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Botswana: Court of Appeal

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Mogome v Attorney General (Civil Appeal No. 14 of 1994) [1995] BWCA 18; [1995] B.L.R. 198 (CA) (31 January 1995)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
CIVIL APPEAL NO. 14 OF 1994 HIGH COURT CIVIL CASE NO. 1856 OF 1992
In the matter between:
FRANCINAH MOGOME         Appellant
and
ATTORNEY GENERAL         Respondent
Mr. T. Joina for the Appellant Mr. M. Chamme for the Respondent
JUDGMENT
CORAM; T.A. AGUDA J.A.
P.H. TEBBUTT J.A. LORD W.L.K. COWIE J.A.
TEBBUTT J.A.;
The appellant was the Plaintiff in the Court a quo in an action in which she claimed from the respondent damages in the sum of P240 907.000 for loss of support and P5 160.00 for funeral expenses arising out of the death of her son, Edward Remotlwaetse, to whom I shall refer as the deceased. She alleged that his death had been caused by the negligence of certain policemen in the course and scope of their employment with the respondent. The Court dismissed her claim, with costs. She now appeals to this Court against that decision.
The undisputed facts are simple and may be shortly stated. They are these.
On 13th April, 1991, the deceased, who was then 26 years of age, was sleeping at the house of his girl friend in the village of Kalamare when, at about 11 p.m. he was awoken by three members of the Botswana Police who told him that he was

2
being arrested on a suspicion of assault. He got dressed and then accompanied the police to a police vehicle, a Toyota Land Cruiser van, which was fitted with a canopy at the back. Cooperating fully with the police, he entered the canopy portion of the vehicle and took up his seat on the reserve petrol tank which is in the rear of the vehicle in the canopy portion and just behind the front cabin.
Three members of the police were present at the time. They were Sergeant Mbayi, a Constable Phethu, who has since left the police, and Constable Ntesa, who was the driver of the van. At the trial Mbayi was called to testify by the plaintiff and Ntesa gave evidence for the defendant.
Ntesa said that the deceased entered the van voluntarily and of his own accord; Mbayi said he asked the deceased to do so. Who is correct matters not at all to the determination of the case. What is clear and undisputed is that the deceased was not violent in any way, entered the van peaceably and co-operated completely with the police. Indeed, the deceased, according to Ntesa, did not object in the least to accompanying them, saying that he would "go and sleep at Mr. Kelentse's house, who was our Station Commander at the time."
The rear door of the vehicle was according to the evidence fitted with handles by which it could be closed and opened from both the inside and the outside. There was no lock. When the deceased was in the back of the van, Ntesa closed the door and latched it by the handles from the outside. The deceased was then still sitting on the reserve petrol tank which, according to the record, is situated about two metres from the rear door.

3 He was not hand-cuffed or restrained in any manner. The three policeman thereupon took up their seats in the front of the van leaving the deceased alone and unaccompanied in the back. The police then drove to Mahalapye which is 34 kms from Kalamare. When they got there they found that the rear door of the van was open and the deceased no longer present in the van. They accordingly retraced their steps to Kalamare and about 9 kms from the latter found the deceased lying in the road. He was badly injured. He was taken first to hospital in Mahalapye and, because of the seriousness of his injuries, transferred the next day to Francistown Hospital where he died.
The appellant, who apparently paid for the deceased's funeral expenses, claimed these from the respondent. She also testified that the deceased supported her and she therfore claimed for her loss of support, as a result of the deceased's death, from the respondent as well. She averred that the police were acting at all material times within the course and scope of their employment with the respondent and that the deceased's death was due to their negligence. The trial Court non-suited her, finding that she had established no negligence on the part of the police.
It is undisputed that the police were acting within the course and scope of their duties as servants of the respondent. It is also trite that the basis of a dependant's claim for loss of support and for funeral expenses is a delictual one derived from the Roman-Dutch Law and founded on the negligence of the person from whom such loss and expenses are claimed [see EVINS V SHIELD INSURANCE CO. LTD 1980 [2] S.A. 814 [All . The Roman-

4 Dutch Law, is of course, the common law of Botswana [see Aguda: Legal Development in Botswana from 1885 to 1966, in Botswana on Records volume 5 page 56-57].
It has furthermore been accepted both in South Africa, where Roman-Dutch law is also the common law, since 1923 and under the law of torts in England since 1856, that the concept of negligence is based on a duty of care owed by the alleged wrongdoer [actor] to another and the failure on the part of the former to exercise that degree of care towards the later which the circumstance demand. Simply expressed, it consists of a breach of a duty of care [see CAPE TOWN MUNICIPALITY V PAINE 1923 A.D. 207; PERI-URBAN AREAS HEALTH BOARD V MUNARIN 1965 [3] S.A. 367 [A1 AT 373; BLYTH V BIRMINGHAM WATERWORKS CO. [18561 II EXCH 781 AT 784; DONOGHUE V STEVENSON [1932] AC 510; BOURHILL V YOUNG [19421 2 ALL ER 396 AT 402 and ANNS V MERTON LONDON BOROUGH COUNCIL [19781 AC 728 AT 751-7521.
It is also well-established that in deciding whether there has been a breach of the duty of care, the criteria which the Court must apply are those of reasonable foreseeability and the standard of conduct of the reasonable man in the same circumstances as those in which the actor found himself, [see Salmond and Heuston: Law of Torts 19th Edn [1987] at pp 244, 247 et seq; Bgberg: The Law of Delict at pp 269, 274; KRUGER V COETZEE 1966 [21 S.A. 428 [Al ; S V MOTAU 1968 [41 S.A. 670 [A1 AT 677 H; MINISTER VAN POL IS IE EN BUITELANDSE SAKE V VAN ASWEGEN 1974 [21 S.A. 101 [Al . As was stated by the Appeal Court in South Africa, an alleged wrongdoer is not liable for consequences which are not reasonably foreseeable [see BESTER

5 V COMMERCIAL UNION VERSEKERINGSWAATSKAPPY BPK 1973 CI] S.A. 769 [A] AT 777 D-E1. The test is an objective one.
Finally, the onus of proving negligence is on the Plaintiff who alleges it. It is not for the actor to excuse himself by proving that the accident was due to no negligence on his part; it is for the person who suffers the harm to prove affirmatively that it was due to the negligence of the actor. Moreover, the plaintiff's evidence must pass beyond the region of conjecture into that of legal inference rsalmond and Heuston op cit pp 265; Boberg op cit pp 2741. These principles apply equally in Botswana as they do in South Africa or England.
It is clear in the present case, and the respondent does not contest it, that the police, having arrested the deceased, had a duty of care towards him while he was in their custody. This is in accordance with the common law and the provisions of the Police Act [Cap 21:01].
Did the plaintiff at the trial, however, discharge the onus of proving that they breached that duty of care?
On behalf of the appellant it was contended that she did so
on four bases:
That the police drove their van [i] along a bumpy rural road at a speed of 70 k.p.h.;
[ii] when the rear door was closed but not locked.
[iii] when the vehicle was making so much noise that the policemen would not have heard any shout or cry by the deceased;
[iv] while the deceased was unaccompanied at the back of the van.
Mr. Joina for the appellant also argued that it was
negligent for the police to have continued to drive some 20 kms

6 to Mahalapye when the deceased was no longer in the van. There is no merit in this argument. It presupposes that the police must, or should, have been aware that the deceased had fallen or jumped from the van, as to which there is no evidence whatsoever. Nor can any negligence be inferred from the fact that they obviously did not know that the deceased had jumped or fallen from the van. There is no evidence from which it can be found that a reasonable man in the position of the police would have foreseen that the deceased could jump or fall from the van.
That brings me to what I consider to be the highwater mark of the appellant's case viz that the police allowed the deceased to travel unaccompanied in the back of the van. This would also embrace the allegation that the police could not have heard any call by the deceased which, by itself, could never be a ground of negligence and certainly not one causally connected to the death of the deceased. As to the other points, the evidence of both Mbayi, who, it must be remembered, was called by the plaintiff, and Ntesa was that even though the road was a bumpy rural one, a speed of 70 k.p.h. was safe and not excessive. In any event, there was no evidence whatsoever from which it could be concluded that the police should reasonably have foreseen that travelling on that road at 70 k.p.h. could have caused the rear door to open, a fact which would have had to be proved to establish a causal link between the death of the deceased and any negligence on the part of the police. There was no evidence that it had ever happened in the past. In fact the direct evidence of Mbayi was to the contrary - and he was the plaintiff's witness.

7
Coming then to the issue of whether it was negligent for the police to have left the deceased unaccompanied while travelling in the rear of the van, two questions arise: [a] did the deceased himself open the door and try to escape by jumping from the moving van and, if that is what happened, should the police reasonably have foreseen that he might do so?; or [b] did the door of the van open of its own accord and the deceased as a result fall through it out of the van and, if that is what happened, should the police reasonably have foreseen that that might occur?
As to first of these, the evidence is clear that the deceased was non-violent; had voluntarily entered the back of the van, whether requested to do so or of his own volition; had been fully co-operative with the police,- and had indicated that he had no objection to accompanying them and would spend the night with their Station Commander in Mahalapye. There was, therefore, not the slight reason for them, applying the test of the reasonable man in their position, to think that the deceased, if left unaccompanied in the back of the van, would try to escape by opening the door and jumping from it. As to the second, as I have already set out, the plaintiff adduced no evidence to establish that a reasonable man in the position of the police would have anticipated that the rear door of the van might open of its own accord. But the reasonable man would have had to go further. He would also have had to anticipate that the deceased would be likely to fall through the open door. There was no evidence whatsoever to support such an anticipation. The evidence is, on the contrary, overwhelmingly against it. The

8
deceased when the door was closed, was sitting peacefully on the
reserve petrol tank some two metres distance from the rear door.
It could not, in my view, be said that the police ought
reasonably to have foreseen that the deceased would be propelled
some two metres across the van and out of a door which they were
not to have foreseen could possibly open. It must be remembered
that it is not against any possibility of harm, however remote,
that precautions must be taken. It is only against "a
possibility of harm to another against the happening of which a
reasonable man would take precaution" [see JOFFE & CO. LTD V
HOSKINS 1941 A.D. 431 AT 4511
I am therefore of the view that on neither of these two
eventualities did the plaintiff establish any negligence on the
part of the police. It was, furthermore, incumbent on her to
establish which of these eventualities had in fact occurred
before it would have been possible to make any finding of
negligence in relation thereto. The evidence tendered on her
behalf did not do so and did not take the case "beyond the region
of pure conjecture into that of legal inference" [see JONES V
GREAT WESTERN RAILWAY [19301 144 LT 1941 . To quote the words of
Lord Macmillan in the latter case [cited by the learned Judge a
quo in his judgment]
"If the evidence establishes only that the accident was possibly due to the negligence to which the plaintiffs seek to assign it, their case is not proved. To justify the verdict which they have obtained, the evidence must be such that the attribution of the accident to that cause may reasonably be inferred. If a case such as this is left in the position that nothing has been proved to render more probable any one or two theories of the accident, then the plaintiff has failed to discharge the burden of proof incumbent upon him."

That is certainly the position in this case.
I agree therefore with the learned Judge a quo that the plaintiff failed to establish negligence on the part of the police. He therefore correctly dismissed her claim, with costs. The appeal accordingly fails and is dismissed, with costs.
DELIVERED IN OPEN COURT AT LOBATSE THIS 3/ST DAY OF JANUARY, 1995
P.H. TEBBUTT JUDGE OF APPEAL

I agree
T.A. AGUDA JUDGE OF APPEAL


I agree
LORD W.L.K. COWIE JUDGE OF APPEAL

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