HIGH COURT OF LESOTHO
HIGH SCHOOL Defendant
by the Honourable Mr. Justice T. Monapathi on the 3rd day of
matter came before me on application for default judgment. The
Defendant had been served with summons on the 8th May 2001. There had
since been no response to the summons whatsoever. The matter was
accordingly set down for the motion Court on the 6th August 2001.
6th August 2001 the Plaintiff having given evidence as PW 11 ordered
that the matter be postponed to the 20th August 2001 to enable Mr.
Nteso to address me on the viability of some of the Plaintiffs
claims. That he did and supported his arguments with heads of
argument which went so long way to assist the Court.
Plaintiff had claimed for the following orders:
for unlawful suspension
for malicious prosecution
For loss of earnings
for loss of capital
for loss of furniture
and/or alternative relief.
Plaintiff who had been a teacher at the Defendant's school since
1996. She was suspended from teaching at that school from August 1998
to February 2000 she has in that month since returned to work. This
was after a decision of the Adjudicator of the Teaching Service of
the 7th December 1998.
the Plaintiff says under oath that no reasons were given this was
contrary to the brief particulars given in her declaration. Although
(brief as it was) it was not consistent with the larger story
contained in the Adjudicator's decision in "the judgment of the
management of Mantšase High School v Retšelisitsoe
Moleko." It was clear that there were certain complaints or
charges of misconduct
the Plaintiff. It says "three counts of misconduct" I may
say that there was also one witness called by the school. To sum it
all the adjudicator says the management "lamentably failed"
to prove its case against the defaulter. And added: "I find her
not guilty and discharge her on all counts. This sounds an
understatement when one looks at the criticisms levelled at every
corner against every count that "were not properly drawn and
which did not disclose an offence." The impression is incapable
that the charges against this Plaintiff were trumped up and indeed
malicious. This I would say notwithstanding what appears as a ground
of appeal (the appeal which was not prosecuted) at (d) which says:
is submitted that the standard of proof set out in the technical form
of charge sheets or in indictment as practised in the Courts is not
required in cases of "misconduct" or "disciplinary"
whereby the standard required is merely "on the balance of
probabilities" unlike beyond a "reasonable doubt" as
in criminal cases. It is more probable than not that the charged
teacher has committed the misconduct as charged."
becomes what is colloquially called hot air when one has read the
adjudicator's damming reasons.
says all the losses that she incurred resulted from the loss of her
income as a result of the suspension. Meaning that she was no longer
paid her emoluments until she resumed work as aforesaid. Amongst
these losses was her furniture which was repossessed because she
could not longer keep up with instalments.
she had planned for a chicken raising project that did not take off
or was unable to take off because of her loss of income. While these
losses could possibly be attached to that loss of income I found that
they were not adequately supported by evidence nor was there proof at
all. For example to say that she intended to raise up a chicken
project without more evidence as to what the project involved. She
herself been made it is difficult to determine the actual loss or
delictual losses. Mr. Nteso fairly agreed that objectively, without
evidence it would have been difficult to make any award under this
the repossession of the furniture we were merely told that M4,000.00
had already been paid. There was nothing more than that plain
statement. I thought there should have been something to show about
the fact that there was the purchase actually made e.g. some
agreement, some invoices or a set of receipts. All this would go
towards justifying the distinction between general damages which
Counsel thought the Court could award and special damages.
that surely a default judgment cannot be a blank cheque for every
claim merely by reason of the absence of opposition. I was therefore
accordingly unable to make any award under this head.
was told that the school has already settled arrear salary which
arose only of default in paying the Plaintiffs monthly salary. Even
if I would not have found it not difficult to make an award under
that head (prayer 3), calculated as the total on every monthly salary
by all other months in which there was no payment, I would have
accordingly allow the prayer under the head. But it turned out that
the money attached to the claim for loss of earnings by the Plaintiff
was in reality loss of proceeds of two (2) insurance policies for
which Plaintiff being put out from a certain Insurance Company. This
turned out to be in the nature of maturity values and unpaid
premiums. Plaintiff said there was a causal nexus between plaintiffs
suspension and the two policies which lapsed. More about that later.
awards under claims 1 and 2 are not quite easy to justify. They were
the cause of asking Mr. Nteso to address me further on the claims
even after the Plaintiff's testimony on the understanding that the
suspension was a proximate cause of the damages under the heads
claimed and such damages were not remote in that they were caused by
the negligence of the Defendant who would have foreseen the harm of
the general kind that actually occurred, would have foreseen
general kind of causal consequences against which it could have taken
certain steps to guard against and finally that Defendant failed to
take those steps. See The Law of Delict, P O R Boberg vol. 1st
Edition page 39.
spoken about the Defendant's negligence Mr. Nteso submitted that in
the case of Russel NO, Loveday NO vs Collums Submarine Pipelines
Africa (Pty) 1975 (1) SA 1110 the term damages was defined as:
"The value estimated in money or something lost ..... the sum of
money claimed or adjudged to be paid in compensation for loss
submitted further that on the other hand the definition of damages
given in Halsburg Laws of England 3rd edition volume II para 383 and
the dicta to the same effect in Found BirsharHJab Hour v State of
Israel (1954) 1 All ER 145 at 155 and Haile Brothers SS. Co Ltd v
Young 1939(1) KB 748 at page 765 was defined as:
"damages may be defined as pecuniary compensation which the law
awards to a person for the injury he has sustained by the reason of
the act or default of another whether such act or default is a breach
contract or a touts, or put it more shortly, damages are the
recompense given by the process of law to a person for wrong that
another has done him."
mindful that in relation to that claim about lost furniture Plaintiff
has submitted that the Court had a duty to award Plaintiff specific
amount of damages. I was referred to that regard to Farmers'
Co-operative Society v Berry 1912 AD 343. I was again referred to the
dictum in Jansen v Pienaar 1881 SC 27 where it was said:
"The summons set out as infringement of a right and a right and
allege specific damages. But the moment the Plaintiff proved a wrong
- as soon as he proved the enticing away, he was entitled to some
damages though he did not prove one thing of actual damages."
In this I
would understand the judgment to mean a duty on the part of a Court
to award normal nominal. See the distinction and the distinction of
nominal damages by RG Mc Kerron in The Law of Delict, 7th edition at
page 52 and Summer v Welding 1984(3) SA 647(A). In those case my
suspicion is that this predicted on actual loss proved even if it is
difficult to estimate the patrimonial loss or value. As I have said
to question of the loss of furniture posed exceptional problems where
actual purchase itself was not proved and such other necessary
placed before Court.
have had problems in tackling the problems under malicious
prosecution. Authorities do make too subtle a distinction between
malicious prosecution and malicious proceedings as an element of
abuse of rights. P O R Boberg in The Law of Delict Vol.1 (1st
Edition) says at page 209.
"An abuse of right occurs he says when the right is prima facie
lawful. Excessive use of a right on the other hand, occurs when a
person exercises a right in the circumstances or in a manner that the
law probabilities, so that its occurs is not even prima facie lawful.
Excessive use of a right, on the other hand occurs when a person
exercises a right in the circumstances or in a manner that the law
prohibits, so that its exercise is not ever prima facie lawful. An
extensive survey leads Devine to the conclusion that the doctrine of
abuse of rights has its uses and that in South African law it applies
in the field of nuisance (the above of proprietary rights defamation,
and unjustified litigation and there is scope for its limited
extension." (My emphasis)
said in Becks Theory and Principles of Pleadings in Civil Actions
became even more helpful in his analysis of malicious procedure (page
he says at various portions of these pages:
“The wrong malicious procedure may be inflicted on another not
only by setting the criminal procedure in motion without any
reasonable or probable excuse but by setting the institution of
malicious and unfounded civil proceedings." (My emphasis)
"Malicious civil procedure may be defined as an institution by
the defendant maliciously and without reasonable and probable cause
of civil proceedings for the redress of rights which have not
existence. And in determining whether malice does or does not
existed. And in determining whether malice does or does not exist the
Court may consider what the acts would have in similar circumstances
of discretion and prudent man."
Finally (at page 259)
"(1) ..........If there is a total absence of reasonable and
probable cause the Court may inter malice from this
fact...........but in the ordinary way the plaintiff must establish
both malice and reasonable cause........"
from the statement of the Adjudicator I would have no problem that
the proceedings filed with the Adjudicator were actuated by malice.
This should be an
the claims (a) and (b) I found however that they were extremely
no doubt that there is a direct link between the loss of premiums
(failure to pay) and the malicious acts of the school. Mr. Nteso told
the Court that as soon as the payments of premiums are made the
policies can be re-instated. This meant that the Plaintiff could not
say she was entitled to the total insured sum. I would therefore
incline towards making an order that the Defendant must be sum equal
to the premiums that remained unpaid during her suspension. Mr. Nteso
estimated those two set of premiums (for two policies) as shown in
Exhibit "A" to be about M2,442.00 and M4,200.00 on the 3rd
August 2000. There should be more now. I intimated to Mr. Nteso that
he could not be sure of the insurer explaining compays on attitude
but he assured me that they would find it necessary and would be
satisfied to receive those premiums as long as they were accurately
that the Respondents action was malicious and unfair harassment and
demeaning of Plaintiff. I however observe that the more their claims
were rather inflated
result is that the Plaintiff's claim is allowed to the following
5,000.00 for unlawful suspension.
for unlawful malicious proceedings.
3. (a) An award of amount equal to all unpaid premiums for the first
policy to date.
(b) An award of an amount equal to all unpaid premiums for the second
policy to date.
amount equal to unpaid salary if same not yet paid to date.
Plaintiff : Mr Nteso for Attorneys E H Phoofolo & Co.
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