IN THE HIGH COURT OF LESOTHO
In the matter between:- CIV/T/168/2007
LIRA ‘MATLI PLAINTIFF
OFFICER COMMANDING MOHALE’S HOEK 1ST DEFENDANT
COMMISSIONER OF POLICE 2ND DEFENDANT
ATTORNERY GENERAL 3RD DEFENDANT
Delivered by the Honourable Madam Justice M. Mahase
On the 8TH September, 2011
Civil Procedure – Practice – Negligence by police – Damages - Liability of state for acts of servants.
This is an action in which the plaintiff is claiming damages from defendants for the value of his vehicle, as well as pecuniary business loss.
He claims damages in the sum of:
- M50,000.00 for value of that vehicle
- M84,000.00 for loss of money he would have been paid from the contract of hire of that vehicle.
- Costs of suit and
- Further and/or alternative relief.
Facts of this case are briefly that the plaintiff had hired out his vehicle, a Toyota hi-lux 4 x 4; a 1988 model; of registration numbers F1008, fawn in colour. The chassis and engine numbers are YN67-9004334 and 4Y0150342 respectively; to one Mr. Sehlabane of or who operated under the trade name of Draft Transport (PTY) LTD.
The particulars of this entity appear in exhibit “A” herein. This is a matter of common cause. Plaintiff was making or was paid the sum of M7,000.00 per month by the said Mr. Sehlabane. On the day in question the plaintiff’s vehicle was packed at the Mount Maloti Hotel in Mohale’s Hoek when it was stolen. The driver of that vehicle was Hlomelang Mohale who has since died.
At the time when it was stolen, this vehicle was on that official duty. The theft of it was immediately reported to the Mohale’s Hoek police by the said Hlomelang Mohale on the 8th February 1999, refer to exhibits C, D and E. These are reports in relation to this crime.
This vehicle was allegedly stolen on the 6th June 1997. In the report to the police, the police were also allegedly informed the direction to which that vehicle was seen travelling after it was so stolen. This was the Mafeteng direction.
This vehicle was never recovered until on an undisclosed date when the scrapped body part of that vehicle was found at Ha Makebe. Plaintiff alleges that, Police of Mohale’s Hoek failed, and or neglected to make a follow up by way of setting up road blocks along the Mafeteng or Mohale’s Hoek main south I road; in which case they would have been able to locate and recover the said vehicle and probably also arrest the person/people who had stolen it.
It is the plaintiff’s case that the said police who had a legal duty to act after this theft was reported to them; failed and or neglected to so act and hence they could not find his car before it was later found abandoned in the place alluded to above and completely scrapped.
The defendants deny the allegations of the plaintiff that they have in anyway been negligent and or that they failed to take appropriate action.
It is the plaintiff’s evidence that his vehicle was not recovered due to the negligence of the police officers to whom this theft was firstly reported. He testified that the said Mohale’s Hoek police failed to intercept that stolen vehicle because they failed to set up police road blocks immediately after they were informed of its whereabouts after it was stolen.
The defendants on the other hand say, in challenging the above evidence that they (police) had at all times been behind the recovering of this vehicle after they had received a report that it had been stolen.
I pause to observe at this point that the defendants had earlier, after being supplied with further particulars raised an exception to the plaintiff’s declaration. The exception was that:-
- The plaintiff had failed to make a necessary averment to the effect that the defendants had, (based on negligence) a legal duty to act, once when such a report of the theft of that vehicle was made and received by them- vide paragraph 1.1. page 16 of defendant’s plea.
- Plaintiff failed and or neglected to allege that the loss of business or pecuniary loss he allegedly suffered was as a result of a negligent act and or omission on the part of the defendants.
Subsequent to that exception being raised, the plaintiff successfully applied to amend his pleadings accordingly in order to include the above-shown averments – vide an order of this court, per my brother Justice Peete dated the 30th April 2007.
It is the plaintiff’s evidence that a report about the theft of his car was made immediately thereafter by his driver one Hlomelang Mohale to the Mohale’s Hoek police. He referred the Court in this regard to exhibit “C”. Exhibit “C” and “D” which are a wireless message in which one Sgt Molapo wrote and circulated to Dispol- Mafeteng as well as to all stations all the information regarding this alleged theft of the plaintiff’s vehicle. A full description of it including the time when it was stolen and the direction this car was seen being driven to has been given. Further on the police are requested or ordered to stop and arrest the occupants of that vehicle. Exhibit “D” is a continuation (for want of an appropriate words) of the said wireless message. It has been written by one Sgt Nkune. It is addressed to Regional (Commanders) south, CID and all stations.
In that exhibits “D”, particulars of this vehicle are given in more details. A common feature in these two exhibits is that it is shown thereat that the alleged theft of this vehicle was reported to the Mohale’s Hoek police on the 6/6/1997. The R.C.I. number is 23/06/97. The time when it was handed in is written as being 19.59 (exhibit C).
I pause to observe that if indeed the wireless (radio) message was made, as is shown on exhibits C and D; this in essence confirms the defendants’ allegation that the police took appropriate steps to report and circulate information about the theft of the plaintiff’s vehicle.
This accords with the evidence as contained in the statement of one Borotho Matsoso, a former head of the C.I.D and Deputy Commissioner of Police herein filed of record dated or filed in this Court on the 12th May 2009.
The plaintiff denies that the police took the necessary, urgent and appropriate steps to help him find or recover his car. He has testified before this Court; as well as stating in his statement that having received a message about this incident, he left his home at Khubetsoana-Nts’irele in Maseru at around 2 a.m for Mohale’s Hoek. He went to Mafeteng Police Charge Office where on making inquiries about whether the police thereat had received a report about the theft of his car, he was informed by a policeman he had found there that there was no such report received at that police station. He then formally made a report about that since he was assured then that no such report had been received thereat.
PW2, one Lilara Raphuthing testified in this regard (he has also filed a similar statement) that on the 6th June 1997, he was from Bloemfontein traveling to his home in Mohale’s Hoek. That he had entered into Lesotho through the Van Rooyen’s gate and so he had to go through the Mafeteng town.
That at around 8 p.m. and when he was about 5 kilometres from the Mafeteng town, he saw a number of vehicles which he described as being in a convoy. That among those vehicles, he saw and recognized the plaintiff’s vehicle of registration numbers F1008; which car he knew very well as belonging to the plaintiff. That he and plaintiff knew each other very well as plaintiff came from Mohale’s Hoek. That he learned about the theft of this car of plaintiff when he arrived at Mafeteng. He however did not say who informed him about this fact.
He told this Court that it was then that he realized that when he saw that vehicle shortly before he arrived in Mafeteng, it was being driven by someone who had stolen it.
He testified further that there was no or that he did not come across any road block set up by the police from the Van Rooyen’s gate into Mafeteng up to Mohale’s Hoek . The summary of the plaintiff’s evidence is therefore that the wireless (radio) message this Court has referred to above was never received or delivered by the Mohale’s Hoek police to Mafeteng police and or to all other police stations.
The defendants on the other hand say they did all they could and which was in their power to assist the plaintiff in this regard. In support of the above, the defendants filed exhibit “C and D” which this court has referred to above.
They also called DW2 Mr. Steve Makhetha; an ex-police officer. In brief his evidence is that following a radio message he heard while already out on duty using a police vehicle around the Mohale’s Hoek township; he got to know about the plaintiff’s stolen vehicle.
He says in particular that radio message was directed to Mafeteng police. That the radio message could be heard by all radio operators. He also corroborated defence witnesses’ evidence that a written wireless or radio message was sent to Mafeteng; as it is indeed shown in exhibit “C”.
Having heard that radio message, he then immediately also started looking for and or searching for that vehicle. He also solicited the assistance of the Quthing police in this regard. He says, it was already dark at that time, as such no road block was mounted in search of that vehicle that night. I pause to observe that the evidence of DW2 in this regard corroborates that of PW2.
There is no doubt that a wireless message, exhibit C was made addressed to dispol – Mafeteng and all stations – viz exhibit “C”. There is however no confirmation that this wireless message was actually received and acted upon by the Mafeteng police.
It is also a matter of common cause that the first ever report about this incident was made by the driver of this vehicle to the Mohale’s Hoek Police. This therefore means that it cannot be correct that the report about this incident was first made to the Mohale’s Hoek police on the 8th June 1997.
It is the plaintiff’s further evidence that he subsequently got to know the people who had allegedly stolen his vehicle. That he had this fact reported to the Mohale’s Hoek police immediately on receiving such information, but the Mohale’s Hoek police did nothing by way of following up on this information.
Plaintiff further testified that he also received information as to the place where his stolen vehicle had been hidden or kept by those who had allegedly stolen, it but even then the Mohale’s Hoek police took no steps to follow up on same so that they ultimately could not recover his vehicle until when it was found some many months later at Ha Makebe as alluded to above.
The plaintiff described in details how he ultimately found the people suspected to have stolen his vehicle. They were Nkabi Nkabi and one Mohlanka Mahase (No relation at all to this Court). It must be indicated that at some stage Nkabi was arrested in relation to this theft but the Mohale’s Hoek police ultimately had him released for lack of evidence indicating that he (Nkabi) had participated in the theft of the plaintiff’s vehicles.
In fact, to date no one has been charged for the theft of the plaintiff’s vehicle. Now, the question for determination by this Court is whether or not the defendants have been negligent? Should it be found that they were negligent; then obviously they should be held liable for the damages which the applicant has allegedly suffered as a result of their negligence; if not then that will be the end of the matter.
In other words, the plaintiff’s case is based on negligence on the part of the police. It has been indicated that the police deny that they have been negligent in anyway.
They deny having been negligent even though there is no indication as to exactly when this written wireless message was received by the Mafeteng police and the other “all stations” referred to in exhibit C.
However, DW2’s unchallenged evidence is that such a radio message was broadcast and or announced through the police radio. This has not been denied or challenged.
The scenario here is that aside from the written wireless message, there was a radio broadcast made by Mohale’s Hoek police about this incident.
This is radio/wireless broadcast which prompted DW2 to start looking for this vehicle. From this alone, one can safely come to a conclusion that Mohale’s Hoek police did take immediate steps to alert other police offices to look for and intercept this vehicle.
It is noted by this court that a proper reading of exhibit C reveals that the actual first report about this theft was made to Mohale’s Hoek police some two (2) hours after or since the actual time when this vehicle was allegedly stolen from where it was parked at the Mount Maluti Hotel. It is not clear from evidence adduced before this Court, why its driver did not report about this theft immediately. The question is why did he have to wait until the lapse of almost two hours before he went to report about its theft? It is not disputed that such a report was made to police some two hours since this vehicle was last seen parked at the said hotel.
There is also no evidence adduced by the plaintiff showing where the driver of that vehicle was at the time that it was stolen; neither is there any evidence indicating why or what prevented him from reporting about same on an earlier time.
It is the considered view of this Court that had the theft in question been reported earlier than 8 p.m. by the driver in question, the police could have probably succeeded to intercept it before it driven out of the Mafeteng district.
In fact according to the evidence of PW2, he saw this vehicle going out of Mafeteng district at or around 8 p.m. This is the time at which a report about this theft was being made for the very first time to the Mohale’s Hoek police.
A period of two hours that elapsed before the said driver made a report about this theft to the Mohale’s Hoek police, is more than enough time to have allowed or to have given the suspects time to take out this vehicle out of the police jurisdiction of the two districts of Mohale’s Hoek and Mafeteng.
It is further noted on the other hand that even after having learned about the theft of this vehicle, from an undisclosed source, PW2 did not report about the said vehicle to the police at Mafeteng in which case; the said vehicle could have probably been intercepted by the Maseru or Morija police.
It is further not PW2’s evidence that he reported to its owner (the plaintiff) even by telephone that he had seen that vehicle being driven towards Maseru, even though he said he had learned at that time that the said vehicle was being driven to Maseru out of Mafeteng, after being stolen.
This now brings me to the issue raised by the plaintiff in support of his case. It has been submitted in this regard among others that the police have a legal duty to maintain law and order, to protect life and property; and so on.
Reliance in support of this submission is based upon the following:-
- Section 147 (1) of the Constitution of Lesotho;
- Sections 4 and 24 of the Police Act No. 7 of 1998;
- Minister of Police v. Ewels 1975 (3) SA at 590 (A);
Where it was stated that (I quote)
“ The duty that rests with policeman to have come to the assistance of the respondent was a legal duty and it was failure which had taken place in the course of the policeman’s duty that the applicant was liable for the damages of the respondent”
It has therefore been submitted on behalf of the plaintiff at subparagraph 6.9. of the heads of argument that as a result of the omission through negligence by the police failing to act timeously upon being informed of the theft of the vehicle, and failing to follow the information and arrest the suspects, they are liable for the damages claimed by the plaintiff.
It is upon the basis of the above submissions that the plaintiff has prayed that judgment be granted in his favour as prayed in the summons. It has, on the other hand, among others been submitted on behalf of the defendants that:
- Firstly, the delay in the reporting of the theft of this vehicle.
- Secondly, the interruption by the plaintiff who had investigators changed from time to time, has resulted into the non-recovery of his vehicle
- Lastly, the plaintiff has failed to proof on a balance of probabilities that indeed, but for failure, negligence and the ineptitude on the part of the police, his vehicle would have been recovered.
It has been carefully noted by this court that:
- According to contents of exhibits C a report about the theft in question was made to Mohale’s Hoek some two hours after that vehicle was allegedly stolen from where it was parked at the Mount Maluti Hotel in Mohale’s Hoek.
- Wireless or radio messages were made through police radios directed to Mafeteng police as well as to all other stations.
- That DW2, indeed acted accordingly once when he received or when he heard over the police radio about this incident, by searching or looking for the vehicle in question.
- DW2, also equally alerted the Quthing police and requested their assistance in intercepting this vehicle; but all in vain.
- That there is no proof of any kind showing or confirming the value of the vehicle in question, nor the agreed contract of hire and its duration.
In the circumstances the alleged value of this vehicle to the tune of M50,000.00 (fifty thousand Maluti) has not been proofed. It is the considered view of this Court that even assuming without conceding that this is so, there is no proof of a contract, between plaintiff and Draft transport written or verbal such that this Court could say what the basis of the M84,000.00 is.
What we have in the form of exhibit “A” is a monthly cheque requisition for April 1997 only; which only indicates how much was paid to plaintiff on that month by draft transport.
This, with respect is not telling this Court the whole period for which that vehicle was contracted to work with Draft transport. In the premises, and taking into account the totality of evidence adduced herein, this Court has come to the conclusion that the plaintiff has failed to show or to proof on a balance of probabilities in which regard the defendants can be said to have been negligent, thereby having caused his economic loss in the way that is alleged or at all.
The fact, among others that the report about this theft was made by the very driver of this vehicle to the Mohale’s Hoek police, some two hours since the occurrence of that theft, lives a lot to be desired.
It has been argued further that according to the DPP’s entry in the investigation diary, to the effect that the police failed to follow the explanation of the suspects is enough to hold the defendants liable for plaintiff’s loss.
With the greatest respect, this Court is not persuaded that the above submission is correct, for the reason that this remark was made some two years since the occurrence of that incident.
This court has accordingly come to the conclusion that, yes the police had a legal duty to assist the plaintiff, but that in the instant case there is no proof that they have negligently or otherwise failed to discharge that duty. The contrary is true.
For the foregoing reasons, this action is dismissed with costs to the defendants.
For plaintiff - Mr. A.M. Chobokoane
For defendants - Mr. M. Sekati
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law