Thabo Seobi V COMPOL & Ano. (CIV/T/141/2021) [2024] LSHC 116 (8 July 2024)

 

 

 

 

IN THE HIGH COURT OF LESOTHO

 

 

HELD AT MASERU                                           CIV/T/141/2021

 

  In the matter between:

 

THABO SEOBI                                                   PLAINTIFF

 

and

 

COMMISSIONER OF POLICE                           1^st DEFENDANT                                                                   

THE ATTORNEY GENERAL                              2^nd DEFENDANT

 

Neutral citation : Thabo Seobi v Commissioner of Police and Another [2024] LSHC 116 Civ (08 July 2024)

 

CORAM              :      KHABO J.,

HEARD              :      02 NOVEMBER 2023

DELIVERED       :      08 JULY 2024

 

SUMMARY

 

 

Damages - in an action for damages arising out of an incident in which a Police Officer was allegedly assaulted and insulted by fellow Police Officers in full view of other Police Officers and members of the public in in a busy street in the process of his arrest on suspicion of attempting to solicit a bribe from the wife of a suspect telling her that he had kidnapped his husband and demanding a ransom - He alleges that the insults and assault continued even in the process of his incarceration at the Police headquarters in Maseru in front of his colleagues;

 

The Plaintiff further complains of the propriety of his arrest in that upon his arrest he was accused of exhorting a bribe as aforementioned but was somehow charged with the use of abusive language and malicious damage to property in that whilst being transported from his duty station in TY to Maseru he allegedly kicked and damaged the dashboard of the vehicle he was travelling in and hurled insults at the Police Officers arresting him - He was charged for the said offence, found guilty, convicted and sentenced - He, however, appealed his conviction and sentence successfully  - Aggrieved by the conduct of his fellow Police Officers, he is before court to claim damages for: unlawful arrest and detention, pain and suffering, contumelia, current medical and hospital expenses and future medical expenses - Court awards damages it deems reasonable in the circumstances of his case.

 

ANNOTATIONS

 

Cases cited

 

Lesotho

 

Commissioner of Police and Another v Rantjanyana (2011) LSCA 42

Lesetla v Commissioner of Police and Another C of A CIV/31/ 2014

Letséla Morobi v Commissioner of Police and Another CIV/T/230/2010

Liphapang Limema v Commissioner of Police and Another CIV/T/407/2014

Liteboho Leuta v Kobe Motors (Pty) Ltd (CIV/T/412/2018) [2019] LSHC 46

Machaha v Sekopo and Others CIV/T/340/2000 (unreported)

 

Masupha v Commissioner of Police and Another CIV/T/149/2005 (unreported)

 

Moeketsi Sello v Candy Ratabane Ramainoane and Another 1999 - 2000 LLR 284

 

Mosehle Molise v Officer Commanding Thaba - Tseka Police Post and 2 Others CIV/T/40/2012 [2013]

 

Naidoo v Senti (2007 - 2008) LAC 161

National University of Lesotho and Another v Thabane LAC (2007 - 2008) 476

Officer Commanding Mafeteng Police Station and 2 Others v Ts`olo Tjela C of A (CIV) No. 45 /2020

 

Other jurisdictions

 

South Africa

 

Hulley v Cox 1923 AD 234

Minister of Safety and Security v Seymour 2006 (6) SA 320 SCA

National Employers’ General Insurance Co., Ltd v Jagers 1984 (4) SA 437 (E)

Pitt v Economic Insurance Co., Ltd 1957 (3) SA 284 (D)

Protea Assurance Co., Ltd v Lamb 1971 (1) SA 530 (A)

Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie and Others 2003 (1) SA 11 (SCA)

 

United Kingdom

 

McArdle v Egan (1933) ALL ER 611

 

Zambia

 

Attorney General and 3 Others v Phiri Appeal No.161/2014 (2017) ZMSC 63 (29 June 2017)

Richman Chulu v Monarch (Z) Ltd (1983) ZR 33

 

Literature cited

 

 

Clerk & Lindsell on Torts 20^th ed., Sweet & Maxwell, London, 2010

LAWSA Vol. 14, 3^rd ed., Part 1

Luntz H., Assessment of Damages for Personal Injury and Death, 3^rd ed., Butterworths, 1990

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

KHABO J.,

 

Introduction

 

[1] This is an action in which the Plaintiff, a Police Constable is claiming damages for unlawful arrest and detention, pain and suffering, contumelia, current medical and hospital expenses and future medical expenses following an incident that took place at or near Orlando Off Sales in the Teyateyaneng (TY) central business district (CBD) on 19^th January, 2013 whereat he was arrested by fellow Police Officers on suspicion of attempting to extort a bribe from the wife of a suspect telling her that he had kidnapped his husband and demanding a ransom.

 

Background to the dispute

 

[2]  Events leading to this dispute date from 10^th January 2013 when one Fana Mthombeni, a South African citizen was incarcerated in the holding cells at the TY charge office. The Plaintiff cum PW 1 testified that as he took out suspects to prepare their meals on the day, Fana asked to borrow his cell phone to inform his next of kin of his incarceration. He helped him. He indicated that following this, he received a call on 18^th January 2013, from a woman identifying herself as Mamthombeni Fana, also a South African citizen informing him that she will be coming to Lesotho from South Africa the following day and that she will need his assistance for directions to the Berea Correctional facility upon arrival.

 

[3]   As planned, Mamthombeni arrived in TY on 19^th January 2013, and called him to meet up so that he could assist with directions. Plaintiff’s testified that upon approaching the vehicle Mamthombeni was in, and whilst introducing himself, he was suddenly struck by a rifle muzzle by one Police Constable Mokole, assaulted repeatedly and subjected to torture by his other colleagues, that he fell  down at some points, and on attempting to get up, he would be further bashed on the forehead by Police Constable `Mota who was using a butt of a pistol/short gun, leading to the loss of consciousness for a while.

 

[4] He further testified that he bled profusely because of the bodily injuries he sustained, was handcuffed, shoved in the boot of a Toyota Corolla sedan in the presence of several onlookers. In proofing the extent of his injuries, he handed in a medical report, marked and it was marked exhibit “A.”

 

[5] It was further his testimony that after a while, he was taken out of the boot and ordered to sit at the back seat and driven to Police Headquarters in Maseru. That whilst en route to Maseru, P/C `Mota kept on hurling insults at him and assaulting him. That upon arrival at the Police Headquarters in Maseru, he was ordered to sit in the reception area whereat he was humiliated in front of his colleagues called a thief, a hijacker, a kidnapper and an abomination to the police service.

 

 [6] He related that around 20:00 hours he was taken to the toilets where he was assaulted by Mokole and `Mota with blunt objects and ordered to drink flush water. He testified further that he was kept in police custody until Monday, 21^st January, 2013, without a charge. He says he now suffers severe headaches; nose bleeding and his left eye is constantly in pain. Plaintiff’s version of events was corroborated by three witnesses, Reentseng Matela (PW 2). Pakalitha Morolong (PW 3), and Sechaba Mokonyana (PW4)

 

Reentseng Matela (PW 2)

 

[7]  Reentseng Matela (PW 2) testified that he is a member of the Lesotho Mounted Police Service and that on 19^th January 2013, he had been playing snooker with the Plaintiff, and as soon as they were done, they left to go to their respective homes and en route thereto the Plaintiff received a call, which he said was from a woman he was due to meet and he asked him to accompany him. When they arrived at the rendezvous, the Plaintiff went to a 4x4 Colt van with Gauteng Province registration letters and numbers occupied by a male driver and a woman in the passenger seat. He says the latter enquired from the Plaintiff whether he was Mr “Zoly” and he corrected her to say he was “Seobi.” He corroborated Plaintiff’s evidence that he was assaulted by fellow Police Officers upon meeting the woman.

 

[8] He pointed out that they were taken to Maseru together with the Plaintiff but in separate vehicles. He says that when they arrived at Police Headquarters in Maseru, the Plaintiff was assaulted further. He testified that they were informed that the Police are in possession of information that they were soliciting ransom from the detainee’s wife, and they were shown the money to the tune of Twenty Thousand Maloti (M20 000.00) that was going to be paid off as a ransom to release Fana. PW 2 said he denied the allegations levelled against them and tried to put his side of the story, which he says his colleagues would have none of it. He says he was released from detention around 23:00 hours and ordered to report back the next day at 08:00 hours, but the Plaintiff remained in custody.

 

 

 

Pakalitha Morolong (PW 3)

 

[9]   He testified that he runs a barber shop, and on 19^th January, 2013 whilst at his workplace two men came into the shop each carrying a bottle of liquor and they offered to buy them their stuff, which they accepted. He testified that suddenly the men rushed out leaving behind their drinks. Curious, they also rushed out to find them beating and insulting the Plaintiff. He says the latter was bleeding and was ultimately put in a boot of a white Corolla, later taken out and the car drove off.

 

Sechaba Mokonyana (PW 4)

 

[10] Sechaba Mokonyana (PW 4) testified that sometime in January 2013 around 07:00 hours he was passing by a place called the Capital, in the TY CBD when he noticed a large group of people rushing towards Orlando Off sales, and he too rushed there and upon arrival, he saw a parked car, noticed some men standing with a woman. He says he later came to know the men as the Plaintiff and one Matela, others he says he never got to know.

 

[11] One of those men who he says he did not know assaulted the Plaintiff with a gun to the point of him falling into a culvert and the woman kept on screaming. He says one of the men subsequently handcuffed the Plaintiff and shoved him in the boot of a car, while hurling insults at him, but was later taken out of the boot and sat at the back seat, and the car drove off towards Maseru.

 

Defence case

 

Lance Seargent `Mota (DW1)

 

[12] The defence called only one witness, Lance Seargent `Mota (DW1) who testified that on 09^th January 2013, whilst on duty, he received a phone call from one Mamthombeni Fana, a South African citizen who claimed that a person who later was identified as Plaintiff was requesting ramson from her claiming that he had kidnapped her husband. He indicated that they made arrangements that Mamthombeni come to Lesotho to meet the Plaintiff as agreed, and they set a trap for him.

 

[13] He testified that on 19^th January, 2013, Mamthombeni arrived as agreed and they left Maseru for TY with his colleagues with her in her vehicle. That upon arrival at TY they alighted leaving her to go to the agreed meeting place on her own. Whilst keeping watch, the Plaintiff arrived with two of his squad mates.

 

[14] It is further his testimony that the Plaintiff approached Mamthombeni’s vehicle very angry and charged to assault her whilst hurling insults at her, and they intervened to subdue him. He admitted that they carried rifles but denied ever assaulting the Plaintiff. Explaining away the bruises, he indicated that they could have been from Plaintiff’s kicking and hitting the dashboard with his head as he was being transported to Maseru. When asked under cross examination why the medical form reflected signs of assault, he said it could have been from when they were trying to subdue him.

 

Plaintiff’s claim

 

[15] Aggrieved by Defendants’ conduct, Plaintiff is before this court to claim payment of damages in the sum of One Million, Nine Hundred Thousand and Five Hundred Maloti (M1 900 500.00) broken down as follows:

 

1. Three Hundred Thousand Maloti (M300 000.00) for unlawful arrest and detention;

 

2. Four Hundred Thousand Maloti (M400 000.00) for pain   and suffering;

 

3. Seven Hundred Thousand Maloti (M700 000.00) for contumelia;

 

4. Five Hundred (M500.00) Maloti for current medical and hospital expenses;

 

5. Five Hundred Thousand Maloti (M500 000.00) for future medical expenses;

 

6. Costs of suit; and

(g)  Further and or alternative relief.

 

Instituting the claim

 

[16] The Plaintiff testified that following his arrest he was charged with the use of abusive language and malicious damage to property on 31^st May, 2013 in CR 155/13. He was convicted and sentenced but successfully appealed to the High Court in CRI/0003/15 wherein the conviction and sentence were set aside his fine was refunded to him.

 

[17] He subsequently instituted CIV/APN/106/2020 in which he sought condonation for the late filing of summons against Defendants over the incidents of 19^th January, 2013 which was granted on 19^th February, 2021 and paved way for the present proceedings wherein he is claiming damages. As aforementioned, he has laid a claim for unlawful arrest and detention, pain and suffering, contumelia, current medical and hospital expenses and future medical expenses which will be addressed seriatim.

 

Unlawful arrest and detention

 

[18] Under this heading, the court must establish whether on the evidence tendered, the Plaintiff has made out a case for unlawful arrest and detention. According to the learned authors Clerk & Lindsell on Torts[1] the tort of false imprisonment is established on proof of: (1) the fact of imprisonment; and (2) the absence of lawful authority to justify that imprisonment.

 

[19] The court held further in the same case that:[2]

 

Where what is in issue is whether the arrestor had reasonable grounds of suspicion, it is for the judge to rule on whether there were such reasonable grounds, as in an action for malicious prosecution, but the burden of proof is different. Whilst in an action for malicious prosecution the onus is on the plaintiff to prove the absence of reasonable cause, in an action for false imprisonment the burden lies in the defendant to justify the arrest. He must prove affirmatively that he acted on reasonable grounds.

 

[20] In the same vein, it was held in McArdle v Egan[3] that:

 

In an action for false arrest, the defendant is entitled to judgment if he proves that at the time of effecting the arrest, he had reasonable and probable cause to suspect that a crime had been committed and that the person arrested was guilty of it.

 

[21] The definition of false imprisonment, referred to as unlawful detention in our jurisdiction was succinctly captured in the case of Richman Chulu v Monarch (Z) Ltd[4] when the court held that it “only arises where there is evidence that the arrest which led to the detention was unlawful since there was no reasonable and probable cause.”

 

[22] The test is whether the Police acted without reasonable or probable cause. The court held on the assessment of damages for false imprisonment in Attorney General and 3 Others v Phiri,^[5] that:

 

The award of general damages in cases of false imprisonment must where these factors are present, always take into account the circumstances of the arrest and detention, the affront to the person’s dignity and the damage to his reputation.

 

[23] In the present case, on the information available to the Police when they arrested the Plaintiff on 19^th January, 2013 there appeared to be a cause, on the face of it, for arrest at the time. The decision to arrest him cannot, therefore, be said to have been unlawful.

 

[24] Following his arrest and detention, the Plaintiff was ultimately charged. He was charged for the use of abusive language and malicious damage to property, the latter allegedly said to have been caused by his kicking and screaming in the vehicle that was transporting him from TY to Maseru. However, being charged for something that occurred post his arrest is not proper.

 

[25]He could not have been arrested for the use of abusive language and malicious damage to property as these purportedly occurred when he had already been arrested. Clearly, this charge was an afterthought to justify his arrest. The relevant claim, in the circumstances, could have been for malicious prosecution not for unlawful arrest and detention.

 

 Pain and suffering

 

[26] Pain and suffering damages refer to an award given by the court to the Plaintiff for “the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent.”[6] These damages are not the same as compensatory damages, which reimburse the Plaintiff financially, but are meant to assist the Plaintiff with the pain inflicted by the Defendant.  

 

[27] On the question of whether the Plaintiff was assaulted or not, there are two varying versions of the same event as related by the Plaintiff and his three witnesses on the one hand, and DW1, Lance Seargent `Mota on the other for the defence. The onus rests on the on the Plaintiff to prove his case on a balance of probabilities. The general approach in such a case was laid down by the Court of Appeal in Naidoo v Senti[7] citing with approval from National Employers’ General Insurance Co., Ltd v Jagers[8] where the court held that:

 

[W]here the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken…   

 

This passage was quoted with approval in Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie and Others.[9]

 

[28] The versions are destructive of each other. Plaintiff’s evidence as well as that of his witnesses was coherent and consistent, they stood firm even in cross examination. The defence only led the evidence of one witness DW1 Lance Seargent `Mota, to the effect that the Plaintiff was not assaulted and that the bruises he suffered could have been from when they were trying to subdue him in effecting his arrest. The medical evidence, a medical form, reflects that indeed the Plaintiff was tortured. On a preponderance of probabilities Plaintiff’s version, as corroborated by PW 2,3 and 4 that he was assaulted and insulted is credible.

 

Contumelia

 

[29] This relates to loss of dignity to the Plaintiff. In ascertaining whether to award damages for contumelia, courts consider the seriousness or triviality of the insults and the extent to which the Plaintiff feels insulted. In Letséla Morobi v Commissioner of Police and Another[10] the Plaintiff who was a Pastor was assaulted by the Police. He had established that he had been humiliated in public which dented his image. He was awarded Thirty Thousand Maloti (M30 000.00) in damages for contumelia.

 

[30] The determination of damages for non - patrimonial loss as stated in National University of Lesotho and Another v Thabane[11] is a matter which lies within the discretion of the court. In exercising its discretion, the court must consider the unique circumstances of each case and award compensation which is fair to both parties. In casu from the evidence adduced, it is clear that the Plaintiff was insulted, but the gravity of the insults is not clear. It has, however, emerged that his initial assault on 19^th January, 2013 happened in full view of some colleagues and members of the public, causing a spectacle. He is a Police Constable, and just by virtue of being a Policeman, the incident negatively impacted on his image. He, therefore, deserves damages in this respect.

 

Current medical and hospital expenses and future medical expenses

 

 

[31] The Plaintiff is claiming medical and hospital expenses of Five Hundred Maloti (M500.00). He has, however, failed to submit receipts from hospital or any other medical facility. He indicated that part of the damages sought related to transport expenses, but they were also not quantified, perhaps even by affidavit. This renders the court’s work in granting the damages difficult in this respect.

 

[32] There is no proof that Plaintiff incurred these costs. The only evidence available deduced from the medical form and the medical booklet is that he consulted a medical doctor on dates stipulated. He further said that he bought headache tablets, for how much, it is not stated. The court finds in the circumstances to Three Hundred Maloti (M300.00) for medical expenses.

 

[33] Future medical costs are expenses for medical care that will be incurred in the future after litigation is resolved. They are typical in accident - related injuries. One can recover for future medical expenses if it is proven that there will be need of continued medical care because of the injury suffered, based on the estimated cost of that care.

 

[34] Future medical costs are not assessed in the same manner as past costs. Because they have not been incurred yet, they cannot be proven by medical bills. To prove future medical costs usually requires expert medical testimony. Physicians and other healthcare providers would have to testify about the medical care that a patient will require in the future because of the injuries. Such proof must include enough detail to make it possible to ascertain roughly what that future care will cost. The court declined to award damages for future medical expenses in Liteboho Leuta v Kobe Motors (Pty) Ltd[12] on the basis that the Plaintiff had not given any proof that he would need further medical attention due to the injuries sustained from the assault.

 

Quantum

 

[35] Generally, an award for damages lies within the discretion of the court, the exercise of which must ensure that the award is fair to both parties a principle enunciated in Pitt v Economic Insurance Co., Ltd [13] as well as in  Commissioner of Police and Another v Rantjanyana.^[14]A trial court will in the process be aided by previous comparable awards in the matter before it.[15] The former case was cited with approval in this court’s decision in Liphapang Limema v Commissioner of Police and Another.[16]

 

[36] Much as past decisions on damages provide a useful guide, courts have been warned about the dangers of relying too much on them. The court in Minister of Safety and Security v Seymour [17] warned that awards made on previous cases are “fraught with difficulty” as the “facts of a particular case need to be looked at as a whole and few cases are directly comparable.”

 

[37] It is also trite that each case must be decided on its own unique circumstances. This was aptly captured by my brother Monapathi J., in Machaha v Sekopo and Others[18] when he remarked that the awarding of damages “… is a mammoth task because there is no [yardstick] for measuring or determining such an amount. This court sharing the same sentiments pointed out in Moeketsi Sello v Candy Ratabane Ramainoane and Another[19] that “the question of ascertaining quantum of damages has always presented an irksome hurdle to Courts of law.”

 

[38] In respect of cases of assault and torture, the Court of Appeal in Officer Commanding Mafeteng Police Station and 2 Others v Ts’olo Tjela,^[20] stated that:

 

In cases of assault and torture, the most important factor that determines the quantum or amount of compensation is the extent of the physical injury to be established with reference to the intensity, nature and duration of the pain and suffering.

 

[39] As aforesaid, the Plaintiff has in casu prayed for a sum of One Million, Nine Hundred Thousand and Five Hundred Maloti (M1 900 500.00) in damages. I find the claim to be somewhat exorbitant given the fact that there was no evidence of expenses incurred be they current and or future, that the court finds his arrest not to have been unlawful. No evidence of receipts whatsoever, save to state that the medical report and the medical booklet reflect that he consulted a doctor.

[40] In Masupha v Commissioner of Police and Another[21] the Plaintiff had claimed damages in the amount of Hundred Thousand Maloti (M100 000.00) for unlawful arrest and imprisonment.  He had also claimed other damages to the tune of Three Thousand Maloti (M300 000.00) for medical expenses, pain and suffering, shock, and contumelia. The court awarded him Ten Thousand Maloti M10 000.00 for unlawful detention. She was also awarded M110 000.00 for the other damages.  It is significant to note that Plaintiff in this case was a woman who had been detained for about five (5) days in police custody. She had been assaulted, tortured and generally debased to the extent that she soiled herself at some point.

 

[40] The court in Mosehle Molise v Officer Commanding Thaba - Tseka Police Post and 2 Others [22] awarded the Plaintiff Fifty Thousand Maloti (M50 000.00) and Three Thousand Maloti (M3 000.00) damages for assault and for pain and suffering, respectively.

[41] This is a case in which the Plaintiff was found to have been brutally assaulted by Police while in custody on suspicion of stock theft. He was hospitalized for more than two weeks. The assault was said to be extensive. He was released without a charge. In casu the Applicant had according to the medical report, attached to the discovery affidavit, been treated as an outpatient, the degree of force inflicted on him said to be ‘moderate,’ the degree of immediate disability, none, and there is also no long - term disability.

 

[42] The apex court in Lesetla v Commissioner of Police and Another, [23] set aside the order of this court and awarded the Appellant a sum of Forty - Five Thousand Maloti (M45 000.00) for unlawful search, arrest, detention, shock, pain and suffering because of the assaults, and Thirty Maloti (M30.00) for medical expenses bringing the total to Forty - Five Thousand Maloti (M45 000.00) where he had claimed Two Hundred and Fifty Thousand Maloti (M250 000.00) for having been assaulted for an hour or so by being whipped and kicked all over the body and being suffocated with a rubber tube. As he struggled, his hands were injured by the handcuffs.

 

[43] In casu, I consider the amount of Forty - Five Thousand Maloti (M45 000.00) fair to both parties and having taken heed of Holmes J’s words as he then was, in Pitt (supra) [24] quoted in Officer Commanding Mafeteng Police Station and 2 Others (supra)^[25] when he warned courts that damages are not meant to enrich parties. He remarked that:

 

I have only to add that the Court must take care to see that its award is fair to both sides - It must give just compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the defendant’s expense.

 

On the other hand, this court cannot tolerate police brutality by any stretch of the imagination.

 

 

 

 

ORDER

 

[34]  In the result the following order is made:

 

1. The claim for unlawful arrest and detention is dismissed;

 

2. A combined sum of Forty - Five Thousand Maloti (M45 000.00) for unlawful assault, pain and suffering, medical and hospital expenses;

 

3. Interest at the current rate of 7.75 % as stipulated by the Central Bank of Lesotho;[26] and

 

4. Costs of suit.

 

 

 

                                                                                                                                               _________________                                                                                                                                                                                             

                                                                                                                                              F.M. KHABO

                                                                                                JUDGE

 

For the Plaintiff               :    Adv., S.L Malabulabu

For the Defendants         :     Adv., T.  Molise