CIV/APN/03/2006
(CC: 1690/05)

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:

TSABALIRA
MAKATA APPLICANT

AND

THE
COMMISSIONER OF POLICE 1st RESPONDENT

ATTORNEY
GENERAL 2nd RESPONDANT

JUDGEMENT

Delivered
by the Honourable Mr. Justice T. E. Monapathi

On the
23rd April, 2007

In this
appeal from the Magistrate Court of Maseru, the learned Magistrate
concludes as follows and this almost accurately captures
the nature
of what this appeal is about. It is as follows:

"It is true, as Mr Mokhehle pointed out, that a person may be
sued at the forum where he has a place of residence and or where
he
holds a permanent job. However, as far as this proceedings

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are concerned the maxim fails. The Respondents herein are
representatives of the State. The Applicant ha cited them in their
official
capacities and not in their personal capacities. The State
has apparatus everywhere to enable a smooth and efficient running of

its affairs. It would be very absurd and may lead to a backlog of
cases if litigants, when so desiring, would decide to institute

proceedings in the Magistrate Court for Maseru district even in
situations where the causes of action have arisen elsewhere other

than the district of Maseru, merely because this is where the
official representatives of the State are resident or that they hold

their permanent jobs herein. It should be clear that which is being
sued is the state and not the cited Respondents. They merely

represent the state."

As it is
clear and apparent, the court a quo found it had no jurisdiction to
entertain the matter wherein the Commissioner

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of Police
and the Attorney General, both whose headquarters are ordinarily in
Maseru, within the jurisdiction of the court a quo,
are being sued
for acts that arose outside the jurisdiction of the subordinate court
of Maseru.

As both
counsel agreed, the other matter for determination by the court is
the fact that the court a quo "correctly" dealt
with the
provision of section 16 (a) of the Subordinate Courts Act 9 of 1988
(as amended). The result of this was that the court
may have erred in
its ruling or rather in its interpretation of this rule in the total
circumstances of the case. For clarity,
the same section 16 (a),
reads as follows:

"save any other jurisdiction assigned to any court by this [Act]
or by any other law, the persons in respect of whom the court
shall
have jurisdiction shall be:

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a) Any person who resides, carries on business, or is employed within
the district." (My emphasis).

By saying
that the meaning of the above was correct, it was not intended to say
that the parties agreed about the interpretation
or conclusion sought
to be arrived at.

Counsel
referred me to the cases of Ex. parte Minister of Native Affairs 1941
AD 53 at 58, Minister of Law and another v Peterson
1984 (2) SA 730.

The
following common law rule also came up for application by the
Appellant: actio sequitur forum rei.

The
application before the court a quo was for the following order:
Extending the period within which to institute an action against
the
Respondents; granting Applicant leave to institute his action within
three months from the date such leave is granted; directing
the
Respondents herein to pay costs

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hereof
only in the event of opposition and grating further and or
alternative relief.

The
Applicant herein in the background alleged that he was wrongly and
unlawfully arrested and detained by the Bokong police officers
of the
First Respondent. This police station is in the district of Leribe.
He said furthermore that he had had no money therefore
he could not
institute an action within time hence the application for extension
of the period as claimed above. The Respondents
herein profess not to
oppose this application but "raised a point of law to the effect
that this Honourable court has no jurisdiction
over this matter since
the course of action arose in another district."

To be
noted further is that, while the application is made in the district
of Maseru, the cause of action is in the district of
Leribe. To be
noted furthermore, is that the distinction is not being made between
the application for extension and the filling
of the actual claim
itself. May be for my decision this distinction is not relevant. So
that the issue for determination

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by this
court although posed as to whether the Maseru Magistrate Court had
jurisdiction to entertain the matter whose cause of action
arose in
Leribe, is the question whether the Defendants/Respondents "resides,
carries on business/is employed within the district."
As it
turned out, the Respondent had replied that the court (of Maseru)
ought to dismiss the application from its jurisdiction
for it to be
instituted in a proper jurisdiction (of Leribe).

The
appellant's Counsel, Mr. Mokhehle submitted that the Respondents in
their official capacity are employed and ordinarily resident
within
the jurisdiction of the Magistrate court of Maseru in this matter.
The common law rule actor sequitur forum rei (that the
Plaintiff
ascertain where the Defendant resides and goes as his forum and to
sue there) is applicable also gives Plaintiff the
right to ascertain
place of residence of the Defendant and then sue the Defendant at his
place of residence. He referred in this
regard to Ex parte Minister
of Native Affairs (supra) pages 56 - 58. Consequently as counsel
submitted there is no merit in the

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argument
that the matter be instituted in Leribe Magistrate court by virtue of
the fact that the matter arose in the district of
Leribe.

With
respect to the identity of the first respondent Miss Ntsene submitted
that, one of the points to be considered is that, the
Officer
Commanding in the district of Leribe under the first Respondent would
ordinarily be sued not the first Respondent. I instantly
disagreed
because although officers commanding districts are managers and
agents of and under first Respondent and legally speaking,
it is the
first Respondent who has control and ultimate responsibility. I
therefore could not take this as a point to consider.

For my
purposes, I have to decide the question whether the application for
extension on the one hand, and the actual institution
of the claim
for damages on the other hand are so indivisible that if it is
correct, that the claim ought to be filed in Leribe
Magistrate Court.
Yes, they are indivisible. Therefore the court a quo was correct to
refuse the application.

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The
appeal fails. Costs are awarded to Respondents.

T.
Monapathi

Judge

For
Appellant : Adv. Mokhehle

For
Respondents : Adv. M. Ntsene