Litsietsi Tlelase & Ano. V The Commissioner of Police & 5 Others (C of A (CIV) 46/2025) [2025] LSCA 70 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO. 46/2025 CIV/APN/270/2021 In the matter between: LETSISI TLELASE MAHOLOMO TLELASE 1ST APPELLANT 2ND APPELLANT AND THE COMMISSIONER OF POLICE SERGEANT MASABALLA POLICE CONSTABLE THEKO POLICE CONSTABLE BENYANE POLICE CONSTABLE CHALLA ATTORNEY GENERAL 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 6TH RESPONDENT CORAM: SAKOANE CJ DAMASEB AJA VAN DER WESTHUIZEN AJA HEARD: 23 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 FLYNOTE Limitation of Actions – Section 77 of the Police Service Act – Extension of Time – Condonation – Death in Police Custody – Inquest Findings – Good Cause – Indigency – Right to Life – Rule of Law – Public Interest. An application for extension of time to bring a civil claim for damages against the police under the proviso to s 77 of the Police Service Act was refused by the High Court on the basis that poverty and financial hardship were not sufficient justification for non-compliance with the six-month limitation period. On appeal, it was held that the lower court adopted an unduly rigid approach that ignored the broader constitutional context and the State’s own dereliction of duty. Where a citizen dies in police custody and the authorities fail promptly to hold an inquest or prosecute those responsible, the ensuing delay in instituting a damages claim occasioned by the bereaved family’s indigency and their efforts to secure justice privately may constitute “good cause” within the meaning of s 77. The Court emphasised that each case turns on its facts; the limitation rule must not be applied mechanistically so as to stifle meritorious claims arising from grave human-rights violations. In a constitutional democracy founded on the rule of law and respect for human life, the interests of justice demand that the courts afford an opportunity for accountability where there is prima facie evidence of police brutality resulting in death. Any prejudice to the Crown is outweighed by the injustice of denying redress to victims of official abuse. Held: Appeal upheld. The appellants’ delay in instituting proceedings condoned; extension of six months granted to file the damages claim. Costs awarded against the respondents jointly and severally. JUDGMENT P. T. DAMASEB AJA Factual background [1] This appeal arises from the decision of the High Court (Mahase J) dismissing the appellants’ application for extension of time to bring a damages claim against the police. Section 77 of the Police Service Act1 (the Act) reads: ‘77. Limitation of actions Any civil action against the Crown or persons acting in pursuance of this Act or the regulations made thereunder, in respect of anything done or omitted to be done in pursuance thereof, shall be commenced within six months next after the cause of action arises, and notice in writing of any civil action and of the substance thereof shall be given to the defendant at least two months before the commencement of the said action: Provided that the court may, for good cause shown, proof of which shall lie upon the applicant, extend the said period of six months.’ [2] The appellants instituted proceedings in the court a quo on 17 July 2021, seeking (although imprecisely and inelegantly worded) leave and condonation in terms of the proviso to s 77 of the Act in order to institute a claim for damages against the police. They sought an order in the following terms: ‘That the late filing of the claim for damages against the respondents be condoned and applicants be granted leave to institute same’. [3] Properly construed, the relief sought was an extension of the period of six months so as to institute the damages claim. 1 No. 7 of 1998. [4] The appellants alleged that they are the parents of the late Mr Teke Tlelase (the deceased) who was unlawfully killed by the police on 14 October 2016 while in police custody. Following the death of their son, the appellants incurred substantial legal costs to engage King’s Counsel to pursue an inquest into his death. They did so in order to establish who was responsible for his death, as the police had failed to investigate the matter and to prosecute the culprits. On or about 5 June 2019, the Chief Magistrate found that the second to fifth respondents were responsible for their son’s unlawful killing. [5] The second to fifth respondents were then arrested and charged, but were released on bail. According to the appellants, the criminal trial remains pending and the men they hold responsible for their son’s death returned to work as policemen. [6] According to the appellants, they made every effort to raise funds for a consultation with counsel pursuant to which a letter of demand was issued to the sixth respondent, the Attorney General, on 8 May 2020. The letter demanded payment of M2, 500 000.00 for damages for loss of support on the ground that whilst he was alive the deceased maintained them. [7] The appellants stated that the delay to institute the damages claim within six months after the outcome of the inquest was neither wilful nor due to any negligence on their part, but was occasioned by financial difficulties. For that reason, they sought leave to institute their claim outside the statutorily prescribed timeframe. They maintained that they have good prospects of success. [8] Regarding why they did not seek state funded legal assistance to bring the claim before the expiry of six months, the appellants contended that Legal Aid services are not available for the asking. They explained that their decision to engage King’s Counsel arose because of the police’s prior failure to properly investigate the matter, despite being both statutorily and constitutionally obliged to do so. They also stated that their indigent status constituted a barrier to instituting the claim within the prescribed time. [9] Finally, the appellants contended that the police officers who unlawfully caused the death of their son were, at all material times, in the employ of the Government as members of the Lesotho Mounted Police Service (LMPS) and were acting within the scope of their employment, rendering the Government vicariously liable. The respondents [10] The first respondent opposed the application and raised a preliminary point of law that, insofar as condonation and leave are sought in terms of s 77 of the Act, the cause of action arose four years, nine months, and twenty-eight days late. That, according to the respondent, means that the appellants’ claim had prescribed in terms of s 6 of the Government Proceedings and Contracts Act of 19652, which provides that no action shall be brought against 2 Section 6 reads: ‘Subject to the provisions of sections six, eight, nine, ten, eleven, twelve and thirteen of the Prescription Act, no action or other proceedings shall be capable of being brought against His Majesty in His Government of Lesotho by virtue of the provisions of the Crown after the expiry of two years from the date the cause of action arose. Secondly, the first respondent denied any involvement of the police in the death of the deceased. He denied the deceased died in police custody, but that he died in Mafeteng Hospital after complaining of not feeling well and looking rather unusually tired. [11] According to the first respondent, financial hardship did not constitute a valid reason for the delay in instituting the claim, particularly in circumstances where there was Government funded legal assistance available to the economically disadvantaged through the Legal Aid Offices. It was further contended that the appellants could have readily engaged counsel from the Legal Aid Offices and instituted their claim on time. [12] The first respondents denied that the appellants had any prospects of success in their claim for damages and implored the court to dismiss their claim with costs. The High Court [13] The High Court correctly rejected the respondents’ argument of prescription based on s 6 of the Government Proceedings and Contracts Act, finding that the appellants’ claim was premised on s 77 of the Act. [14] The court then held: section 2 of this Act after the expiration of the period of two years from the time when the cause of action or other proceedings first accrued.’ ‘[17] In terms of this particular section 77 of the Police Act, such a claim should have been filed or commenced within six months next after the cause of action arises, and notice in writing of any civil action and of the substance thereof shall be given to the respondents at least two months before the commencement of the said action; provided that the court may, for a good cause shown, proof of which shall lie upon the applicant, extend the said period of six months. [18] This is a straight forward provision of the law with no ambiguity nor any qualification. The applicants are to prove that they have a good cause for having failed to file and/or to commence their action timeously and as therein provided.’ [15] The court a quo found that economic hardship did not constitute a valid justification for non-compliance with the requirements of s 77 of the Act. It reasoned: ‘[19] In this application, the applicants have only stated that they are indigent as the reason why they could not file this action timeously; and also, that they first had to see to it, at their own expenses, that an inquest was held, and they incurred expensive costs for that to be held and finalised. [20] Unfortunately, the legislature, in promulgating this Act, did not consider it necessary to qualify it for the good of those people who find themselves in the position of the applicants in this application. Granted, that they were assisted by the King’s Counsel Adv. Z Mda to go on with the inquest, but they have not been supported in anyway by this counsel as he has not filed a supporting affidavit in this regard. This court is aware that, even if such counsel had done so, such an affidavit would not assist their case because the Act in question has not qualified nor stated any circumstances or exceptions under which the period of six months can be extended, unless by Court where good cause is shown.’ [16] Mahase J further found that, although the appellants claimed financial hardship, their counsel did not indicate whether the appellants were aware of the Legal Aid Office and the services it provides. Instead, counsel urged the court to consider whether the appellants had established a case for the extension of the prescribed period under s 77, based on their socioeconomic circumstances and the broader reality of widespread unemployment and poverty in the Kingdom. The court found the reliance on indigency unpersuasive. It added: ‘[22] Indigence and/or poverty which the applicants claim caused their failure to raise legal fees are of no consequence. They have simply not complied with this section. Sadly, the only issue which this court has to determine is whether it was impossible for applicants to institute a civil claim in line with section 77 of this Act.’ [17] The court then held that the appellants failed to comply with s 77 of the Act and concluded: ‘[25] This court cannot act outside this particular provisions of the law to include and/or to take into account such socioeconomic conditions whilst the Act is silent on same. [26] The net effect of the provisions of this section, is that a plaintiff who has failed to comply with its provisions is generally debarred from suing. Most probably the only exception that could be allowed is where compliance with it was at the relevant time impossible.’ [18] The court dismissed both the application for condonation of the late filing of the action and for non-compliance with s 77 of the Act. [19] Aggrieved by the decision of the court a quo, the appellants appealed to this Court on the following grounds: ‘Grounds of appeal 1. The court a quo erred in law and misdirected itself by having refused to grant the condonation. The court ought to have granted condonation application and held that a cause of action justifying condonation of the late filing of the appellant's case was made. 2. The applicants reserve their rights to file their additional grounds of appeal upon receipt of the judgment. 3. Wherefore: Appellant pray that this appeal should succeed with costs.’ Discussion [20] The relevant period for the computation of the six months within which the claim had to be launched is the date after the inquest result was made known by the Chief Magistrate - being 5 June 2019. A claim had to be lodged within six months from that date, in other words on or about 6 December 2019. The delay started from that date. The application to the High Court was made on 17 July 2021 which is about a year and six months from 6 December 2019. [21] The Crown supports the decision of the High Court and placed great store by the fact that the appellants opted not to seek legal aid. The point was made that the appellants failed to furnish a satisfactory explanation for the delay to prosecute their claim within six months of their cause of action arising. [22] During oral argument counsel for the Crown, Advocate Ntaitsane, submitted that unless potential claimants against the Police are held to the limitation period of six months and are required to adequately explain the failure to institute claims within the limitation period, there is a real danger of floodgates being opened and people lodging claims which had prescribed even decades later. Counsel added that in that event, the danger exists that the Police would find it difficult to defend claims because witnesses had either died or events had been forgotten about and vital evidence lost. Disposition [23] The floodgates argument is not fanciful. It deserves serious consideration. The first point to be made about it is that each case must be considered on its facts. It is unhelpful to make generalisations which may have the effect of shutting the door to deserving cases. The circumstances of the present case are unique. Not only is there no explanation by the Crown for the responsible authorities’ failure to have instituted inquest proceedings following the death in police custody of a citizen of this country. [24] The Crown had an obligation under s 6(f) of the Inquests Proclamation 37 of 19543 to call for an inquest following the deceasd’s deat. It states: ‘ . . . where a person dies ( otherwise than in lawful execution of sentence of death) while detained in any prison or reformatory or while in the custody of the police, to direct that an inquest into such death shall be held as soon as practicable; and for this purpose it shall be the duty of the person of the person having charge of the police in the district in which such death occurred forthwith to report the same to the Magistrate.’ [25] Although the inquest established culpability on the part of identified police officers who had been duly charged, they are not only out on bail but back to work. The circumstances of their return to work while facing a capital offence remains unexplained by the Crown on affidavit in the court a quo. 3 Inquests Proclamation 37 of 1954 (as amended per Proclamation 6 of 1964). [26] That under those circumstances the appellants would harbour suspicion about the authorities’ bona fides to get them justice in their quest for justice, is not unreasonable. There is no indication whatsoever, and none is suggested by the Crown that the appellants sat back on their proverbial laurels in their search for justice. The appellants had made plain on affidavit that they had been mobilising resources in the meantime to engage private legal representation to assist them in their search for justice. [27] It would be unjust in those circumstances for a court to take an armchair approach in making an assessment of the reasonableness of the appelnats’ inaction between the outcome of the inquest and approaching court for relief in terms of the proviso to s 77 of the Act. [28] In any event, the merits and prospects of their claim is a weighty consideration to be placed in the scale in determining whether there is ‘good cause’ for granting an extension. Disposition [29] Having regard to all the circumstances disclosed on the papers, I am satisfied that the facts justified the exercise of the court’s discretion in favour of extending the time period within which the appellants may institute their damages claim against the police. [30] In a democratic society founded on the rule of law and respect for human rights, including the right to life,4 it is of cardinal importance that when a citizen dies in suspicious circumstances while in police custody, the surrounding facts are properly and publicly ventilated.5 This is particularly so where, as in the present case, there is no satisfactory explanation for the authorities’ inaction in investigating the death of the deceased and holding those responsible to account to the full extent of the law. The impression that the police are above the law must at all times be resisted.6 [31] In the present case, there exists a prima facie case of police brutality in which the deceased lost his life while under the control of Crown agents. No one has been held accountable to date, and it remains uncertain whether anyone will ever be held to account through the criminal justice process. The appellants’ anticipated damages claim therefore represents the only viable avenue through which they can pursue justice, uncover the truth surrounding the death of their son, and attain a measure of closure and solace. [32] These weighty considerations, rooted in the public interest and the constitutional value placed upon human life, decisively mitigate the appellants’ delay in approaching the court a quo. A great deal of the evidence must have emerged during the inquest and one presumes also during the investigation that led to the 4 See Chapter II, s 5 of the Constitution of Lesotho. 5 See Attorney-General v Lerotholi LAC (1995-99) 31. 6 Khabanyane v Commissioner of Police and 2 Others (CIV/T/254/2016) [2023] LSHC 211 (7 March 2023) at 18 para [31]. prosecution of the culprits. Therefore, in the words of Mahomed P in Attorney-General v Lerotholi:7 ‘The prejudice to the Crown must be minimal if the respondent is allowed to pursue the proposed action and certainly very substantially less than the prejudice to the [the appellants] if [they are] not allowed to do so, but [have] in fact been …victim of police abuse’. [33] In the circumstances, the interests of justice plainly favoured granting the extension sought under the proviso to s 77 of the Act. [34] The appeal should therefore succeeed, with costs. 7 Attorney-General v Lerotholi LAC (1995-1999) at 34F-G. Order [35] In the result, I make the following order: 1. The appeal succeeds and the judgment and order of the High Court are set aside and replaced with the following: ‘(a) The application succeeds. (b) The applicants’ delay in instituting proceedings against the Police in terms of s 77 of the Police Act is condoned. (c) Extension is granted to the applicants to institute proceedings against the Police for the death of Teke Tlelase within six months from the handing down of this order. (d) The applicants are awarded costs of suit against the first to sixth respondents, jointly and severally the one paying the other to be absolved.’ 2. The appellants are awarded costs on appeal against the first to sixth respondents, jointly and severally, the one paying the other to be absolved. _______________________________ P. T DAMASEB ACTING JUSTICE OF APPEAL I agree I agree _______________________________ S. P. SAKOANE CHIEF JUSTICE _____________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL FOR APPELLANTS: ADV F SEHAPI FOR THE RESPONDENTS: ADV T NTAITSANE