Shabangu v Commissioner of Police and Another (CIV/T 396 of 90) [2000] LSCA 76 (14 June 2000)

CIV/T/396/90 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- C E C I L IA S H A B A N GU P L A I N T I FF and C O M M I S S I O N ER OF P O L I CE A T T O R N EY G E N E R AL 1st 2nd D E F E N D A NT D E F E N D A NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le Mr Justice S . N. P e e te on t he 14th J u ne 2 0 00 In this c a se the plaintiff c l a i ms a total s um of M 6 6 , 7 5 8 . 00 f r om t he d e f e n d a n ts b e i ng d a m a g es suffered by h er as a result of w r o n g f ul a nd u n l a w f ul killing of o ne A u b r ey B o f i h la K o m a n e, h er natural s o n. In reply to the request for further particulars the plaintiff stated that at t he t i me of his death, t he d e c e a s ed s on w as 27 y e a rs o ld a nd that o ut of his m o n t h ly salary of M 7 1 3 . 86 at S a s ol II S e c u n d a, t he plaintiff e n j o y ed m a i n t e n a n ce in t he a m o u nt of M 3 0 0 . 00 p er m o n t h. S he also a n n e x ed an actuary's report of J. A. C a r s on & Partners w ho e s t i m a t ed t he p e c u n i a ry loss suffered by t he plaintiff as a result of t he d e a th of h er s o n, a nd p ut this at M 6 6 , 7 5 8 . 0 0. In their p l ea t he d e f e n d a n ts a d m it that they caused the d e a th of A u b r ey B o f i h la K o m a ne on the 13th A p r il 1 9 90 at H l o t se in t he district of L e r i be b ut d e ny that t he p o l i c e m an w ho shot a nd killed t he d e c e a s ed a c t ed w r o n g f u l ly or u n l a w f u l ly b e c a u se as t he p o l i c e m en w e re trying to arrest t he d e c e a s ed on s u s p i c i on that he h ad c o m m i t t ed an o f f e n c e, he p o i n t ed a firearm at t he p o l i c e m en w ho w e re affecting t he arrest a nd that:- " In t he p r o c e ss of resisting t he aforesaid arrest he seriously a nd in a m o st d a n g e r o us m a n n er threatened injury to the lives a nd b o d i es of t he ( d e f e n d a n t s) w ho in reaction thereto, c o n s e q u e n t ly c a u s ed t he d e a th of t he d e c e a s ed a nd as a result d e f e n d a n ts d e ny that plaintiff h as suffered d a m a g es as alleged or at all". T he plaintiff t h en r e q u e s t ed further particulars to t he d e f e n d a n t 's p l ea in o r d er to be a b le to replicate a nd t he d e f e n d a n ts s u p p l i ed particulars to t he effect that t he d e c e a s ed w as threateningly b r a n d i s h i ng a firearm a nd p o i n t i ng it indiscriminately at p e o p le a r o u nd h im a nd threatening a nd asserting that he w o u ld kill t h em As he w as d o i ng the aforesaid, t he d e c e a s ed h ad his forefinger of t he right h a nd b e nt on or a r o u nd t he trigger of t he firearm." T h e se particulars w e re supplied by Mr M a k h e t he of t he O f f i ce of t he A t t o r n ey G e n e r al on t he 5th July 1 9 9 1. After a lull of s e v en years, an application w as m a de by Mr M a k h e t he for leave to a m e nd the plea a nd further particulars in t e r ms of R u le 3 3, a nd u s ed in support thereof the affidavit of T s o lo R a l i e n g o a ne (the p o l i c e m an w ho fired the fatal shot) in w h i ch he described the c i r c u m s t a n c es of the shooting. P a r a g r a ph 5 of his affidavit is w o r th quoting in full on a c c o u nt of its r e l e v a n ce to the inquiry w h e t h er d e c e a s ed w as killed in self-defence. " As we w e re a p p r o a c h i ng the scene of the said incident, we r e c o g n i s e d, on information, the said d e c e a s ed A U B R EY B O F I H LA K O M A NE in the c o m p a ny of another m an of his size a nd p r o b a b ly a g e. T h ey w a l k ed in a staggering m a n n er as if in d r u n k en stupor. T h ey w e re c o m i ng t o w a r ds u s, g o i ng the opposite direction to the o ne we w e re taking. As they a p p r o a c h ed t o w a r ds us a nd we finally g ot up w i th t h em a f ew p a c es in opposite directions, we introduced ourselves to t h em as police-officers a nd o r d e r ed t h em to i m m e d i a t e ly stop. H o w e v e r, his c o m p a n i on w ho to this d ay we h a ve n ot b e en able to identify, ran a w ay a nd disappeared a w ay f r om o ur sight. Plaintiffs s on c o m p l i ed a nd raised his h a n d s. My colleague N EO M O K O T JO a p p r o a c h ed for p u r p o s es of search. We w e re in u n i f o rm a nd carrying o ur S L R. rifles w h i ch are b e i ng a nd easily recognisable. As N EO M O K O T JO a p p r o a c h e d, plaintiffs s on quickly r e a c h ed for his waist, pulled out a 9 mm firearm, w h i ch is v e ry p o w e r f ul a nd is m o s t ly r e c o m m e n d ed for A r my a nd police officers. He pointed it at N EO M O K O T JO w ho t o ok c o v e r, a nd lied d o w n. S e n s i ng the d a n g er we w e re b o th in, I h ad no choice b ut to act to save o ur e n d a n g e r ed lives. T he w h o le thing t o ok hardly m o re t h an t wo m i n u t e s. It h a p p e n ed quickly. I shot plaintiffs s on twice. T he first t i me I shot, I s aw h im still standing a nd pointing his g un t o w a r ds my colleague N EO M O K O T J O. I shot the s e c o nd t i me a nd it w as t h en that he fell d o w n. W h en the d e c e a s ed threatened to s h o ot as aforesaid, in all the circumstances it w o u ld h a ve b e en v e ry difficult to rule o ut that if he s u c c e e d ed shooting my colleague N EO M O K O T JO he w o u ld n ot turn to m e. I acted in d e f e n ce of o ur lives." In his o wn affidavit Mr M a k h e t he explains that the n e ed to a m e nd w as necessitated by the incongruity b e t w e en the original plea a nd the actual instructions of his clients. On the date of trial, Mr Sello formally consented to a m e n d m e n ts to the plea a nd to the further particulars. Of necessity it w as agreed that the lawfulness of the fatal shooting should be determined by this court before the assessment of d a m a g es as claimed. It w as also agreed that the o n us of proof w as on the defendants to prove that the killing w as excusable or justified under law. This onus m ay be discharged on a balance of probabilities. First to be called by the defendants w as Captain R a k h o n g o a na M o h a n oe w ho informed the court that in April" 1 9 90 he w as a police warrant officer stationed in Leribe (National Security Services). He told the court that on the afternoon 13th April 1 9 90 he w as watching television in the private bar at Leribe Hotel. At about 3 pm o ne person c a me in holding a quart of beer. H a v i ng sat d o wn the m a n, u n k n o wn to h im at the time, then pointed at the television set a nd loudly remarked, " L e a b ua with his soldiers h a ve killed our fathers!" a nd thereupon produced a g un - 9 mm colt - a nd pointing it u p w a r d s, said " S o m e o ne can excrete." Silence fell u p on the private bar and people b e g an filing out. He says he b e c a me frightened as he did not h a ve his o wn service g u n. After this m an h ad left the private bar, he says he then w e nt to the Hlotse police station a nd he noticed that the m an w as n ow in the public bar. He says he then m a de a formal report to Sgt. L e p h e a ne about the g un wielding m an at the hotel. S gt L e p h e a ne then patrolled out t wo troopers - R a l i e n g o a ne a nd M o k o t jo to go to the L e r i be Hotel. T he t wo troopers j u m p ed into the b u ck of his v an a nd w o re overall u n i f o rm a nd a r m ed w i th S LR rifles. He says that n e xt to P ep Store they s aw t wo m en c o m i ng t o w a r ds t h e m. He t h en p o i n t ed o ut the m an w ho h ad b e en w i e l d i ng a g un in the private bar. He says that at the t i me he pointed h im out, t h e— m an did not h a ve a n y t h i ng in his h a n d s. He said after t he t wo troopers h ad alighted, he d r o ve on t o w a r ds the hotel intending to m a ke a u-turn. He said he then s u d d e n ly heard a g un shot-even before he c o u ld m a ke a u-turn. T he g un shot w as f r om behind. He t h en turned his vehicle a nd d r o ve b a ck o n ly to find p e o p le milling a r o u nd a m an w ho w as prostrate on the g r o u n d. He g o es on to say that T r o o p er M o k o t jo c a me up to h im a nd said " H e re is the g un - we h a ve it." He s aw the g un w h i ch M o k o t jo w as t h en holding. It w as the g un he h ad s e en b e i ng w i e l d ed in the private bar. T h ey then loaded the m an o n to the v an a nd transported h im to M o t e b a ng hospital w h e re he w as later certified dead. U n d er cross-examination by Mr Sello, the witness a g r e ed that it w as rather u n u s u al that there w as no g un h a n d ed in at the inquest. He agreed that the d e c e a s ed l o o k ed d r u nk w h en he uttered the w o r ds " L e a b ua h as killed o ur fathers" a nd w as pointing the g un u p w a r ds " Q u e s t i o n: W h at offence w as c o m m i t t ed by h i m? A n s w e r: Frightening the p e o p le He explained his p u r p o se of g o i ng to report h im at the C h a r ge Office w as in order to effect his arrest a nd "not to execute h i m" (as Mr Sello p ut it). He says M o k o t jo explained to h im that they shot the m an b e c a u se the m an w as also shooting t h em - h a v i ng p r o d u c ed the g un - a nd that he h ad m i s s ed a nd that R a l i e n g o a ne shot h i m. It as b r o u g ht to his attention that at the inquest neither M o k o t jo or R a l i e n g o a ne stated that the deceased h ad fired a shot before he w as shot by Raliengoane. He denied that he drove on so that the d e c e a s ed could be shot. He c o n c e d ed that in his t w e n ty years experience he h ad n e v er c o me up w i th a situation w h e re a suspect w ho is confronted by t wo a r m ed police, could d r aw out a g un to shoot. He says he heard only o ne shot a l t h o u gh R a l i e n g o a ne says he fired t wo shots. N e xt called w as T r o o p er R a l i e n g o a ne w ho told the court that he is the m e m b er of the L e s o t ho Police h a v i ng joined the force in 1 9 8 7. In 1 9 90 he w as stationed at Hlotse C h a r ge Office. On the afternoon of 13th April 1 9 9 0, W a r r a nt Officer M o h a n oe arrived at the charge office a nd m a de a report that there w as a m an brandishing a firearm at the Leribe Hotel. He g o es on a state that Sgt L e p h e a ne then patrolled h im a nd trooper M o k o t jo to proceed to the hotel; they e m b a r k ed the v an then b e i ng driven by W /O M o h a n o e. T h ey w e re b o th w e a r i ng b r o wn overall u n i f o r ms a nd carried l o ng S LR automatic rifles. W h en they w e re n e ar P ep Store or D a m b a h 's Store, W /O M o h a n oe p o i n t ed o ut a certain m an as the p e r s on w ho h ad b e en b r a n d i s h i ng a g un in the hotel private bar. He says he a nd M o k o t jo t h en alighted a nd s t o p p ed the m an a nd his c o m p a n i on h a v i ng identified t h e m s e l v es as police. He s a ys they t h en said " H a n ds u p" a nd o ne of the t wo m en s u d d e n ly r an a w ay leaving the d e c e a s ed b e h i n d, w ho h ad t h en raised his h a n ds u p. He says he said to M o k o t jo " Go to h i m" whilst he r e m a i n ed b e h i nd covering M o k o t jo w i th his g un at the ready. As M o k o t jo a p p r o a c h ed the m an s u d d e n ly l o w e r ed his h a n d s, t o ok o ut the g un f r om his waist a nd pointed it at M o k o t j o. He s a ys s e n s i ng that M o k o t j o 's life w as in d a n g er he fired at the d e c e a s ed in order to protect M o k o t jo a nd b e c a u se he thought that after shooting M o k o t jo the m an w o u ld t h en turn u p on h im a nd shoot. He says he shot at the chest; w h en the m an did n ot fall, he fired again. All the t i m e, M o k o t jo stood still. T he d e c e a s ed t h en staggered a nd fell d o w n. He says he b e c a me frightened w h en d e c e a s ed w as pointing the g un at M o k o t j o. "I t h o u g ht that this m an is shooting a nd m i g ht s h o ot M o k o t j o" he says, a nd continues to state - "I did n ot consider shooting his h a nd as I t h o u g ht I m i g ht m i ss it." He says after this he ran b a ck to the charge office w h e re he m a de a report. W h en he c a me b a ck he t h en l o o k ed at the g un closely a nd s aw it to be a 9 mm pistol. He s a ys the m an w as t h en s e a r c h ed by Sgt. L e p h e a na a nd o ne 22 bullet w as f o u nd in his p o c k e t. T he m an w as t h en transported to the L e r i be H o s p i t al w h e re he w as certified d e ad on arrival. He told the court that he w as later c h a r g ed w i th c u l p a b le h o m i c i de b ut w as f o u nd n ot guilty ( CR 5 3 6 / 9 4 ). U n d er c r o s s - e x a m i n a t i on by Mr Sello, this w i t n e ss e x p l a i n ed that t h ey h ad p r o c e e d ed to the hotel b e c a u se W /O M o h a n oe h ad reported that a m an w as w i e l d i ng a g un at the L e r i be H o t el a nd t h ey w i s h ed to arrest h im a nd h ad a r m ed t h e m s e l v es w i th S LR self-loading rifles for self-defence. He said Sgt. L e p h e a na h ad o r d e r ed t h em to arrest that m an for his threatening b e h a v i o u r. He a g r e ed that d u r i ng their police training t h ey are taught martial arts a nd that d e p e n d i ng on the circumstances, u se of force m u st be resorted to as a last resort. He d e n i ed that the d e c e a s ed w as " e x e c u t e d" in cold b l o od b ut "I shot h im b e c a u se he t o ok out a g u n ," he says. "I w a n t ed to disable h i m. I did n ot shot at the a r m. I a i m ed w h e re he c o u ld n ot s h o ot a n y m o re .... I shot at r a n d om a i m i ng at the chest. My a im w as to d i s a rm h i m ." He also e x p l a i n ed that w h en the m an raised his h a n ds up he h ad s e en a g un on the right h i p - u n d e r p i n n ed by his belt. He s a ys the m an h ad a jersey u n d er w h i ch a g un w as revealed w h en he raised his h a n ds u p. At this point in t i m e, his c o m p a n i on h ad fled. He w e nt further to say he did n ot r e m e m b er a s k i ng M o k o t jo to take c o v er n or d id M o k o t jo t h r ow h i m s e lf d o wn a nd roll a w a y. N e xt called w as P . W .3 M a j or M i c h a el R a l e a ka to w h om the 9 mm g un w as g i v en by W /O L e p h e a n a. He testified that later he sent o ne p o l i c e m an K h o b o t lo to take the 9 mm f o u nd at the s c e ne for ballistic e x a m i n a t i on a nd that this e x a m i n a t i on revealed that the g un h ad n ot b e en u s ed at all. T h is 9 mm w as h a n d ed in as an exhibit at the inquest (Leribe Inq. 8 0 8 / 9 2 ). On e x a m i n a t i o n, this 9 mm c o u ld be described an old, rusty firearm no longer in a w o r k i ng condition in fact it c o u ld be 80 y e a rs old (It b e a rs m o d e l- 1 9 0 2 ). A c c o r d i ng to t he M a j or the g un is n ot 9 mm b ut an old. 38 w h i ch is s h a p ed like a 9 mm a nd a p p e a rs to h a ve b e en e x p o s ed to w e a t h er a nd rusty conditions. On b e i ng a s k ed by Mr Sello w h e t h er he c o u ld h a ve p r o d u c ed s u ch a g un in the c i r c u m s t a n c es described, the M a j or o p i n ed that it w o u ld be to invite trouble f r om police a r m ed w i th S LR rifles - a d r u nk p e r s on w o u ld h o w e v er u n w i s e ly do so. He a g r e ed that the police guidelines on the u se of firearms stipulate that the suspect m u st be disabled in order to arrest h i m. T he p o l i c e m en are trained in the shooting techniques - that is a b o ut h ow a nd w h en to u se a g u n. He a g r e ed that shooting a m an on the chest a nd t w i ce so, indicates intention to kill. He says that there m u st be a w a r n i ng shot - b ut that this d e p e n ds on the situation at h a n d. P . W .4 - M a i t u m e l e ng Tsotetsi w as then called to g i ve e v i d e n c e. S he told the court that s he u s ed to w o rk as a b ar lady at the L e r i be hotel public bar. S he says that s he u s ed to k n ow the d e c e a s ed to w h om s he w as related a nd that on the 13th April 1 9 90 the d e c e a s ed h ad arrived at the hotel in the c o m p a ny of t wo m en a nd o ne lady. T h ey b o u g ht beer a nd drank; t h en the d e c e a s ed t o ok o ut a g un a nd said " T h is is my stick," as if addressing his c o m p a n i o n s. S he identified the o ld g un b e f o re the court as the o ne the d e c e a s ed held on that d a y; the cross e x a m i n a t i on further revealed that the television set w as n ot in the public b ar b ut in the private bar; a nd s he in fact says that s he did n ot see M o h a n o e. T he t wo m en w ho a c c o m p a n i ed the d e c e a s ed that d ay w e re N k h a si a nd M a l e f a ne M o h a l e. P . W .5 w as Detective T r o o p er M o k o t jo w ho told the court that in A p r il 1 9 90 he w as stationed at H l o t se C h a r ge Office. He says that on the 13th A p r il 1 9 90 he w as on duty w h en a report w as received to the effect that s o m e o ne w as c a u s i ng trouble at the L e r i be hotel in that he w as w i e l d i ng a g un w h i ch h ad an unsettling effect on the c u s t o m e r s. He says W a r r a nt Officer L e p h e a ne t h en patrolled R a l i e n g o a ne a nd h i m s e lf to p r o c e ed to the hotel to a p p r e h e nd the m an w i th the g u n. T h ey p r o c e e d ed t o w a r ds the hotel in the v an driven by P . W .1 w ho h ad m a de the initial report. T h ey w e re also a r m ed w i th S LR rifles a nd w o re b r o wn police overalls. At the circle, M o h a n oe t h en pointed o ut o ne m an as the m an w ho h ad b e en w i e l d i ng a g un at the hotel. T h ey t h en alighted f r om the v an a nd M o h a n oe d r o ve o n. He says they then ordered the m an a nd his c o m p a n i on to stop. T he m an (the d e c e a s e d) s t o p p ed b ut his c o m p a n i on s u d d e n ly t o ok off ran a w a y. He says they ordered the deceased to raise his h a n ds up a nd he c o m p l i e d; he says that as he w as a p p r o a c h i ng h im the m an s u d d e n ly d r o p p ed his h a n ds a nd immediately took out a g un a nd pointed it at h i m. He w as a b o ut t wo p a c es a w ay w h en this h a p p e n e d. B e i ng s h o c k ed he i m m e d i a t e ly dived to the g r o u nd a nd rolled a w ay h a v i ng left R a l i e n g o a ne behind to c o v er h i m. He says he then heard t wo g un shots. W h en he got u p, he says he f o u nd the m an already lying prostrate apparently h a v i ng b e en shot by R a l i e n g o a ne a nd he says he s aw a g un lying next to h i m. R a l i e n g o a ne then rushed to the charge office a nd returned with L e p h e a n e; the m an w as then transported to the Leribe hospital w h e re he w as certified d e ad on arrival. U n d er cross examination, witness M o k o t jo insisted that he actually dived to the g r o u nd a nd then rolled a w ay to avoid being shot; a nd the court n o t ed that at the inquest, there w as no m e n t i on m a de about diving a nd in fact R a l i e n g o a ne before this court m a k es no m e n t i on of the fact that M o k o t jo dived to the g r o u nd a nd rolled. This fact w as also not m e n t i o n ed at the criminal trial at the Leribe Subordinate Court. T he defendants then closed their case. Mr Sello h a v i ng considered his position then elected n ot to call a ny witnesses a nd also rested his case. It w as c o m m on cause that the incidence of o n us in this case rested u p on the defendants to s h ow on a balance of probabilities that the killing of the deceased w as justified in the particular circumstances of the case. In this inquiry o ne m u st be cautious not to import the criminal standard a nd require that justifiability of the killing m u st be p r o v en b e y o nd a reasonable doubt. U n d er criminal law, factors or considerations w h i ch m ay render the accused's act not unlawful are usually described as "defences" to criminal liability; these statutory defences w h i ch m ay establish absence of unlawfulness and in appropriate circumstances can be relied u p on by the accused to escape conviction e.g. statutory defence under section 42 of the Criminal Procedure a nd Evidence A ct N o .9 of 1981 is phrased as follows:- " 4 2. (1) W h en a ny peace officer or private person authorised or required u n d er this A ct to arrest or assist in arresting a ny person w ho has committed or is on reasonable grounds suspected to having c o m m i t t ed a ny of the offences m e n t i o n ed in Part II of the First Schedule, attempts to m a ke the arrest, a nd the person w h o se arrest is so attempted flees or resists and cannot be a p p r e h e n d ed and prevented f r om escaping, by other m e a ns than by the p e a ce officer or private person killing the person so fleeing or resisting such killing shall be d e e m ed justifiable homicide. (2) N o t h i ng in this section shall give a right to cause the death of a person w ho is not accused or suspected on reasonable g r o u n ds of having c o m m i t t ed any of the offences m e n t i o n ed in Part II of the First Schedule, the offence of theft being limited for the purposes of this section, to theft in a dwelling h o u se at night, and theft of stock or produce." As it c an be o b s e r v ed the right to kill is a restricted o ne u n d er o ur l a w. U n d er the 1 9 93 Constitution, S e c t i on 5 g u a r a n t e es " R i g ht to L i f e" w i th the f o l l o w i ng provisions:- " ( 2) (1) E v e ry h u m an b e i ng h as an inherent right to life. No o ne shall be arbitrarily d e p r i v ed of his life. ( 2) W i t h o ut prejudice to a ny liability for a c o n t r a v e n t i on of a ny other l aw w i th respect to the u se of force in s u ch c a s es as are hereinafter m e n t i o n e d, a p e r s on shall n ot be r e g a r d ed as h a v i ng b e en d e p r i v ed of his life in contravention of this section if he dies as the result of the u se of force to s u ch extent as is n e c e s s a ry in t he c i r c u m s t a n c es of the c a s e- (a) for the d e f e n ce of a ny p e r s on f r om v i o l e n ce or for the d e f e n ce of property; ( b) in o r d er to effect a l a w f ul arrest or to p r e v e nt the e s c a pe of a p e r s on lawfully detained; (c) for the p u r p o se of s u p p r e s s i ng a riot, insurrection or m u t i n y; or ( d) in o r d er to p r e v e nt the c o m m i s s i on by that p e r s on of a criminal o f f e n c e, or if he dies as the result of a lawful act of w ar or in e x e c u t i on of the s e n t e n ce of d e a th i m p o s ed by a court in respect of a criminal o f f e n ce u n d er the l aw of L e s o t ho of w h i ch he h as b e en convicted." O ur l aw therefore r e c o g n i s es a nd g u a r a n t e es the sanctity of h u m an life a nd a p e r s on c an o n ly be lawfully killed o n ly in c i r c u m s t a n c es c i r c u m s c r i b ed by the l aw a nd it is u p on the d o er of the d e ed that d e p r i v es a life to justify his act, h e n ce the i n c i d e n ce of the o n us of p r o of b e i ng cast on h i m. U n d er our l aw a p e r s on w ho c an p r o ve that the d e c e a s ed h ad a d u ty to support h im or her, is entitled to claim for the patrimonial loss of support resulting f r om the unlawful a nd culpable killing of his b r e a d w i n n e r. T he plaintiff h as to firstly p r o ve that he or s he h as a right of support against the d e c e a s ed (Visser & Potgieter L aw of D a m a g es ( 1 9 9 3) pp 2 1 9, 3 7 5; In the present case, the plaintiff's right as the natural m o t h er of the d e c e a s ed to claim support h a s, h o w e v e r, n ot b e en disputed. W h at is in issue in these p r o c e e d i n gs in w h e t h er the killing of the d e c e a s ed w as justified in l aw a nd in the circumstances of this case. T he b a c k b o ne of the case of the defendants is to the effect that w h en he w as shot, the d e c e a s ed h ad w h i p p ed out a g un a nd w as pointing it at T r o o p er M o k o t jo w ho w as then p r o c e e d i ng t o w a r ds h im to search for a g un w h i ch h e, deceased h ad b e en wielding in the Leribe hotel private bar. In fact, s i m p ly put, it w as a killing in defence of another, a nd it ultimately boils d o wn to an issue of credibility of witnesses; in this case only the defendants called witnesses a nd the plaintiff rested its case w i t h o ut calling a ny witnesses. T he ultimate inquiry therefore is w h e t h er the defendants h a ve discharged the o n us cast on t h em on a balance of probabilities. In a civil case the o n us is discharged if the story of the party bearing the o n us is m o re probable than the other. W h i l st it is clear that the g un w h i ch w as h a n d ed in these p r o c e e d i n gs w as n e v er fired n or w as it capable of ever b e i ng fired, b e i ng an ancient piece of m e t a l, it is a pertinent question of fact w h e t h er on that d ay a nd o c c a s i on the d e c e a s ed s u d d e n ly d r o p p ed his a r m, d r ew o ut the g un f r om his w a i st a nd p o i n t ed it at T r o o p er M o k o t j o. R e g a rd b e i ng h ad to c i r c u m s t a n c es it w o u ld i n d e ed be c o m p l e te foolishness for the d e c e a s ed to h a ve d o ne so a f ew p a c es f r om t wo a r m ed p o l i c e m e n. On the other h a nd it is also a real probability that T r o o p er R a l i e n g o a ne c o u ld h a ve over-reacted by s h o o t i ng at t he m an d r o p p i ng his h a nd b e c a u se a g un h ad b e en e x p o s ed w h en he raised his h a n d s. A l t h o u gh there h as b e en no e v i d e n ce called to g a i n s ay the e v i d e n ce of the t wo p o l i c e m en M o k o t jo a nd R a l i e n g o a n e, their e v i d e n ce m u st h o w e v er be tested u p on their o wn credibility a nd probability. It s e e ms to me that it is m o re p r o b a b le that R a l i e n g o a ne w as a bit q u i ck to s h o ot w h en he s aw he an e x p o s ed g un t h an a c a se of t he d e c e a s ed pointing a rusted old h ag of a g un at an a r m ed p o l i c e m an w ho w as also b e i ng c o v e r ed by his colleague. I am also of the v i ew that t he c o n d u ct of t he d e c e a s ed on the d ay of publicly displaying the g un w as b l a m e w o r t hy itself to s ay the least. It is irrelevant that he w as in fact toting w h at he k n ew w as an old g un w h i ch c o u ld n e v er hurt a fly. O t h er p e o p le did n ot k n ow that a nd w e re i n d e ed justified to treat the g un as c a p a b le of b e i ng fired. He the d e c e a s ed created a nd b r o u g ht a b o ut a risky situation u p on himself. It is unfortunate that a l t h o u gh N k h a si a nd M o h a le g a ve e v i d e n ce at the criminal trial, t h ey w e re n ot called by the plaintiff if at all an execution-style s h o o t i ng w as b e i ng alleged. T h e se t wo m en s e em to h a ve b e en p r e s e nt at the s c e ne i m m e d i a t e ly before the s h o o t i ng occurred. T h is court is n ot g o i ng to c o n c l u de that the d e c e a s ed w as i n d e ed " e x e c u t e d" w i t h o ut c a u s e, w i t h o ut clear e v i d e n ce to that effect b e i ng a d d u c e d. T h at w o u ld be to speculate w i t h o ut evidential f o u n d a t i o n. T he position of the g un shot w o u n ds is also of i m p o r t a n c e; if say, for example, the g un entry w o u n ds w e re at the b a ck of the head or b o d y, then perhaps the inference m i g ht be d r a wn that the shooting w as unjustified. This court is the v i ew that the m o re plausible probability is that w h en he w as shot at by Raliengoane, the latter believed rightly or w r o n g ly that the deceased d r o p p ed his h a nd or h a n ds in order to d r aw out f r om his waist the g un w h i ch h ad b e en exposed w h en the deceased raised his h a n ds up. As I h a ve already pointed out, it is improbable that the deceased w as shot at by Raliengoane without cause. I hold therefore that by wielding a g un in the hotel a nd wearing it under his belt the deceased created for himself a hazardous if not a dangerous situation w h i ch further created panic w h en he raised his h a n ds exposing the g un under his belt. T he t wo policemen could not be expected to h a ve k n o wn that the g un w as old and utterly useless a nd totally incapable of h a r m i ng a ny one. I dare say e v en if it w as a Christmas toy-gun, their reaction could still be similar if such a toy looked like a real g u n! On the other hand, I am of the v i ew that the reaction of Raliengoane to shoot w h en the deceased dropped his hands w as a bit panicky a nd he could h a ve swiftly disabled the deceased with his automatic rifle without killing h i m. It is also the evidence of M o k o t jo and Raliengoane that the deceased w as staggering about as he c a me along a nd appeared drunk. In my v i ew shooting the m an on the chest w as not completely justified a nd w as not the only option left. Section 42 of our Criminal Procedure a nd Evidence A ct N o .9 Of 1981 is worth referring to though neither Mr M a k h e t he or Mr Sello referred to it in these proceedings. It s e e ms to me that section 42 a b o ve purports to authorise the taking of h u m an life in certain circumstances; this section h o w e v er circumscribes this right to only those situations w h e re the deceased has or is reasonably suspected of having c o m m i t t ed a ny of the serious offences u n d er Part II of the First Schedule. It is therefore unnecessary to decide whether by wielding a g un (old, loaded or unloaded) in a public place like the Leribe hotel the deceased thereby committed o ne of the offences listed u n d er Part II of the First Schedule. In the case of R a l o so vs W i l s on a nd others - 1 9 98 (4) SA 3 69 w h e re section 49 of the South African Criminal Procedure A ct 51 of 1 9 77 w as pleaded to justify the killing and its constitutionality w as considered by the court ( see also section 5 of the Lesotho Constitution quoted a b o v e ). It s e e ms to me that generally speaking the killing m ay be unjustified if it is the result of the use of force to such extent as is necessary in the circumstances of the case (a) for the defence of any person f r om violence ... or (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained ... or (d) in order to prevent c o m m i s s i on by that person of criminal offence. Section 5 of the Lesotho Constitution indeed crystalizes the c o m m on l aw principles of private defence; each case m u st h o w e v er be decided objectively u p on its o wn particular circumstances - see R. v L a b u s c h a n ge - 1 9 60 (1) SA 6 32 per Schriener J. A. w ho noted that section 37 of Criminal Procedure A ct 56 of 1955 (similar to our section 4 2) afforded the police an extremely and, indeed dangerously w i de protection and opined that the Legislature could not possibly have intended that recourse to shooting should be h ad light - heartedly. T he ultimate test should be whether the defendants h a ve proved on a balance of probabilities that there w as no w ay in w h i ch the p o l i c e m en could h a ve incapacitated the d e c e a s ed s a ve by killing h i m. W h e re section 42 of the C r i m i n al P r o c e d u re a nd E v i d e n ce A ct d o es n ot a p p ly e.g. w h e re the o f f e n ce c o m m i t t ed or r e a s o n a b ly suspected to h a ve b e en c o m m i t t ed is n ot listed in Part II of the First S c h e d u l e ), the c o m m on l aw principles applies, a c c o r d i ng to w h i ch the lawfulness of the force u s ed will d e p e nd on all the c i r c u m s t a n c es inter alia the seriousness of the offence m u st be w e i g h ed against the d e g r ee o f f o r ce - M a t l ou v M a k h u b e du 1 9 78 ( 1) SA 9 4 6; R . v. B r i tz - 1 9 49 ( 3) SA 2 93 at 3 03 - 4; W i e s n er v M o l o mo - 1 9 83 (3) SA 1 5 1. In the c i r c u m s t a n c es of this case, I h a ve already f o u nd that is n ot p r o b a b le that the d e c e a s ed actually p o i n t ed the firearm at T r o o p er M o k o t jo as he a p p r o a c h e d; at the s a me t i me it w as n ot u n r e a s o n a b le for T r o o p er R a l i e n g o a ne to h a ve believed that w h en he d r o p p ed his h a n d s, the d e c e a s ed w as g o i ng to take o ut the e x p o s ed g un a nd s h o ot M o k o t j o. T r o o p er R a l i e n g o a ne all the t i me h ad his finger on his rifle trigger (as a ny diligent p o l i c e m an will d o) a nd c o u ld h a ve fired at the l o w er l i m bs or torso of the d e c e a s ed to disable h i m. H e re it m u st be u n d e r s t o od that T r o o p er R a l i e n g o a ne c o u ld n ot be e x p e c t ed to s h o ot w i th a c o w b oy precision of w i ld T e x as a nd to h a ve shot the h a nd g o i ng to g r ab the g u n. W h i l st the e v i d e n ce of the t wo troopers is n ot satisfactory a nd c o n g r u e nt on certain aspects e.g. w h e t h er trooper M o k o t jo t h r ew h i m s e lf to the g r o u nd a nd rolled a w ay w h en the d e c e a s ed s u d d e n ly d r o p p ed his a r m s, their e v i d e n ce c a n n ot be discounted in toto as fabrication m o re so b e c a u se their e v i d e n ce h as not b e en gainsaid. At the s a me t i me it c a n n ot be said the d e c e a s ed w as shot a nd " e x e c u t e d" for no c a u se at all. Probabilities p o i nt to an over-reaction on the part of R a l i e n g o a ne w h en faced w i th a s u d d en e m e r g e n c y, a nd that this w as precipitated by a foolish act on the part of the deceased. T h e re is in my v i ew contributory fault on the part of the p o l i c e m an w ho shot on o ne h a nd a nd on the deceased on the other. This being the case, Section 2 of the A p p o r t i o n m e nt of D a m a g es O r d er N o . 53 of 1 9 70 is pertinent. It reads:- " 2. (1) (a) W h e re a ny p e r s on suffers d a m a ge w h i ch is c a u s ed partly by his o wn fault a nd partly by the fault of a ny other person, a claim in respect of that d a m a ge shall not be defeated by reason of the fault of the claimant but the d a m a g es recoverable in respect thereof shall be reduced by the court to s u ch extent as the court m ay d e em just a nd equitable h a v i ng regard to the degree in w h i ch the claimant w as at fault in relation to the d a m a g e. (b) D a m a ge shall for the p u r p o se of p a r a g r a ph (a) be regarded as h a v i ng b e en caused by a person's fault notwithstanding the fact that another p e r s on h ad an opportunity of avoiding the c o n s e q u e n c es thereof a nd negligently failed to do so." Generally speaking the assessment of the extent to w h i ch a plaintiffs c o m p e n s a t i on should be r e d u c ed in accordance with his negligence is obviously within the equitable discretion of a trial court - S o u th British I n s u r a n ce C o. L td vs S m i th - 1 9 62 (3) S A 8 26 at 8 3 7; Shield I n s u r a n ce C o. L td vs T h e r on - 1 9 73 (3) SA 5 15 ( A) at 5 1 8. In the case of B ay P a s s e n g er T r a n s p o rt L td vs F r a n z en 1 9 75 (1) SA 2 69 Trollip J A. at p.274 stated as follows " T he best that a court c an do is to decide by the broadest general considerations an a m o u nt w h i ch it considers to be "fair in all circumstances of the case"... the general rule that should be observed in assessing the a m o u nt is, I think, the well k n o wn fundamental one that, in such circumstances of difficulty and dubiety, defendants should be regarded with greater favour than plaintiffs"- favorabiliores rei potius q u am actores habentus (Digest 50.17.125). In other words, in striving to determine an amount that will be fair in all the circumstances, the court should act conservatively rather than liberally towards the plaintiff lest some injustice be perpetrated on the defendant." - The learned Judge of Appeal cited as follows from Pitt v Economic Insurance Co. Ltd - 1957 (3) SA 284 at 287 (Holmes JA) the court must take care to see that its award is fair to both sides - it must " give just compensation to the plaintiff but must not pour out largesse from the horn of plenty at the defendants expense." The learned Judge further noted that "one's natural sympathy for an injured person does not result in overlooking the fact.. That the figure of justice carries a pair of scales, not a cornucopia - Innes vs Visser 1936 W LD 44/45 - See also Phae v Monyane & others - 1974 - 75 L LR 285 Mohlaba vs C o m m a n d er L DF 1995-96 L LR 235. In assessing the amount of compensation the court should pay regard to actuarial evidence which can play an important role in assisting the court in cases where parties cannot reach an agreement. Although an actuary possesses the necessary skill to calculate mathematically the amount in a somewhat logical way the court still has a bona fide discretion in the matter - Legal Ins. Botes 1963 (1) SA 608 at 614. (For damages for loss of support caused by the death of another, see generally Visser & Potgieter - supra page 374 etc) H a v i ng c o n s i d e r ed all the c i r c u m s t a n c es of this c a se I am of t he v i ew that fault m u st be a p p o r t i o n ed proportionally a nd I a p p o r t i on it proportionally at 4 0% (plaintiff) a nd 6 0% (defendant). T he plaintiff is therefore entitled to 2 0% of t he amount claimed a s s u m i ng t he correctness of the actuary's a s s e s s m e n t. T h is w o u ld t h en c o me to M 1 3 , 3 5 1 . 6 0. S . N. PEETE J U D GE F or Plaintiff: Mr Sello F or D e f e n d a n t s: Mr M a k h e t he