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

3

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

4

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?

5

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

7

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

9

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.

10

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

13

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