CIV/T/546/83

IN THE HIGH COURT OF LESOTHO

In the matter between:

SEETSETSA MAHAO (as father Plaintiff

and guardian of MOJELA MATETE)

and

RANTSEBO SUPING RAMALEFANE Defendant

(as father and guardian of BOSOFO RAMALEFANE)

JUDGMENT

Delivered by the Hon. Mr. Justice Sir Peter Allen on the 9th day of September, 1987

This is an action for damages for assault which occurred on 16 November 1980 at the village of Lihlokong in Mafeteng District. It is an old case and in 1980 both parties were aged about 17 years, hence their fathers were named as guardians for the purposes of this action. Now, seven years later, they are both adults aged about 24 years. The defendant Bosofo is in fact the uncle of the plaintiff Mojela.

They each told a different version of what occurred and I found neither of them to be very impressive as witnesses. This was probably because of the fact that the events occurred a long time ago and neither of them was sophisticated or very intelligent.

According to the plaintiff Mojela (P.W.1) he was living with his grandmother at the time. At about 6.00 p.m.

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she sent him to deliver a letter to a relative in a village called Lebeta, about 2½ kms from where they were living. Because it was evening he went with three friends. boys of his own age, called Ntjapeli, Molefi Matsoso and Sephepo Thupeng.

On their way back, at about 8.00 p.m., at a place somewhere between Thoteng and Mokhobong, they found some cattle grazing apparently unattended. Mojela testified that the fields there were reserved pasture and that their chief had recently ordered that anyone who found cattle grazing on the reserved pasture should seize the cattle and take them to the village pound. They decided to do this and, at that moment, four boys appeared who were apparently herding the cattle. They were the defendant Bosofo (DW1), Khali Marake (DW2), Moruti Ramalefane and another boy. Molefi told them that they were impounding the cattle and the plaintiff and his companions started to drive the cattle in the direction of the village. The defendant and his friends resisted and tried to prevent the cattle from moving away by beating at the cattle in front with their sticks. When they argued about it, Mojela said that the cattle were on a reserved pasture.

They did not seem to be effective in stopping the movement of the cattle since they reached the village area. Here the boy Khali (DW2) who was younger than the others, ran away. Mojela said that Ntjapeli went to report to the chief and he did not see the defendant, Bosofo. when they reached the pound.

It was at this point that Mojela was suddenly stabbed in the back with a clasp-knife. It was actually in the

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shoulder blade on the right side (though no medical evidence of this was produced). He turned round and saw Bosofo with the knife and Bosofo immediately stabbed him again above the right eye. The blade penetrated down into the eye. Mojela stated that Bosofo declared "I have stabbed you" and then ran away.

Mojela was taken first to Mafeteng Hospital, but not until the following day for wome unknown reason. Nine days later, on 26 November 1980, he was referred to the Queen Elizabeth II Hospital in Maseru from where he was discharged on 8 December 1980. He thus spent a total of three weeks in hospital as on in-patient, During that time it was found that his right eyeball had been perforated and the eyelid lacerated. He had lost the sight in that eye so the eyeball was eviscerated (removed) by operation and the eyelid repaired. According to the written report of Dr. 'Musi Mokete, an ophthalmologist, (exhibit 'A'), the plaintiff lost the sight of his right eye but he retained normal full vision in his left eye. An artificial eye was supplied and fitted into the empty socket which thus re­duces the disfigurement somewhat.

As I have already remarked, there was no medical report or other information with regard to the first injury, the stabbing in the back, which was admitted by the defendant. The actual claim makes only a passing reference to it and it is thus not possible to assess its seriousness or effects, if any.

The defendant Bosofo's version of the incident differs from that of the plaintiff in several ways. First he-insisted that the seizure of the cattle and assault took

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place, not in the evening as Mojela stated, but in the. early morning before dawn. Bosofo stated that he drove six cattle to the fields at some distance from the village of Lihlokong where he was going to plough. He was clone at first, but, on the way, he met the boy Khali Marake (D.W.2) who was driving about seven of his parents' cattle. They kept the cattle apart from each other. Then he met the boys Sephapo and Molefi who assisted Bosofo to drive his cattle. Bosofo was carrying a lesiba (wind instrument).

The plaintiff, Mojela and Ntjapeli then came and seized Khali's cattle and started to drive them away. They joined with the defendant's cattle and they were all driven together. There was no mention of the other two boys, Moruti and the unnamed one, mentioned by the plaintiff. According to Bosofo, the two boys Mojela and Ntjapeli first helped him and then assisted the plaintiff to take the cattle away.

Bosofo said he asked where they were taking the cattle as he was on his way to the fields to plough, but he received no reply. He added that neither he nor Khali tried to prevent the cattle from being driven towards the pound and he did not ask any more questions. He just walked beside the cattle as they were driven along and nothing occurred on the way. There was no explanation of why he submitted so tamely to the seizure of the cattle and it appears to me that if this was true it may have been because he knew that the cattle had been properly seized. Otherwise why not resist or, at least, why not run off and report to his parents or the chief?

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Bosofo said that they arrived at the village at about 5.00 a.m. when he was attacked by the plaintiff, Ntjapeli and Sephapo. The plaintiff hit him with a stick on his left shoulder and then struck another blow which he warded off with his lesiba which got broken then. The other boys did not hit him and he gave no reason for this sudden attack when he had been walking beside the cattle without resisting.

After breaking the lesiba the plaintiff caught hold of Bosofo's blanket and called to his friends. Then Bosofo tried to get away and he drew his knife from his pocket and stabbed Mojela in the shoulder at the back as Mojela turned to call his friends. When Mojela felt the blow he turned round and the defendant stabbed him in the eye and ran away. He reported to his father and brother and a vehicle was found to take Mojela to Mafeteng hospital.

Bosofo maintained in Court that the village people had appointed adult cattle rangers and that the chief had not authorised all of the people to impound cattle. He added that there was no reserve pasture where his cattle were seized.

During his examination-in-chief and cross-examination the defendant was not asked to attempt to justify the stabbing of Mojela so I asked him about this. His answers were as follows:

" I stabbed him because he held me and called to the others to come. I tried to break away from him but I failed. I saw that the two other boys whom he called were close and I feared that

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they would injure me. I did not know whether he would kill me because the others came. I thought I was in danger when he caught hold of me and called the others to come."

At no time during his main testimony had he mentioned that he thought he was in any danger. It was only at the end, when I used the word myself in questioning him, that he claimed that he thought he was in any danger.

Thus,during his examination and cross-examination, there was no suggestion of self-defence being his ex­planation for his conduct. That was why I questioned him about any possibility of danger to test his reaction. It was not very convincing considering that he was legally represented.

In his written defence plea, prepared by his attorneys, it was asserted that he acted "in self defence as his lesiba was broken and his stick had fallen down, so he resorted to the use of his knife because thre were four people attacking him....." But in Court, he said it was three boys who attacked him and only the plaintiff who actually hit him. At the end of his cross-examination he added, apparently as an after thought, that someone threw a stone at him, but this had not been mentioned before.

The defendant was charged by the police at Mafeteng with the offence of assault with intention to cause grievous bodily harm. He pleaded guilty and, because he was still a juvenile, he was sentenced only to three cuts with a light cane. The court record was put in as exhibit 'B'. In this court the defendant asserted that he did not plead

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guilty, but I prefer to believe that court record.

Thus the main issue in this case is whether or not the defendant was acting in self defence when he stabbed the plaintiff and, if so, did he use excessive force in the circumstances.

The plaintiff stated that there was no fight and that Bosofo did not stab him in self-defence. Unfortunately none of the others present testified in Court, except for Khali (DW2), who said he ran away before the stabbing occurred. So it is the word of the plaintiff against that of the defendant. It does seem odd that according to the defendant, he walked beside the cattle doing nothing until they reached the village and then he attacked the plaintiff without any additional reason. But it is not impossible, for he may have taken time to work himself up to the point of making the attack. If so then it would be inexcusable.

If the defendant is believed then the plaintiff attacked him with a stick and hit him on the shoulder and also struck his lesiba which broke. He then seized the defendant's blanket. This does not appear to have been a very dangerous attack on him, especially bearing in mind that they were teen-aged boys from the same village and related to each other. The matter of seizing the cattle could easily have been sorted out by the chief or other adults so it does not seem to be all that much of a provocation. Since they were already approaching the pound by then there was no apparent reason or need for the plaintiff to attack the defendant and I find it difficult to believe that he actually did so. It seems much more likely that the defendant was the attacker.

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But, even if the plaintiff did strike at Bosofo with a stick, would that justify Bosofo in using his knife?

Just as in criminal cases, it is lawful for any person to use a reasonable degree of force for the pro­tection of himself or others against any unlawful use of force. Force is not reasonable if it is either unnecessary (greater than is requisite for the particular purpose) or disproportionate to the evil to be prevented. In an old English case of three hundred years ago, Cook v Beal (1697)1 Ld. Raym. 176, it was held that,

" A man cannot justify a maim for every assault; as if A strike B, then B cannot justify the drawing his sword and cutting off his hand; but it must be such an assault whereby in probability the life may be in danger."

This is still the position in law today. It was why I questioned the defendant about what, if any, danger he thought he was in at that time. I have already quoted his answers above.

If you are attacked with a deadly weapon the law permits you to defend yourself with a deadly weapon or with any other weapon which may protect your life. The law does not concern itself too much with distinctions and details in such matters but rather with what can be con­sidered to be reasonable in those particular circumstances.

This defendant said nothing about feeling that he was in any danger (until I almost suggested it to him). And until then there was no suggestion that he feared for his life. He was only struck on the shoulder with a stick. I do not accept that he was in danger of more that

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perhaps one or two blows with the stick, even if he is believed about that, and I did not find him to be a con­vincing witness.

To make it worse, whichever of these boys is believed, the plaintiff actually had his back to the defendant when the defendant first stabbed him. This is most significant. There can be no justification for such a dangerous assault by the defendant in such circumstances. But he made it worse by stabbing the plaintiff a second time. This time in the face, which is an assault that may have been even more dangerous to life.

I do not believe that the defendant was, in fact, acting in self-defence but, even if he was, I would hold that the defendant's reactions were disproportionate and excessive in the circumstances. Consequently I also hold that the defendant is liable to the plaintiff for the assault and the consequences of it.

The next issue is the quantum of damages. With regard to the injuries themselves, as I have already remarked, there was no medical evidence or report concerning the stab wound in the plaintiff's back. Other then the fact that the defendant admitted that he did so stab the plaintiff the consequences are unknown.

,With regard to the eye injury, this has already been described above. The plaintiff lost his sight in one -eye and there was the added disfigurement of losing the eyeball itself and requiring an artificial eye to replace it. Clearly this was a very serious injury which will affect the rest of this young man's life.

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He said that he had had to give up playing football, that he had become a heavy smoker and that he was shy and self-conscious about his facial disfigurement. He added that he suffers pain and headaches and he has become short-tempered and gets into fights easily; but it is not possible to know whether this last is a change in his temperament as a result of the injury or whether he was like that before. His mother, 'Mamojela Matete (PW2), testified that he had become forgetful and that he gets tired easily and does not care for the company of other people, which, she said, is a change from his former character. With regard to his smoking and drinking habits, these could just as easily have developed normally because he has grown from a teenager into an adult man. But clearly both the disfigurement and the obviously unbalancing effect of having only one eye have had some considerable consequences and have affected his life. I accept, too, that he suffered pain and shock at the time of the injury and afterwards.

As to his education, it appears that he left school in the middle of 1979, the year before the injury, in . order to take over cattle herding. His mother said that he did not return to take up his schooling later because of his headaches and shyness resulting from his injury. But there was no evidence of how well he was doing at school. It is a pity that the eye specialist's report (exhibit 'A') confines itself to the visible physical aspects of his injury and makes no reference to either the physical or mental consequences of it such as the alleged headaches. The Court is thus left with the probably biased, and possibly exaggerated and inaccurate, observations and

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opinions of the plaintiff and his mother.

One thing is clear and that is that in the seven years since he lost his eye, the plaintiff appears to have done little or nothing to mitigate the consequences, of his injury. He has one good eye and he could have taken up his schooling again or looked for a job. He is now 24 years old and still living at home dependant on his parents. He is clearly physically fit and well-dressed. By now he ought to have overcome his self-consciousness and he should be out and about acting like an adult and living his own life and supporting himself. It is absurd that he is idling his life away at home and expecting his parents to keep him as if he was totally incapable. Many people with a similar handicap have learnt to overcome it and have become independent and self-supporting. He has claimed damages for loss of the amenities of life but he would not have lost so very much if he had really made an effort in this direction. He is expected and required to mitigate his loss and I have little or no sympathy with him in this connection.

The plaintiff is claiming the following damages:-

M

1. Loss of sight in one eye 10,000

2. Pain and suffering 500

3. Loss of amenities of life 20.000

4. Contumelia 500

5. Hospital and Medical Expenses 45

6. Total 31,050

Of these the first four are for general damages and the last, the claim for medical expenses, is special damages which must be proved specifically. The plaintiff's

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mother (PW2) testified that she paid M50 for his medical treatment, although the written claim is only for M45. She added that she has receipts but did not bring them to Court. She admitted that her lawyer had asked her to bring them to Court but she forgot. This is not a matter where no receipts were issued and the Court could possibly consider making a fair estimate. Here there were receipts and so they should have been produced. Further, the witness has testified to a claim which is different from that in the plaintiff's summons. Since documentary evidence was available but was not produced in Court 1 find that part of the claim unproved and so no award can be made under that head.

The remaining four heads of claim are, as I have said,for general damages and I consider that they should have been claimed as such in a lump sum under one head. Put together they are damages for the loss of sight in one eye, pain and suffering, loss of amenities and contumelia. These cannot be assessed on any arithmetial or logical basis. As was said in Sandier v Wholesale Coal Supplies Ltd, 1941 AD 194, "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 usual method adopted is to take all the circumstances into consideration and award substantially what is in fact an arbitrary sum.

It is sometimes helpful for the Court to consider awards of damages made in earlier cases in similar cir­cumstances and similar injuries.. 1 was hoping that there would be some such citations from earlier cases in this

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Court, but counsel on both sides seem to have been unable to find any. Mr. Monaphathi for the plaintiff was able to cite only one case, which came from South Africa. This was AA Onderlinge Assuransie Assosiasie BPK v Sodoms 1980 (3)S.A. 134, in which a 29 years old farm labourer lost one eye and was awarded R9,700 which was confirmed on appeal. This took into account that there was intense pain, two surgical operations were required and that the plaintiff could no longer drive a vehicle or work as a welder, which apparently he sometimes did.

I agree with Mr. Pheko, for the defendant, that the claim for M31,000 is much too high in the present case. shall take into account the fact that the sight has been lost in one eye, that there is a disfigurement, there was pain and suffering and there has been a loss of some of the amenities of life, but also that the plaintiff could have taken, and could still take, steps to alleviate and mitigate his loss.

Bearing all this in mind I consider that an award of M9,000 total general damages would be appropriate and fair in the circumstances.

Accordingly judgment is entered in favour of the plaintiff in the sum of M9,000 general damages with in­terest at the court rate and costs in the suit.

P.A.P.J. ALLEN

JUDGE

9th September, 1987

Mr. Monaphathi for the Plaintiff

Mr. Pheko for the Defendant