this arrest for theft of this plaintiff, was on his employer’s instructions. RUMDEL CONSTRUCTION LESOTHO (PTY) LTD is entitled to protect its property. The SECURITY LESOTHO (PTY) LTD acting on the instructions of and on behalf of the client – RUMDEL CONSTRUCTION LESOTHO (PTY) LTD was entitled to arrest the plaintiff at the time he was seen committing the crime of theft of its property.
According to the plaintiff he came to work at midnight so that he can be able to start work at normal time. He denies stealing diesel from the concrete mixer truck in question because he was found not guilty or he was discharged of the criminal charge. This is why he is now suing this security company.
After arrest he was detained. Report of his arrest was made to the supervisor of the security guards on that site. The supervisor in turn reported the matter to the RUMDEL CONSTRUCTION LESOTHO (PTY) LTD’s manager there. The plaintiff was taken to the Police Station in the morning. There he was perhaps charged by the police and released to come back next day so that he can be taken to court. That he did.
The next day the two security guards who made the arrest together with RUMDEL Manager, were also at the court. They were called into the office one by one. The guards gave the report of the arrest and the circumstances under which the arrest was effected. The plaintiff was called. He told this court that he was merely asked if he has any conflicts with the two security guards. His answer was in the affirmative. Where upon he was informed that that matter is over and he is discharged. It is for this reason that he feels he was unlawfully arrested because he was not convicted of the crime for which he was arrested.
It does not appear like there was ever a trial proper before the court of law. The reason why RUMDEL Manager was given the diesel back, perhaps by the prosecutor, is not known. But the guards testified before this court to the effect that the diesel contained in those drums was returned to RUMDEL Manager. The guards do not know why. That RUMDEL Manager was not called to testify before this court. It may be presumed that RUMDEL declined to prosecute for the reasons best known to them. By that time – two days after the arrest of the plaintiff by the SECURITY Guards, employed by SECURITY LESOTHO (PTY) LTD, the plaintiff was no longer employed. His services with RUMDEL CONSTRUCTION LESOTHO (PTY) LTD terminated on the 15thNovember 2008 – the date of the theft. RUMDEL CONSTRUCTION LESOTHO (PTY) LTD took an immediate action of dismissal of the plaintiff the same day he was arrested for theft of its property.
The conviction of the person who is placed before the court of law does not make the arrest lawful. The discharge or even the declination to prosecute the alleged criminal does not make the arrest unlawful. There is evidence that the plaintiff talked to one of the security guards to work with him in the stealing of his employer’s property. The security guards having been told by RUMDEL that their employees steal their property with the cooperation of the security guards, they did not want to cooperate with the plaintiff. They arrested him instead. They told this court that they arrested the plaintiff in accordance with the instructions of the official of RUMDEL CONSTRUCTION LESOTHO (PTY) LTD.
It is at the time the arrest is effected, which determines whether or not such an arrest is lawful or unlawful. At the time this plaintiff was arrested, he was committing a crime. He was tapping diesel out of the concrete mixer truck which he normally drives during the day when he is at work. He was not at work at midnight. He claims he wanted to take that concrete mixer truck to fetch his colleagues. Who? From Where? What for in the middle of the night? That cannot be correct. He was seen tapping diesel. He did not drive that motor vehicle anywhere. That arrest was therefore lawful. His claim for damages for unlawful arrest fails and it is dismissed.
For Brutal assault, interrogation, etc. There is no evidence that the plaintiff was assaulted. The security guards who made the arrest deny that allegation of assault. The medical form which shows that the plaintiff was examined by the Medical doctor on 2ndDecember 2008 indicates some bruises and abrasions on the thighs, wrists or cuffs. These are seen days after the date of alleged assault. Plaintiff gives no reasons for his failure to seek medical help and attention immediately! Say on the 16thor 17thNovember 2008. There is no evidence that the injuries which are shown on this medical form EXHIBIT 1 were seen on the plaintiff on the 15th, 16thand 17thwhen he was at the police station at Marakabei. It is probable there were not there. They occurred subsequent to that arrest. The suggestion made to him that he made those injuries himself in order to support this claim, sounds more plausible particularly because this plaintiff did not seek medical help immediately but waited and watched his nose bled for more than fourteen (14) days until the 2ndDecember 2008. That nose bleeding must have been just caused on that date. It was not by those guards.
The nose bleeding was left to go on from the 15th November until 2nd December 2008 when this medical form was filled by the Doctor who examined him on that day. When he was released to go home by the police on the 15th November 2008, the plaintiff did not go to seek medical help. Why? It may be accepted that at that time he did not need medical attention. His nose was not bleeding. He had no injuries that needed attention. When the plaintiff was told the case is over and that he is discharged, he did not go to see the doctor. In order to make out this claim he caused the nose bleed which was seen and recorded by the medical doctor on the 2nd of December 2008. This was more than two weeks of the alleged assault. The denial of the assault by the security guards must be correct. The claim for damages for the brutal assault, interrogation, strangulation choking etc must also fail. It is therefore dismissed.
LOSS OF EARNINGS – LOSS OF OPPORTUNITY FOR EMPLOYMENT
The plaintiff’s employer - RUMDEL CONSTRUCTION LESOTHO (PTY) LTD instantly dismissed him on the 15thNovember 2008 when it got the report of theft of its diesel by him. Plaintiff further claims damages for defamation of character. He claims that is in on record that he is a thief therefore whenever he seeks employment, this record shows up and he is never hired because he is now known as a thief. The person who was not found guilty by a court of law has no criminal record. Plaintiff is suing the defendant company because according to him he was not lawfully arrested for the simple reason that he was not convicted. He cannot therefore claim loss of opportunities for future employment on the basis of an alleged criminal record.
The plaintiff seemed to suggest that the construction companies pass information between themselves regarding perhaps quality or character of their employees. He spoke of record coming up that he steals wherever he seeks another opportunity to be employed. He blames this on the defendant company because he alleges he was falsely accused of theft by its employees. He was caught red handed in the act. He should blame no one but himself for that record, if it was a record. It was the duty of the security guard to catch the thief and make the report. This was not to defame the plaintiff’s character. It was the responsibility of the defendant company to act the way it did.
For the plaintiff’s dismissal without being hurt, he is barking at the wrong tree. It is not the defendant company which dismissed him. He was dismissed from his employment by his own employer - RUMDEL CONSTRUCTION LESOTHO (PTY) LTD. The letter of dismissal which was produced as part of evidence to prove that fact of his dismissal is from RUMDEL CONSTRUCTION LESOTHO (PTY) LTD. SECURITY LESOTHO (PTY) LTD was engaged by the plaintiff’s employer - RUMDEL CONSTRUCTION LESOTHO (PTY) LTD to prevent thefts of its property and to catch thieves where theft is committed. The defendant company was therefore doing its job by catching the thief. Whether the thief is prosecuted or not it is immaterial. Whether or not the thief is acquitted or convicted it is also immaterial. The point remains that SECURITY LESOTHO (PTY) LTD did its job. It committed no wrong against anyone including this plaintiff.
For these reasons this application must fail. It is therefore dismissed with costs.
For Plaintiff: Mr Molapo
For Defendant: Mr Mohapi
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