CIV/T/70/81
IN THE HIGH COURT OF LESOTHO
In the matter of :
ALICE 'MATEBOHO MAHASE   Plaintiff
v

JUDGMENT.
Delivered by the Hon. Mr. Justice I. Isaacs
on the 4th day of May. 1981.
This is an exception to a declaration in which the
plaintiff claims damages from the defendants one of whom is
the Government of this country. It is alleged in paragraph
4 of the declaration that on or about the 26th day of March,
1979 and at or near Mapoteng in the district of Berea-Lesotho,
the deceased was arrested and taken into custody by members
of Lesotho Mounted Police who were acting in the said capacity
within the course and scope of their duty as policemen.
The declaration states further that whilst in custody
around the 26th day of March, 1979 the third defendant
wrongfully and unlawfully shot the deceased with the 9 mm
service pistol, once in the chest end twice in the head as
the result of which the deceased died. It is stated that at
all material times hereto the third defendant was acting as
a servant and employee of Lesotho Government represented by
the second defendant and was acting in the course and scope
of his employment and duty as an employee. The second
defendant is the Prime Minister and the first defendant is
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the Solicitor General.
It is stated in paragraph five of the declaration that
the deceased was under the legal duty to support plaintiff
and her children and that by reason of the death they have
lost the support, and that they have suffered damages in
the sum of M60,000.00 for the plaintiff herself and M30,000.00
for the children.
The plea of first and second defendants states:-
A.D. paragraph 4 of the declaration, save to admit that the
third defendant was an employee of Lesotho Government, the
first and second defendants deny that they are responsible
for the acts of third defendant committed on the 26th day of
March, 1979 they aver that in effecting the arrest of the
deceased, the third defendant was executing his statutory
duty and they had no power to control him or to interfere with
him in the performance thereof. The third defendant is
alleged to have shot the deceased.
The exception states that the first and second
defendants pleas at paragraph four having regard to admitted
facts discloses no defence in as much as the employer is
vicariously liable for the wrongs and delicts submitted by
an employee in the performance of his duty. Therefore the
plaintiff claims that the first and second defendants' plea
to be dismissed with costs.
I might say the plea denies, A.D. paragraph five of the
declaration which claimed an amount as damages that save
to admit that during his lifetime the deceased was under a
legal duty to maintain and support the plaintiff and two
minor children, the first and second defendants have no
knowledge of the allegations therein, do not admit them and
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and put the plaintiff to the proof thereof; and they deny
they are liable to compensate the plaintiff. When the damages
are not admitted, the damages must be proved, therefore the
plea does disclose a defence, even though paragraph two of
the plea which is to paragraph four of the declaration does
not plead issuably to the paragraph.
The proper procedure in my opinion for the plaintiff
to have taken would have been an application to strike out
paragraph two of the plea. It is sometimes difficult to draw
-the distinction between an exception and an application to
strike out; normally the difference is, if an exception will
destroy the whole defence then exception is a proper procedure
but if an exception does not destroy the whole defence but
merely destroys a paragraph then the proper procedure is an
application to strike out, and the procedure taken by the
plaintiff was not correct. I think the proper order for me
to make was that the exception is dismissed, but as the
plea does not plead issuably to the declaration, in my
opinion leave should be granted to the plaintiff to amend its
plea, and I think the proper order would be that each party
should pay its own costs.
ACTING JUDGE
4th day of May, 1981.
For Plaintiff -Mr. W.C.M. Maqutu
For Defendants -Mr. S.S. Mafisa.