CIV/T/172/98

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

THAMAE
THAMAE PLAINTIFF

and

THE
COMMANDER (LDF) 1st DEFENDANT

THE
ATTORNEY GENERAL 2nd DEFENDANT

JUDGMENT

CORAM :
HON. MR JUSTICE

S.N. PEETE

DATE :
15th NOVEMBER 2002

Headnote

Delict - Soldiers kicking at plaintiff who had apparently assaulted a
suspected thief. Plaintiff's forearm fractured in the encounter.
Plaintiff's allegation that a tyre lever used uncontroverted by the
defendents' pleas which amounts to a bare denial. Impropriety of such
pleading where defendants' witnesses during trial admit the kicking
but seek to justify it on the grounds that plaintiff attempted to
draw a gun. Onus on plaintiff discharged on a balance of
probabilities.

2

Where general damages are seemingly inflated court has a discretion
to proportion the same to relative blameworthiness of parties and
degree of injuries suffered.

In his
civil summons the plaintiff claims certain damages from the
defendants constituted as follows:-

1. Payment
   of the sum of M50,000.00 for insults.

   
   

2. Payments
   of the sum of M100,000.00 for assault, pain and suffering.

   
   

3. Payment
   of the sum of M200,000.00 for a broken arm.

   
   

4. Costs
   of suit.

   
   

5. Further
   or alternative relief.

   
   

In his
declaration the plaintiff avers that on the 28th September 1997 and
at or near Nazareth in the area of Thaba-Bosiu, certain six members
of the Lesotho Defence Force acting within the scope of their duties
hurled insults at plaintiff and brutally assaulted him with a tyre
lever breaking his forearm in the process causing him to suffer great
pain.

To this
claim, the defendant's joint plea states-

2.

"Contents herein are denied and plaintiff is put to proof
thereof In particular it is denied that plaintiff was ever insulted
nor assaulted as alleged. The fact of the matter is that plaintiff
was in the company of two or three others at the said place,
assaulting someone whose name

3

and particulars are to the defendants unknown. The plaintiff and his
party were, together with their victim taken to Ha Matela Police Post
and handed to the police by the defendants. No assaults of any kind
were ever meted out to plaintiff in the process. "

In
support of his claim, the plaintiff who happens to be a local village
chief or headman called Likotsi Mokhethi whose evidence was to the
effect that on the early morning of 28th September 1997 there was an
attempt to steal his Toyota Hilux van at his home and upon waking up
he and his brother saw a man walking or running away whom they
recognized as Tsietsi Moahloli; they tried to catch up with him as he
ran into Ha Ntsi village. He says that he immediately reported this
interference to the plaintiff, his local chief; he says that
plaintiff then advised him to bring along his van to assist them to
quickly pursue the suspect through Ha Ntsi village.

He says
that when he got to his van, he noticed some fresh blood stains on
the driver's wheel and on door handle.

Driving
his van, he says they caught up with the suspect Tsietsi Moahloli
near Ha Raselepe. He says as they approached him, Tsietsi began
throwing stones at them and they too threw stones in return. They
ultimately caught and overpowered him after he, witness, hit him with
a stick. He says they then noticed that Tsietsi had a bleeding wound
on the head.

They then
tied him hands and feet with a rope he had been carrying along in his
van. When they interrogated him, Tsietsi explained that he had been
assaulted by someone whose business premises he had earlier attempted
to

4

burgle
that night. He says they no longer assaulted him after he had been
fastened thus with a rope.

As they
stood near Tsietsi just outside the village, they then saw about
seven soldiers alighting from a land-rover and advancing upon them
hurriedly. One of them said, "what are you doing to this man?
Are you ritualizing him?" The soldiers were wearing green
overalls and one had a white shirt and short pants.

"They started kicking us even before we replied'" and one
of them shouted "nyoa meng ting". He says the plaintiff
then said "oh, I am a chief to which

one replied "you are a chief of shit" .....and another said
"He even has a gun!"

He says
in fact plaintiff had a gun on his waist at the moment. He said they
then assaulted plaintiff breaking his arm. He says he then took to
his heels leaving plaintiff holding his injured arm and crying in
pain.

Under
cross examination he insisted that when they subdued Tsietsi, the
later already had a head injury about which he made an explanation.

Question:
The defendants will say that they told you that it had been reported
to them that you were assaulting Tsietsi?

Answer: I
don't know what caused his death. I said I assaulted him with a stick
when he threw stones at us.

5

Question:
Can you say how the plaintiff's arm was broken and his eye injured?

Answer: I
cannot say how.

Question:
Can you deny that his arm was broken when a soldier tried to disarm
him?

Answer:
That did not happen.

Question:
Did the soldiers have anything in their hands?

Answer:
They had nothing. They only kicked us also insulting us. I only
realized that plaintiff was injured.

Question:
The defendants will say that they were invited by the villagers to
rush to this place where you were assaulting this person and then
plaintiff tried to reach for his gun and a tussle ensued.

Answer:
No, I don't know who informed the soldiers. They found us doing
nothing. Plaintiff never reached for his gun. As I tried to run away
a short panted man pointed a gun at me and I immediately returned;
and I was kicked repeatedly and I found myself already in the van and
we were taken to Ha Matela police Station.

6

Under
re-examination he admitted that they were later charged with the
offence of culpable homicide for Tsietsi' death.

Plaintiff
then gave evidence on oath. He informed the court that he is aged
about 47 years and is the headman of Ha Ntsi in the Thaba Bosiu area.

He says
that he was at his restaurant on that day when P.W.1 arrived and gave
him a report about an attempted theft of his van. He then asked him
to go and fetch that van so that they could quickly pursue the
suspect.

After the
van arrived, he, P.W.1 and Motlatsi Tjokobane drove off to follow the
suspect Tsietsi and they caught up with him at Mantsa-tlala fields.
He says Tsietsi then turned to throw stones at them but they managed
to overpower him after P.W.1 had struck Tsietsi with a stick. They
then grabbed and subdued him. They used a rope to fasten him and then
started asking him why he was trying to steal P.W.l's vehicle.
Tsietsi then explained that he was going to sell it at Peka.

He says
it was at that time that he saw a military land-rover approaching and
stop near some fields- it was off the road. The soldiers then
alighted, crossed the donga and came running towards them.

Upon
arrival one said "Are you ritualizing this man? What are you
doing? He says he replied - "I am the chief7 - and they said
"you are a chief of shit.... Nyoa 'mao tooe - what are you doing
to this man "?

7

He said
he took this to be a grievous insult "It can make you faint in
extreme anger.77 He was being insulted by young soldiers before his
subjects. It was really humiliating, he says.

He says
one of them then hit him with a tyre lever on his left arm and it
fractured and he repeated to hit him on he left eye with it. He felt
grievous pain - "/ saw stars ... and something like a flying
cat" and to top it, he got another blow to his back.

He says
one of them then took away his gun from his waist. He could not
resist because his arm was fractured and his right eye closed "Both
bones of my left arm were fractured and the hand was hanging down
loosely'''

He said
it was a lie that his arm was broken as the soldiers tried to wrestle
the firearm from him [anyway this was not pleaded by the defendants].
He says he was then ordered to board the van and along the way to his
home before proceeding to Matela Police Station, they asked for his
licence and he gave it to them when they reached his place - where
another military vehicle with a mechanical problem had been parked.

They
proceeded to Matela Police Station and from there they were
transported to St Joseph's Hospital after being given medical forms;
he says as he did not receive any treatment at Roma he proceeded to
Thetsane Hospital where his arm was X-Rayed and then plastered.

He handed
in the medical report as Ex "A".

8

He also
handed in what are receipts (bills) dated 29/9/97 (M280.00) 19/11/97
(M89.00) 1/11/97 M50.00

He also
handed in photographs of himself which depict him in an armsling on
his left arm and with a bruised and swollen right eye.

He says
that his arm was under plaster for three months. He says his left arm
is now fully recovered. He says for the humiliating insults he claims
M50,000.00. He claims R100.000.00 for pain and suffering as a result
of the assaults on his body. He says:-

"I have been assaulted by law enforcement officers for no good
reason when they are trained to protect. My left arm is no longer
fully operational as I cannot use it like before and lift heavy
objects. "

Under
cross examination he says that they began throwing stones at Tsietsi
when he was trying to escape. He denied that he was in a rage when
the soldiers arrived and he denies ever reaching for his gun.

Question:
One soldier rushed at you and there was a tussle for he gun?

Answer:
It is a lie.

Question:
One soldier kicked you hand?

Answer: I
was never kicked by a soldier, I was hit with a tyre lever.

9

Question:
You were seriously assaulting the man such that he died Answer: We
were asking him questions; we had fastened him up already. Question:
P.W. 1 assaulted Tsietsi with a stick?

Answer:
Yes, he hit him with stick at the back; we were listening to his
explanations when the soldiers arrived. We were not assaulting him
then.

Question:
P.W.1 says in his evidence that the soldiers had nothing in their
hand when they arrived?

Answer: I
was assaulted with a tyre lever. I saw I when he struck me with it.

Question:
The only thing they did was kicking you?

Answer:
Lie. They never kicked me.

Question:
Only one strong kick was inflicted on you?

Answer:
That will be false.

Question:
Insults were never uttered at anytime at all?

Answer:
It will be false evidence.

10

He was
then taken to task as to how he computed and justified the amounts he
was claiming. He explained that the grievous insults he was publicly
subjected to and the excruciating pain he suffered and also punitive
damages, were the basis of his claim.

Question:
M50,000.00 and M200,000.00 you just suck them from your mouth and are
unrelated to any alleged wrongs?

Answer:
They are.

Question:
You are not entitled to damages because you were found assaulting a
man with stones.

Answer: 1
deserve these damages because we were no longer assaulting ...we did
not belabour him with sticks and stones.

Court:
Where was your gun positioned when soldiers arrived.

Answer: I
had my .38 in my holster. I had a licence for it. I carry it at all
times.

Next
called Dr Kelvin Hoedoatia who said he is a Ghanaian national and was
a general practitioner who was working at Maseru Private Hospital as
a resident doctor.

11

He was
shown the medical report Ex "A" and he immediately
recognised the handwriting at its back as his truly. He says that on
the 29/9/97 he had examined the plaintiff and had observed the
following particular injuries:-

1. a
   swelling (contusion) around the right eye.

   
   

2. The
   back was painful to touch.

   
   

3. The
   left arm had its "ulna" bone fractured and plaintiff was
   in pain. He decided to put on plaster-of-Paris after the X-Ray
   results.

   
   

He was of
the opinion that a "moderate to severe force" could have
been used to fracture the ulna like "a karate" kick whereas
a mild force could have caused the eye injury.

He
explained that medically the fractured ulna could heal after six
weeks though 100% recovery is never achieved and there could still be
some post-traumatic episodes of pain.

The
plaintiff then closed his case.

For the
defendants, Paul Mokhele Thamae was called and he informed the court
that he was member of the LDF in 1997 and that he left the Force in
October 2001.

He told
he court that on the 28/9/97 he was patrolled with the following to
attend to a breakdown at Ha Ntsi-

12

1. Private
   Leshoboro Letsie;

   
   

2. Private
   Setho Letsie;

   
   

3. Private
   Lerotholi;

   
   

4. Private
   Tokho.

   
   

They
proceeded to Ha Ntsi in a military landrover and as they were about
to reach Ha Ntsi village, a coaster-bus stopped them and its
passengers reported to them that there were some people assaulting a
man just outside the village in the fields thereby. They then hurried
to the scene.

He says
that at about 200 metres they saw four men and they were assaulting
the fifth prostrate man. One was armed with a stick.

Upon
arrival he asked them "Hey, what is happening ~ are you
ritualizing this man?" He says other men then dispersed as if
running away and that he then saw the chief pull up his shirt and

"I then noticed a gun on his waist..." 7 rushed at him and
kicked him ... I kicked him on he abdominal region. He the parried
with his hand. I kicked the hand. I cant remember which hand. As I
tried to kick him again Lerotholi grappled the chief by the waist and
"headed" him. Lerotholi then wrenched the gun and the chief
was helpless. "

After
this the other men were rounded up and made to unfasten the prostrate
man and all ordered to board the van. He says the plastic ropes had
sunken into the wrists of the man who was then motionless and was
bleeding from the head.

13

He says:-

"... in the van there was a tyre lever which had some blood
strains, "

He says that as he kicked the plaintiff none of them soldiers was
carrying any tyre lever (even though they were going to repair their
vehicle). At the Matela Police Station he says Private Leshoboro
handed in the gun and the tyre lever.

He also says from under the front seat of the van, they also found a
9mm which they also handed in to the police.

Under cross examination he asserted that he was attempting to disarm
the plaintiff...

"we were not acting in self-defence ...we only wanted to remove
the gun ...I cant deny that he could have been injured as I kicked
him."

It was put to him that in his plea it is stated:-

"No assaults of any kind were ever meted out to plaintiff"

Answer: 1 say I kicked him. He was also head-butted. I admit I
assaulted him because 1 kicked him. I agree that my evidence is at
variance from the plea ... I kicked him. Our plea does not state that
injuries were inflicted as we were disarming him.

14

Question:
Your story is a recently fabricated one. ... That is why it differs
from the plea.

Answer: I
say what happened. I am not desperately fabricating."

[The
court then asked him to demonstrate in court how he kicked at the
Plaintiff that day. He did this by a quick moving kick to the
waist/abdomen area and explained that he also had military boots on]

"As
I kicked him again, Lerotholi arrived from the side and grappled him,
and succeeded to wrench the gun away from the plaintiff"

Question:
Plaintiff never reached for his gun. It is false.

Answer:
It is not false.

Question:
Plaintiff and his party knew you were soldiers -five of you.

Answer: I
don't know if they saw we were five.

Question:
Only a foolhardy person could draw a gun on soldiers?

Answer:
There he did it.

Question:
Your evidence is a tall story. You say plaintiff's gun was handed in
at Ha Matela.

15

Answer:
It was.

He denied
ever going to Plaintiff's house before proceeding to Ha Matela Police
Station.

Question:
Did you see that his hand was injured and his eye swollen?

Answer:
No I did not see.

Question:
You assaulted him with a tyre lever and broke his arm?

Answer: I
saw no one assault him with a tyre lever.

Question:
He was never kicked. He was struck with a tyre and he was grievously
insulted before his subjects?

Answer:
We never insulted him. We only asked why he was ritualizing the man,
we disarmed him. We took it because he tried to use it unlawfully
thus committing an offence.

Question:
That is a figment of your imagination?

Answer:
He tried to use the gun as we approached to intervene.

Question:
Do you see this 38 revolver?

Answer:
Yes.

16

Question:
It was in its holster? Answer: He made as if to grab it.

Question:
When you got there you started kicking at random and used a tyre
lever.

Answer: I
said I saw one of the plaintiff's mates assaulting Tsietsi with a
tyre lever. I kicked him with my boot. I am telling he truth.

Next
called was Vincent Motseare White Lerotholi who told the court that
he was a member of the LDF since 1996. One Sunday the 28/9/97 at
about 9 am they en route to Ha Ntsi to repair a vehicle that had
broken down.

Along the
way they were stopped by a coaster whose passengers begged them to go
to the assistance of a man being assaulted in the fields.

He says
they proceeded immediately to the scene and when they approached,
they stopped their vehicle and rushed to the scene where some men
stood; as they approached other men scattered and one remained near a
man tied with ropes.

On
arrival he inquired "Are you ritualizing this man?" This
man then reached for his gun at the waist. He says one of their group
then kicked him and he dived at him grappling him. He succeeded to
wrench his gun away. It was a .38 revolver.

17

Having
rounded others up, they ordered them into the van. These people
explained that the fastened man was a thief and was fleeing.

He denied
ever insulting these men nor a tyre lever being used.

"We kicked him as we struggled for the gun ... the kicking was
justified because he was trying to draw. Makhale kicked him on the
arm:'

Under
cross examination he admitted that he had all the time through the
proceedings been sitting next to Mr Mapetla - defendants' counsel. He
admitted that the defendants' plea differed greatly with their
version in court when giving evidence. He denied head-butting the
plaintiff but that their "heads could have collided
accidentally"

Question;
D. W.I said you head-butted plaintiff?

Answer:
He could have thought so- but I know how I collided with him when I
dived and grappled his waist he had no chance of grabbing him because
I grappled him firmly. I then pulled out his gun.

Question:
There was no struggle - plaintiff was brutally assaulted with a tyre
lever - broke his arm and eye bruised?

18

Answer:
We don't know whether he had been injured before we arrived ... when
we saw them one of them ... we wanted to intervene only we were not
angry - we were provoked by seeing the gun.

The
defendants then closed their case. Facts Proven

1. On
   the morning of the 28/9/97 P.W.1 discovered that his Toyota Hilux
   had been interfered with.

   
   

2. P.W.1
   then saw Tsietsi escaping from the scene and then having secured the
   assistance of his chief the plaintiff they followed Tsietsi driving
   the Toyota.

   
   

3. As
   they caught up with him, Tsietsi began pelting them with stones,

   
   

4. They
   also threw stoned at him and P.W.1 hit Tsietsi with a stick thus
   incapacitating him and then they fastened him with plastic ropes and
   began interrogating him.

   
   

5. In
   the meanwhile, the villagers had reported the incident to soldiers
   who were passing in a landrover.

   
   

6. The
   soldiers then rushed to the scene to intervene.

   
   

19

7. Upon
   arrival, plaintiff and his mates were asked whether they were
   ritualizing the man.

   
   

7. Plaintiff
   then replied he was a chief.

   
   

7. Struggle
   ensued when the soldiers noticed that plaintiff had a gun on his
   waist.

   
   

7. The
   plaintiff incurred a broken ulna and blackened eye in the encounter.

   
   

Question
is: Was the ulna fracture caused with a tyre lever or by a kick?

The
plaintiff in this case has the onus to prove that the assault upon
him was unlawful and unjustified. It is important to note from the
outset that in their plea the defendants deny the assault but in
their evidence they admit having kicked the plaintiff. Isaacs in
Beck's Theory and Principles of Pleading in Civil Actions 1982 states
that the litigant is bound by his pleading -

"Once pleadings are filed, the parties are bound by them. If
pleadings raise certain issues and the evidence adduced at the trial
does not substantiate them, the action (or defence as the case may
be) would fail unless amendments are granted - p.35.

Van
Winsen & Herbstein - Civil Practice of the Supreme Court of South
Africa (1997) states at 464-

20

"A defendant who has knowledge of the facts alleged by the
plaintiff and is not prepared to admit them must deny them. In doing
so, he puts those facts in issue. If he fails to deny them, they are,
as pointed above, deemed to be admitted. ... a defendant must deal
specifically with each allegation contained in the plaintiff's
declaration"

In the
case of Hlongwane v Methodist Church of SA - 1933 WLD 165 De Wet J.
at 169-70 said:

"... the denial of any particular paragraph in the declaration
must not involve any ambiguity. ... the defendant must deal
specifically with each such allegation."

See also
Nyandeni v Natal Motor Industries Ltd - 1974 (2) SA 274 where Fannin
J. stated as follows :-

"The purpose of pleading is to clarify the issues between the
parties and a pleader cannot be allowed to direct the attention of
the other party to one issue and then, at the trial, attempt to
canvass another. "

This is
what happened in this case; a bare denial that assault ever took
place as alleged and now at the trial the defendants' witnesses admit
kicking the plaintiff on the arm but seek to avoid liability upon the
ground that the kicking was justified in order to disarm the
plaintiff.

21

In this
case the defendants did not even request further particulars to
enable them to plead. In my view, it is good practice that if any
explanation or qualification of any denial is indeed necessary, such
must be stated in the plea. Rule 22 (4) of the High Court Rules reads
as follows:-

"Every allegation in the declaration, which is not stated in the
plea to be denied or to be admitted, shall be deemed to be admitted.
If any explanation or qualification of any denial is necessary, it
shall be stated in the plea." (my underline)

A party
is not entitled to misdirect the attention of the other party by
failing to disclose the true reason for a denial - Nieuwoudt v
Joubert - 1988 (3) SA 84. It seems the proper pleading should not
have been bare denial but confession and avoidance specially pleaded.

In this
case, the fracture and eye injury were not self inflicted but
occurred in that encounter outside the village of Ha Ntsi.

Indeed a
contrast between the material aspect of the plea and defendant's
evidence in court affects the latter's credibility. To the special
allegation that six members of the LDF "brutally assaulted
plaintiff more especially with a tyre lever" the plea
sanctimoniously denies as follows:

"In particular it is denied that plaintiff was ever insulted nor
assaulted as alleged. The fact of the matter is that plaintiff was
found in the company of two or three others at the said place
assaulting someone whose name and particulars are to defendants'
unknown"

22

This
amounts to a bare denial, it is equivocal, elusive as well as
inelegant. It fails to address the issue; and if it was in accordance
with their true instructions as deposed to in evidence later in
court, the plea could have alleged that the plaintiff was kicked when
he was about to produce a gun holstered on his waist; the latter
version otherwise then smacks of as an after thought or at most a
fabrication.

In my
view the soldiers intervened commendably out of sense of duty as law
enforcement officials and not so much as "good Samaritans"
but they over-reacted in bringing the situation under control.

In his
evidence in chief D.W.I stated:-

"Other dispersed as if running away. The chief pulled up his
shirt and I saw a gun on his waist. I rushed at him and kicked him?''
He does not say an attempt to draw a gun was made. Any way this was
not pleaded.

This
confirms the fact that when the kicking began, there had been no
attempt, actual or apparent, to draw the gun upon the advancing
soldiers and I tend to agree with Mr Mohau that the force used was
not commensurate to any danger apparent or real. They over-reacted
and in kicking at his lower arm it got fractured. I do not believe,
though, that a tyre lever was used as deposed to by the plaintiff
because (a) this tyre lever was not seen by P.W.1 and (b) if it was
in fact used both ulna bones could have been fractured. I believe
that the kicking did the job (c) the eye injury is more consistent
with a head-butting that a strike with a tyre-lever which in my view
could have cut the skin resulting in bleeding.

23

I
therefore hold that the plaintiff has discharged the onus on a
balance of probabilities that he was assaulted unlawfully and
suffered a broken ulna and a bruised eye.

Insults

As
regards the insults and whether they were uttered on the occasion,
this is a matter that should be considered upon the real
probabilities of the case. It is indeed quite probable that when they
arrived at the scene where plaintiff and his mates stood next to
hapless Tsietsi, the soldiers were exited, incensed and probably
annoyed by the sight they saw, i.e. a injured man tied hand and foot;
they were provoked further when they saw the gun holstered on the
waist of the plaintiff. In my view, the kicking and words uttered
were contemporaneously and spontaneously done and "are
inextricably bound up by factors of time, place and circumstance ..."
Hoffman & Zefertt - The South African Law of Evidence. 4d Ed
156-15 on Res Gestae. As Wigmore puts it-

"in the stress of nervous excitement, the reflective faculties
may be stilled and the utterance may become the unreflecting and
sincere expression of one's actual impression and beliefs " -
Evidence, para 1747-49.

The
probative force that these insults were uttered depends upon the
credibility of the plaintiff and P.W.1 and the contemporaneity and
spontaneity as relevant factors. I hold that the soldiers uttered the
insolent words.

24

Quantum
of Damages

As regard
the various amounts claimed, the damages for bodily injury and pain
and suffering are usually classified as general damages
(non-patrimonial). Our law awards damages for any unlawful violation
of bodily integrity, dignity and reputation. Rule 21 of our High
Court Rules states:-

"(6)(a) A plaintiff who sues for damages must set out
particulars of his claim in such a manner as will enable the
defendant to assess the quantity thereof

2. Where
   the claim is for damages for personal injuries the plaintiff shall
   state in his declaration the nature and effects of the disability
   alleged to give rise to such damages and shall as far as reasonably
   possibly state separately, what amount, if any, is claimed for

   
   

1. medical,
   hospital and other similar expenses.

   
   

2. pain
   and suffering.

   
   

3. loss
   of amenities of life (full particulars to be given)
   

   
   

4. disability
   in respect of loss of income including loss to date of declaration
   and future loss of income.....

   
   

25

(c) In all cases the particulars of damages must be set out in such a
manner as will enable the defendant, if he so desires, to make a
reasonable tender. " (my underline)

The main
purpose of this rule is not cosmetic but is threefold -

1. the
   plaintiff as the injured party is the right person to suggest the
   amount of damages for the injury he has suffered.

   
   

2. the
   defendant can, if he so desires, make a reasonable tender in
   settlement.

   
   

3. the
   court has material upon which to base its award.

   
   

But
unfortunately most of the declarations in cases such as this are
often very brief and superficial yet claim huge sums as damages. It
makes the job of the court rather difficult. See Cete vs Standard and
General Ins. 1973 (4) SA 349 at 353-35 where Synman J says,

"Damages can, of course only be accurately and finally assessed
by the trial court on the evidence placed before it at the trial".

The
plaintiff bears the onus to prove on a balance of probabilities that
he suffered damage as he claims, the extent of such damage and what
amount of compensation he should be awarded in respect thereof-
Ngubane vs SA Transport Services - 1991 (1) SA 756; and the court in
exercising its discretion must take into consideration the particular
circumstances of each

26

case. In
the action for pain and suffering, the extent of the loss cannot be
assessed with mathematical precision. In such cases the exercise of a
reasonable discretion by the court and broad general considerations
play a decisive role in the process of quantification. The plaintiff
bears the onus of adducing sufficient factual information which will
reasonably enable the court to make an appropriate and fair estimate
of the loss - Visser & Potgieter - Law of Damages (1993) page
439.

Where the
assessment of the amount of damages is a matter of estimation rather
than calculation, the trial court has a wide discretion regarding
what is in the particular circumstances fair and adequate
compensation. Commercial Union Association of SA v Stanley 1973 (1)
SA 699 at 703. See generally Erasmus and Gauntlett - Law of SA 58-9.

It is not
however always possible to express "pain and suffering"
directly in money terms, since it lacks an inherent patrimonial value
- In Sandier V Coal Suppliers Ltd - 1941 AD 194 at 199 Watermeyer JA
said-

"The question now arises whether this Court should increase the
amount awarded to the appellant for pain and suffering and permanent
disability. In considering the question it must be recognized that
though the law attempts to repair the wrong done to a sufferer who
has received personal injuries in an accident by compensating him in
money, yet there are no scales by which pain and suffering can be
measured, and there is no relationship between pain and money which
makes it possible to express the one in terms of the other with any
approach to certainty. The amount to be awarded

27

as compensation can only be determined by the broadest general
considerations and the figure arrived at must necessarily be
uncertain, depending upon the judge's view of what is fair in all the
circumstances of the case. "

Indeed
where the plaintiff claims substantial damages, the defendant may
indeed be entitled to resort to he provisions of High Court Rule 35
requiring plaintiff to further submit to medical examination. It
reads:-

"(1) Subject to the provisions of this rule any party to
proceedings in which damages or compensation in respect of alleged
bodily injury shall have the right to require any party claiming such
damages or compensation where state of health is relevant for the
determination thereof to submit to medical examination."

In this
case the plaintiff is claiming M200,000.00 for his broken arm and
M100,000.00 for assault and resultant pain and suffering. It is by
all account a huge claim and it is the duty of this court to preserve
a balance between the two parties. It has to take into consideration
the nature of the injuries, degree or seriousness of disability, the
nature and extent of the pain and suffering.

In
dealing with the issue of general damages for pain and suffering and
disability Kumleben JA (as he then was) in Ngubane vs South African
Transport Services - 1991 (1) SA 756 at 786 cautioned that the court
should be mindful of the danger of duplication when making an
assessment of compensation for general damages for the assault itself
and for pain and suffering - the two being medically causally linked
- what the court should

28

decide is
what is fair and appropriate in all circumstances of the case
(Sandier v Wholesale Coal Suppliers - 1941 AD 194 at 199).

Upon his
word, the plaintiff has admitted that he has fully recovered though
not 100% as the Dr Hoedoatia put it. The court must take this into
consideration in awarding a compensation.

In the
assessment of fair compensation for pain and suffering the subjective
experience of the plaintiff (which may be established through
evidence by the plaintiff and medical doctor) is of paramount
importance "A plaintiff's subjective experience is determined by
the nature, duration and intensity of the pain and suffering" -
Visser and Potgieter - Law of Damages - p.399; that subjective
experience must be of "an average person" - Marshall v
Southern Association Ltd. - 1950 (1) PH J6(D) at 14; Blyth v Van den
Heever - 1980 (1) SA 191 (A) at 227; Capital Ass. Ltd v Richter 1963
(4) SA 901 at 905. In the case of Blyth v van den Heever (supra) the
plaintiff had sustained fractures of his right radius and ulna and a
medical practitioner had negligently diagnosed the injury and the
plaintiff after treatment had suffered much pain and suffering.
Corbett JA decided it convenient to make one composite award.

Upon an
average person, a fracture of an ulna can only be caused by a severe
force - I do not think for once that this is the so called
"thin-skull case". The resulting pain must have been severe
and enduring. The plaster was only removed after three months. There
is no doubt that the plaintiff is entitled to an appropriate award of
damages.

29

The
plaintiff has also claimed damages for contumelia alleging that he
felt insulted by insults I need not here recount. Such insults,
objectively speaking, injure an average Mosotho's feelings of dignity
and self respect. I should here note the learned words of Van der
Spur AJ in Ramakulusha v Commander, Venda National Force 1989 (2) SA
813 where says:

"It is my respectful opinion that courts are charged with the
task, nay the duty, of upholding the liberty, safety and dignity of
the individual."

This is
even more imperative because we live in a Lesotho where human rights
and freedoms are guaranteed under the Constitution. (See Khosi v
Second Lieutenant Babeli & Three others -1991-96 LLR 275)

The
particular facts of this case indicate that the plaintiff was a peace
officer - a village headman who was on that day apparently attempting
to apprehend a suspected thief- who was probably assaulted in the
process; the defendants' soldiers were law enforcement officers who
dutifully sought to intervene in the saga. They however over-reacted
and used force more than was necessary to bring the situation under
control; the plaintiff suffered a fractured ulna and a contused right
eye. The court is informed that the plaintiff and his people are
facing a charge of culpable homicide because Tsietsi later died.

Peace
officers and other law enforcement officials like police and soldiers
must always exercise restraint in the enforcing the law - because
even the suspects have the right not to be assaulted for no good
reason. They have to

30

be
apprehended - using reasonable means - and be brought before the
court for their misdeeds.

Having
considered all the circumstances of this case, the order of the court
is as follows:-

1. Judgment
   in favour of the plaintiff in the sum of M7,500.00 for the
   insults.

   
   

2. Judgment
   in the favour of the plaintiff in the sum of M15,000.00 as a
   composite award under (b) and (c) of the claim in the summons.

   
   

3. Costs
   of suit.
   

   
   

JUDGE

For
Plaintiff : Mr Mohau

For
Respondents : Mr Putsoane