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IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/458/2016
In the matter between:
‘MANTHATISI QHAAU PLAINTIFF
AND
COMMISSIONER OF POLICE 1st DEFENDANT
ATTORNEY GENERAL 2nd DEFENDANT
Neutral Citation: ‘Manthatisi Qhaau v COMPOL & Another [2025] LSHC 47 CIV (03 MARCH 2025)
CORAM: MOKHESI J
HEARD: 03 DECEMBER 2024
DELIVERED: 03 MARCH 2025
SUMMARY
Delict: Plaintiffs claiming damages for unlawful arrest and detention, loss of support, and burial expenses- The 1st Plaintiff succeeding only to prove damages for unlawful arrest and detention- the 2nd Plaintiff awarded damages for burial expenses.
ANNOTATIONS
Legislation
Constitution of Lesotho 1993
Books
Francois du Bois et al Wille’s Principles of South African Law 9 ed.
Visser et al Visser & Potgieter Law of Damages 3rd ed.
Cases
Lesotho
Officer Commanding Roma Police and Others v Khoete and Another LAC (2011-2012) 309
Commissioner of Police and Another v Rantjanyana LAC (2011-2012) 140
Thapelo Liau v Commissioner of Police and Another CIV/T/541/2011 (unreported) dated 13 September 2018
South Africa
Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A)
De Klerk v ABSA Bank Ltd 2003 (4) 315 (SCA)
Evins v Shield Insurance Co. Ltd 1980 (2) SA 814(A) 839)
Minister of Law and Order v Hurley 1986 (3) SA 568 (A)
Old Mutual Life Assurance Co. Ltd v Swemmer 2004 (5) SA 373 (SCA)
Rabinovich and Others N.N.O v Med: Equity Insurance Co. Ltd 1980 (3) SA 415 (W)
Road Accident Fund v Monani and Another 2009 (4) SA 327 (SCA)
Tsose v Minister of Justice and Others 1951 (3) SA 10
Transvaal Agricultural Union v Minister of Agriculture and Land Affairs 2005 (4) SA 212 (SCA) 226F
JUDGMENT
[1] In this action the plaintiff issued out summons against the 1st defendant- the 2nd defendant is sued nominally- in terms of which she claims the following:
“(a) M100,000.00 (One Hundred Thousand Maloti) for pain and suffering resultant from the assaults perpetrated upon her by the agents of the Lesotho Mounted Police Service.
(b) M50,000.00 (Fifty Thousand Maloti) for contumelia.
(c) M200,000.00 (Two Hundred Thousand Maloti) for loss of support and burial expenses occasioned by the unlawful killing of her late husband, Telang Qhaau.
(d) Costs of suit at the attorney and client scale in the event of opposition.
(e) Further and/or alternative relief.
(f) M30,000.00 (Thirty Thousand Maloti) for unlawful arrest and detention.”
[2] The plaintiff’s case is based on the evidence of two witnesses, the plaintiff and her father-in-law, while the 1st defendant’s case is based on the evidence the of three witnesses, two police officers and one civilian.
[3] Plaintiff’s Case
PW1 `Manthati Qhaau testified that she is the widow of the deceased Telang Qhaau who died while in the custody of the police in 2016. They had by then been married for three years. It was on Thursday 17 March 2016, when she left her maternal home at Sea Point to go to Lithabaneng where she stayed with the deceased at the rented flats. It was raining. It was during the day when the deceased arrived at Lithabaneng. He had a wound under one of the knees. He appeared to have been assaulted. She said the deceased told her that he was in pain and that his ribs were sore. He told her that he had been assaulted by the police officers at Maseru Central Police Charge Office.
[4] She told the court that after giving the deceased painkillers they spend the whole day indoor until at 19hrs00 when uniformed and plain-clothes police officers arrived at her place. They were three in number. When they arrived, they kicked the door open and entered. One of the officers was carrying a knobkerrie which he used to assault the deceased, while she was assaulted with a wire clothes hanger. The deceased was beaten all over the body with the knobkerrie. The police searched the room and took clothes and some other items including a M400.00 cash. She identified two police officers by the name of Tefang ‘Makhoana as they grew up together at Sea Point and police officer Ntlatlapo as the one who was assaulting the deceased with a knobkerrie.
[5] They were both taken to the police station in a police van. It was around 21hrs00. At the Maseru Central Charge office, the deceased laid on the floor in the passage. She was locked up in the cell without being told why she was arrested and detained. She spent the night in the police holding cells. In the morning on the 18 March 2016 the police officers on duty could not tell her the whereabouts of the deceased, until during the day when police officer ‘Makhoana (DW2) arrived and informed her that the deceased was in a bad shape and had been admitted into the intensive care at Queen ‘Mamohato hospital (Tšepong). He left after locking her up with the undertaking that he would negotiate her release. She was only released on 19th March 2016. In the holding cells, P/C Ntlatlapo assaulted her with a sjambok on her back. She told the court that P/C Ntlatlapo told her that he was assaulting as her mother had asked him to discipline her. She said she suffered a terrible pain as she was being assaulted. Upon her release, the police took her to Lithabaneng where she stayed, took her clothes and took her to her mother’s home at Sea Point. Later that Saturday the police returned and told her that her husband passed on at Tšepong. She telephonically called (PW2) her father-in-law who was in Qacha’s Nek to inform him about the deceased’s death. The deceased was later identified before post-mortem examination was performed. At the time of his death, the deceased was a breadwinner working as the street vendor. She was unemployed and depended entirely on the support of the deceased. She incurred expenses related to the burial and other incidental matters. As she was fearful of the investigators, she went to Qacha’s Nek where she sought medical attention. The medical form which had been filled out with the doctor’s observation disappeared in the custody of police officer Kolo, who was officer commanding Qacha’s Nek police station at the time, after he requested it following her and PW2’s complaint to police authorities about the death of the deceased.
[6] Under cross-examination the plaintiff acknowledged that the deceased told her that he escaped from police custody after he was arrested. It was put to the witness that the deceased was assaulted by the criminals who helped him escape from police custody and that the assaults took place at Lepereng, and further that P/C Ntlatlapo would testify about this. The witness denied any knowledge of this incident. She said she did not know the police officer who assaulted her with a clothes hanger. When the witness acknowledged that she did not say anything about being assaulted on the thighs by P/C Ntlatlapo contrary to what she pleaded in the declaration, it was put to her that it was because she was fabricating a story about him. She denied that she was fabricating a story. It was put to the witness that it was not true that the deceased was a street vendor and that P/C Ntlatlapo will testify that he made a living by robbing people. The witness was steadfast in her position that the deceased was a street vendor. She was also questioned on how she came up with the amounts she was claiming as damages as she did not hand in any proof. She replied that the money was for the expenses she incurred.
[7] PW2 was Mr Tšokolo Qhaau, the plaintiff’s father-in-law who testified about how he got to know about the death of the deceased, and the steps he took in the quest to find the truth about what led to his death. His journey let him, in the company of PW1, to the offices of Police Officers Kolo and Mapola. It was in his encounter with the latter he opened a docket into the death of the deceased. He was taken to the Lesotho Funeral Mortuary where he identified the deceased. He incurred expenses associated with the burial of the deceased. He paid M5,040.00 in mortuary expenses when transferring the deceased rom Lesotho Funeral to MKM Mortuary: He bought a coffin for M5,300.00 at MKM: He incurred transport costs travelling between Qacha’s Nek and Maseru in the amount of M3,570.00: He bought a cow for M10,000.00 and four wither sheep each for M1,500.00 for the burial and associated customary rituals. In total the animals cost him M16,000.00: Grocery for the funeral at M3,426.00: For ho roala thapo ritual and for the removal of the mourning clothe the costs were M2,587.00 and two blankets for M1900.00 and other items associated with the rituals for M2,587.80. This is the plaintiff’s evidence.
[8] Defence case
As stated already the defence case is based on the testimony of two police officers and one civilian. DW1 Police Constable (P/C) Ntlatlapo’s evidence is to the effect that as the investigator he was on the trail of certain suspects who included the deceased who were suspected of committing crimes. They got information that the suspects were drinking beer in one of the shacks around Maseru Bus stop area. He was in the company of P/C Thebe and P/C ‘Makhoana (DW2). When they approached the shack in which the deceased was, commotion started as people began fleeing in different directions after he introduced himself to the owner of the shack. As the suspects were fleeing, members of the public assisted the police in apprehending them. The deceased was apprehended and assaulted by members of the public and he had to intervene and stop them from further assaulting him. The deceased was lying down full of blood. DW1 flagged a government vehicle which was driven by DW3 to help with transporting the deceased, who was alive then, to Maseru Central Charge Office. With the help of the public, they also arrested another suspect by the name of Teboho. As the suspects were injured, when they got to the police station, they had to fill in the forms to take the arrestees to hospital. The deceased was left sitting outside while Teboho was being processed in the office by the police. When the witness went outside after concluding the administrative work in relation to Teboho, he discovered that the deceased had disappeared.
[9] Following his disappearance they went about looking for him. A hawker who plays trade nearby the police station told them he saw a person fitting his description get into the vehicle through the rear gate. On the next day their informer told them that the deceased was at Lithabaneng. They went to the rented flats where he was said to be hiding. They broke the door of the room and got in after the landlord had given them permission to. When they entered, the witness was in front and was met by a crying woman. After pushing her aside he saw a person covered in a blanket and when he got closer, he identified the person as the escaped detainee. The deceased looked “worse” as he looked like he had been assaulted. He deceased was unable to speak. When they searched the house “there were guns,”, police uniform, handcuffs, foot cuffs and spray guns. They took the deceased and PW1 to the Central Charge Office, and immediately after that he took the deceased straight to Tšepong hospital. At the hospital they were told that the deceased had passed on as they delayed to bring him to the hospital. The witness denied ever assaulting the plaintiff with a steel hanger and a knobkerrie.
[10] Under cross-examination, he stated that the deceased might have escaped through the rear side of the shack which was made out of sale and boxes. Him and DW2 (‘Makhoana) arrested Teboho with the help of members of the public, while P/C Thebe arrested the deceased in the same manner. He found the deceased lying down bloodied and he assisted him to get up. A question was put to him to what he would say if Thebe said he dispersed the mob by firing a warning shot. The witness said he would not dispute that. He said that the deceased was injured when they got to the Charge office and was limping. Even though the witness said the plaintiff was their informer, he kept her in police custody for two days because of the property they recovered where she stayed and because she asked to be incarcerated for her own safety as she feared being attacked by other suspects. During re-examination he stated that he did not leave the deceased unattended while at police charge office, but with DW2 (‘Makhoana) and P/C Thebe did.
[11] DW3 P/C Tefang ‘Makhoana was one of the investigators in a case in which the deceased was suspect. After being informed by the victim that the suspects were spotted in a certain shack at the Bus stop area, they went there. He was positioned just behind the shack while P/C Ntlatlapo and P/C Thebe introduced themselves. The people who were inside the shack started fleeing. Two of them emerged from the rear of the shack and he gave a chase to one of them, who vanished among the taxis. He went back to the shack where he saw people with sticks, some distance from the shack, assaulting a person. He saw P/Cs Ntlatlapo and Thebe trying to stop the mob from assaulting that person. The deceased had been assaulted by the mob. P/C Ntlatlapo asked for help from a passing Government vehicle to ferry the arrestees to the Central Charge Office. The deceased complained about a broken leg. As P/C Ntlatlapo was looking for medical documents to the take the deceased for medical attention, the latter asked to be placed outside in an open space. The witness left for Vodacom to request phone call printouts. The deceased sat outside the offices. When he returned, he was told that the deceased had escaped.
[12] The witness told the court that they got information that he was at Lithabaneng. They found him there after opening the door with the key, which was provided to them by the landlord. When P/C Ntlatlapo entered the house, he was standing guard outside, next to the door. He knew the plaintiff. The deceased “was in a bad condition.” He told the court that he was told by the PW1 that the deceased was assaulted by one Ratlali for suspecting that he revealed information of their crimes to the police. The witness further told the court that the plaintiff asked to be incarcerated as she feared being attacked by the same Ratlali.
[13] During cross-examination he stated that the deceased, on being arrested for the first time, arrived at Central Charge Office badly injured. The witness said that although they found certain property at the plaintiff’s house that was not the reason she was arrested and kept in detention. All this time he knew that plaintiff was from Sea Point. The witness confirmed that at Bus stop area when he arrived the deceased was already lying on the ground. He did not know what happened to him. DW2 said he did not see P/C Ntlatlapo assaulting the plaintiff with a hanger and the deceased with a knobkerrie.
[14] DW3 was Mr Klaas Hato who is a driver at the Labour Court. On 16 March 2016 as he was driving past Lepoqong Bus stop he saw P/C Ntlatlapo. The latter flagged him to stop and asked for help transporting a person who was assaulted by the mob. He took a person to Maseru Central Charge Office. This witness was not cross-examined, and he was the last defence witness.
[15] Joinder of Mr Tšokolo Lawrence Qhaau as the 2nd Plaintiff.
During closing addresses when it became apparent that one of the claims against the defendant, that is, burial expenses would fail only for the reason that the plaintiff’s father-in-law Mr Tšokolo Qhaau is the one who incurred them, the court suggested to both counsel that the said Tšokolo Qhaau should be joined as the 2nd Plaintiff to avoid multiplicity of actions and for the purpose of convenience and equity. The said individual is one of the witnesses for the Plaintiff and would not occasion any prejudice to the Defendant. I then requested Counsel to file heads of argument on the propriety of this suggestion. Only counsel for the 1st Plaintiff filed his supplementary heads of argument. Counsel for the defence, Advocate L. Tau, did not, for reasons better known to herself did not file hers even though she seemed strongly opposed to this suggestion. I find her conduct quite unacceptable. I am indebted to the Plaintiff’s Counsel Mr P. Lebakeng for his submissions in this regard.
[16] It is trite that a joinder of necessity is made when the party wishing to join in the proceedings has a direct and substantial interest in the subject matter of the action which may be affected prejudicially by the order which the court may ultimately make (Transvaal Agricultural Union v Minister of Agriculture and Land Affairs 2005 (4) SA 212 (SCA) 226F 227F; Old Mutual Life Assurance Co. Ltd v Swemmer 2004 (5) SA 373 (SCA) at 381 C-D); Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 659).
[17] On the other hand there is a joinder of convenience, in terms of the common law is done on the grounds of convenience, equity, saving of costs and avoidance of multiplicity of actions. The court has a discretion in this regard especially where the action has already commenced. A person is joined for convenience where there is a legal claim between the person to be joined and the plaintiff or defendant. In such circumstances the court will regard joinder as being in the interest of justice that it be allowed. (Rabinovich and Others N.N.O v Med: Equity Insurance Co. Ltd 1980 (3) SA 415 (W) at 419E). For reasons of convenience and avoidance of multiplicity of actions, Mr Tšokolo Qhaau is joined as the second Plaintiff in the present matter. It is in the interest of justice that he be joined because he has already testified and was not cross-examined by the defence counsel. His evidence stands uncontradicted. It would occasion unnecessary legal costs for him to institute fresh proceedings to claim that which is undisputed.
[18] Evaluation of evidence and discussion.
Dependant’s claim of damages on account of the breadwinner’s death
Due to the high premium which our Constitution places on the sanctity of life, its deprivation is tightly circumscribed in terms of Section 5 thereof, with regard to the use of police power. In terms of Section 5 of the Constitution of Lesotho 1993 a person may not be regarded as having been deprived of his life unconstitutionally if he dies in the course of the police using necessary force in order to effect a lawful arrest or to prevent the escape of a person lawfully detained. The onus therefore is on the police to show on the balance of probabilities that their actions were justified in the circumstances (Officer Commanding Roma Police and Others v Khoete and Another LAC (2011-2012) 309 at 311 D-E).
[19] The remedy of the claim for the loss of a breadwinner is available to the dependants of the breadwinner who have suffered loss of income because the latter was killed or injured by the defendant. The claimant must firstly fall into the recognised categories of person who may claim, such as a spouse, and secondly, the plaintiff must establish that he/she is in need of support and that the deceased was in a position to provide it (Francois du Bois et al Wille’s Principles of South African Law 9 ed. p.p 1112-1113: Evins v Shield Insurance Co. Ltd 1980 (2) SA 814(A) 839).
[20] The computation of award in a claim of the dependants is two-fold: Firstly the court has to determine what the deceased would probably have earned had he not died, and secondly, where there are more than one dependants, the court must distribute the equivalent of the lost income between the dependants (Road Accident Fund v Monani and Another 2009 (4) SA 327 (SCA) para. 3).
“A breadwinner’s lawful net annual income over the period of maintenance must be estimated on evidence as to inter alia the following: actual earnings at the time of death, nature of work, capabilities and prospects. Other benefits in addition to the breadwinner’s salary must also be considered.” (Visser et al Visser & Potgieter Law of Damages 3rd ed. p. 481).
[21] This case is characterized by lack of medical evidence with regard to the 1st Plaintiff and the deceased. No post-mortem report or other medical evidence was handed in. The 1st Plaintiff identified the body of her husband before post-mortem could be performed but left immediately to hide from the police. She did not see the post-mortem report afterwards. However, be that as it may, the 1st Plaintiff came across as a largely truthful witness. She testified on the matters she observed and had full first-hand account of. The deceased was arrested by the police at the Bus stop and the police’s evidence that he was arrested with the help of the members of the public who even assaulted him until they intervened is uncontradicted. What is also uncontradicted is that the deceased was arrested and taken to the police station still alive and was left outside the office as he requested to be left in the open area. He escaped from custody and went to Lithabaneng. It was put to the 1st Plaintiff that P/C Ntlatlapo would testify that the deceased escaped with the help of other individuals who were his co-criminals, but when latter testified nothing of this sort came out, and it was not surprising that he did not attempt to say this was the case because there was no evidence of it ever occurring.
[22] When the deceased escaped from police custody through whatever means he employed he had been assaulted by the members of the public. He hid himself at his rented house at Lithabaneng until the police found his whereabouts the next day. He was still alive when they found him out. The 1st Plaintiff testified that P/C Ntlatlapo assaulted the deceased with a knobkerrie, but this should be seen in the light of the testimony of P/C Ntlatlapo which is to the effect that when they arrived at the deceased’s place, they found the deceased lying down, worse than when he escaped from custody as “he appeared to have been assaulted. This time he could not speak. He could not raise his head.” His testimony appeared to suggest that the deceased was not assaulted in the manner that he found him when he escaped from police custody. This was hardly surprising and was in line with the version of the defence that was put to the 1st Plaintiff that the deceased was kidnapped and assaulted by his fellow criminals. It is common cause that no evidence to this effect was adduced.
[23] If it is true as P/C Ntlatlapo’s would have this court belief that when they recaptured the deceased he was ‘worse’ as he could not speak then one wonders why he was not taken straight to the hospital to receive medical attention. Any reasonable police officer would have taken this measure to avert loss of life. Instead, they went with him to the police station where they spend some time before taking him to hospital. To me this attitude suggests that it is untrue that they found the deceased worse than when he escaped from custody.
[24] From the testimony of P/C Ntlatlapo it was clear that when the deceased got to hospital, he was already dead. It is common cause that he could walk himself into the hospital; he was on a trolley and a short while after being handed over to the hospital staff P/C Ntlatlapo was called in by the doctor who told him that they delayed in bringing the deceased to hospital. Surely something happened between being arrested and being taken to hospital already dead, and whatever happened occurred from his arrest and in the custody of the police. I find P/C Ntlatlapo not to be credible as regards what led to the death of the deceased. If it is true that the deceased was assaulted by fellow criminals who feared their cover being blown by his arrest P/C Ntlatlapo would have testified to that and the defence would have brought evidence to that effect. But what is problematic is that this is the defence version as put to the 1st Plaintiff. I am inclined to belief the 1st Plaintiff that the deceased was assaulted by the police. It is probable that he was assaulted by the police as they were angered by his escape and the fact that at his home, they found ammunition and police uniform. Their brute acts led to the tragic death of the deceased. The defence’s version that he was assaulted by his so-called fellow criminals is merely a fabrication which was meant to shield the police from their callous acts of assaulting him upon his re-arrest. The defence case is shrouded in mystery as to when the deceased was taken to hospital, and it is not surprising because they are pursuing a narrative which says the deceased was taken to hospital immediately after being re-arrested.
[25] The 1st Plaintiff satisfies the requirements of this claim; she is the spouse of the deceased; she is in need of support and that the deceased was in a position provide it. What, however, is the problem with the 1st Plaintiff’s case is that there is no evidence upon which the computation of the award can be done. There is no evidence of the deceased’s income as the hawker from which his lawful annual income can be estimated. There is lack of the actual earnings at the time of his death, his capabilities and prospects. If this crucial piece of the parcel is lacking, the computation of damages is a virtual impossibility. It is the 1st plaintiff who should provide evidence of her husband income and if this is not forthcoming this court will not attempt to assess loss and will instead order absolution from the instance (De Klerk v ABSA Bank Ltd 2003 (4) 315 (SCA) at 323).
[26] Unlawful arrest and detention
Unlawful arrest and detention of the 1st Plaintiff is not in debate. She was detained for two days without being charged. The reasons which the defence witnesses (P/C Ntlatlapo and P/C ‘Makhoana) gave for arresting and detaining her are inherently contradictory at best. They both told the court that she asked to be kept in detention as a form of protection against the deceased’s assailants. While in the same breadth P/C Ntlatlapo said he arrested and kept her in detention because of the items they found in her rented room. If the investigators are this much at cross-purpose the only inference one can reasonably make is that there was no reason for arresting her. The suggestion that the Plaintiff asked to be kept in detention for her protection is completely fantastic and can safely be rejected as implausible. Equally the other reason which P/C Ntlatlapo gave should be rejected as the 1st Plaintiff was never charged for committing any crime. She was detained for two days unlawfully. Her arrest was clearly not for purposes of bringing her before court for to be ultimately prosecuted. An arrest effected for any other reason than this is unlawful (Tsose v Minister of Justice and Others 1951 (3) SA 10 at 17).
[27] Unlawful arrest, detention, contumelia, and assaults.
Although the police’s evidence is unchallenged on the issue that upon searching, the house in which they found the deceased and the 1st Plaintiff, they found police uniform, handcuffs, foot cuffs and spray guns, DW1 did not say that is the reason why the 1st plaintiff was arrested and kept in detention for two days as already seen. Although DW1 under cross-examination sought to pin down the arrest of the 1st Plaintiff to the finding of the police uniform and other items in the house in which she was arrested, that is not the reason why she was arrested because if that was the reason, she would have been brought before court for charges to be preferred against her. In fact, both DW1 and DW2 made it clear that it was not their intention, as they claimed bizarrely that 1st Plaintiff asked to be kept in detention for her own safety, an assertion which was been found to be quite implausible.
[28] In terms of Section 6 (1)(e) of the Constitution every person is entitled to personal liberty, in terms of which he must not be arrested or detained unless the peace officer is authorised by law upon entertaining a reasonable suspicion of an individual having committed, or being about to commit, a criminal offence. On the question of onus “[a]n arrest constitutes an interference, and it therefore seems fair and just to require that the person who arrested or cause the arrest of another person should bear the onus of proving that his action was justified in law.” (Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589 E-F).
[29] In the circumstances of this case, therefore given the conflicting reasons why the 1st Plaintiff was arrested and detained it can safely be concluded that the 1st defendant has failed to discharge the onus of proving that the 1st Plaintiff’s arrest and detention were lawful.
[30] Quantum of damages
It is trite that assessment of damages lies in the discretion of the court by having regard a number of factors such as the plaintiff’s status, reputation and the nature of damages. The court should also seek guidance from comparable cases (Commissioner of Police and Another v Rantjanyana LAC (2011-2012) 140 at 143D-G). When it comes to unjustified interference with personal liberty, “an award of aggravated damages (as opposed to punitive that are not allowed) may be justified.” (Naidoo v Minister of Police 2016 (1) SACR 468 (SCA) at para. 49).
[31] In the Rantjanyana case the respondent, a policeman of a rank of a trooper, was arrested unlawfully and detained for (3) days and was not assaulted at all. The Court of Appeal awarded damages in the amount of M50,000.00, and this was in October 2011. In the matter of Thapelo Liau v Commissioner of Police and Another CIV/T/541/2011 (unreported) dated 13 September 2018 a combined award of M70,000.00 was made to the Plaintiff for unlawful arrest and detention after being detained for 78 hours.
[32] In the present matter although the 1st Plaintiff was generally a satisfactory witness, I find it difficult to belief that she was assaulted with a clothes hanger because contrary to her pleaded case under cross-examination she said that she did not know who assaulted her with a hanger. There is no medical or other evidence that she was assaulted. In her declaration she pleaded that P/C Ntlatlapo whipped her on her thighs, but she did not mention this when testifying in chief. In the absence of any objective evidence that she was assaulted, the claim for pain and suffering resulting from assaults has not been proved as well as contumelia. In the result, a fair compensation to be awarded to the 1st Plaintiff is the amount of M150,000.00 for unlawful arrest and detention.
[33] A claim for burial expenses
The 2nd plaintiff’s claim for burial expenses is not controverted. The expenses he incurred were as follows:
-
Mortuary expenses = M10,340.00
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Transport = M3,470.00
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Animals = M16,000.00
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Grocery and other essentials = M7,913
Total = M23,423.80
[34] In the result the following order is made:
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The 1st Plaintiff’s claim for assault is dismissed
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The 1st Plaintiff’s claim for contumelia is dismissed.
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The 1st Defendant is absolved from the instance against the 1st Plaintiff’s claim for loss of support.
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The 1st Plaintiff is awarded compensation for unlawful arrest and detention in the amount of M150,000.00.
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The 2nd Plaintiff is awarded an amount of M23,423.80 for burial expenses incurred.
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The Plaintiffs are awarded the costs of suit.
______________________
MOKHESI J
For the Plaintiffs: Mr P. Lebakeng from Rasekoai, Rampai and Lebakeng Attorneys
For the Defendants: Adv. Tau from the Attorney General’s Chambers