HIGH COURT OF LESOTHO
by the Hon. Mr. Justice B.K. Molai on the 30th day of October,
and Appellant were respectively Plaintiff and Defendant before the
magistrate court of Quthing where the former, representing
son, Lehlohonolo Henry Kaibane, claimed against the latter damages in
the amount of M1,080-75 plus costs of suit.
close of the trial, judgment was entered in the following terms
"Damages are granted to Plaintiff as preyed with costs".
The defendant was, however, dissatisfied with the decision against
which he noted appeal to the High Court on the following grounds
"1. The learned magistrate erred in law in finding that the
defendant was liable to pay the sum of R1080-75 to the Plaintiff
well as costs.
learned magistrate misdirected himself in law in arriving at a final
judgment without any available evidence.
learned magistrate erred in law in arriving at a judgment in favour
of the Plaintiff against the weight of evidence in favour
common cause from the pleadings that the defendant owned a dun dog.
According to Plaintiff's declaration to the summons his
6 years old
son was, on 31st December, 1978, passing on a public place next to
the home of the defendant when the dog which was
outside the house
attacked and bit him on the calf of his leg. He sustained injuries as
a result of which he was admitted in hospital
from 1st January , 1979
to 14th February, 1979. Consequently Plaintiff, representing his
minor son, suffered damages for which
the defendant was liable.
Wherefore, he claimed against the defendant as aforesaid.
plea the defendant stated that he denied knowledge of all the
allegations contained in the declaration to the summons and
admit same. He, therefore, put the plaintiff to the proof thereof.
P.W.4 Lehlohonolo Henry Kaibane, told the court that he was the son
of the Plaintiff. On the day in question he and another
Lehlohonolo Nkofo, were driving cattle along a public path. As they
passed next to the defendant's home two people approached
opposite direction in the same path. Some of the cattle ran out of
the path and Lehlohonolo Nkofo had to go and drive
Defendant's dog which was within his premises then ran out and
attacked him (P.W.4). It b]t him on the right leg and
he fell to the
ground. Shortly thereafter one Felleng came and carried him home
where he reported to his parents. The evidence
of P.W.4 was in this
regard, corroborated by that of P.W.3 Lehlohonolo Nkofo. Plaintiff
also testified as P.W.1 and confirmed that
P.W.4 did report to him
that he had been bitten by Defendant's dog.
to him, P.W.4 suffered great pain from the injuries caused by the
dog. On the following day, 1st January, 1979 he was
Quthing Government hospital for medical treatment. He was admitted.
Upon his discharge on 14th February, 1979
he was given a document
which he handed in as Exhibit "A" at the trial.
evidence of P.W.2, Dr. van Gelder was that during the time P.W.4 was
allegedly at Quthing Government hospital he was not there.
however, told the court, on oath, that the document exhibit "A"
was a medical report on the condition of P.W.4 Lehlohonolo
Kaibane as of 14th February, 1979. According to exhibit "A",
compiled by a certain Dr. Lumoers who had since left
the country and
was, therefore, not available to testify before the trial,court,
Lehlohonolo Henry Kaibane was on 1st January,
1979 admitted at
Quthing Government hospital because of a dog bite wound. The patient
was discharged on 14th February, 1979, after
skingraft-operations. In the opinion of Or. Lumbers it would take
about a month for the wound to close up completely.
he denied that his dog had bitten P.W.4 Defendant conceded that he
was not at home at the material time and could not,
personally verify it. He however, called 24 years old D.W.2, Felleng
Maqolo, to testify that she was the daughter of
his elder brother. On
the day in question she was visiting one Nkeletseng in the village.
Whilst she was in the house of Nkeletseng
D.W.2 heard some screams
outside. As a result she got out of the house. She noticed P.W.4
lying on the ground and crying. When
she came to him she found that
P.W.4 had sustained injuries. She personally did not see how the boy
sustained the injuries but
on inquiring from him P.W.4 informed her
that he hod been bitten by doge, that were fighting. She confirmed
that she then carried
P.W.4 to Plaintiff's home.
Mafelebane Maqolo, testified that he wos defendant's son On the day
in question he was standing at the cattle kraal
when he noticed
P.W.4 and P W.3 passing next to defendant's place. They were
rol-lowrd by two of Plaintiff's dogs, a black dog
and a black and
white one. Defendant's dog then ran out of his premises and attacked
one of Plaintiff's dogs.
fought the dogs fell on P.W.4 Eventual ly Plaintiff's dog managed to
escape and run away chased by defendant's dog. P.W.3
then went to
P.W.4 and found that he had sustained injuries. He did not, however
per-sunolly see how P.W.4 hod sustained the injuries.
significant to mention at this juncture that at the time they
testified before the trial court P.W.4. P.W.3 nnd D.W.3 were,
respectively aged 10, 16 and 14 years, No oath was administered to
them. They were merely admonished to speak the truth. The record
proceedings advanced no reasons why the trial magistrate did not
administer the oath to these witnesses., It can only be assumed
he investigated and found that they did not understand the nature of
an oath, presumably by reason of their youth. Assuming
correctness of this assumption it is imperative that the evidence of
P.W.4, P.W.3 and D.W.3 be approached with caution.
D.W.3 testified that when ho saw them passing on a public path next
to defendant's place P.W.I and P.W.3 were followed
by Plaintiff's two
dogs, this was denied by P.W.4 who told the court that no dogs were
accompanying them at the time. In this regard
P.W.4's evidence was
corroborated by that of P.W.3. The trial court found for the
Plaintiff on this point. Regard being had to
the fact that P.W.4's
story was confirmed by P.W.3, it was sensible to prefer it to the
uncorroborated version of D.W.3.
that no dogs were accompanying P.W.3 and P.W.4 at the time
defendant's dog ran out of the
and went to the latter, it is improbable that D.W.3 was testifying to
the truth when he told the court that he had sewn
fighting with that of the Plaintiff and in the process the dogs fell
evidence of D.W.2 that P.W.4 informed her that he had been injured by
fighting dogs was denied by the latter. Having decided
that at the
time defendant's dog ran out of his premises and went to P.W.4 no
dogs were accompanying P.W.4 and P.W.3 it must be
D.W.2's testimony in this regard was also improbable The truth lev in
the evidence of both P.W.4 and P.W.3 that,
the former was attacked
and injured by defendant's dog as the two boys were pissing on a
public path. On the evidence, P.W.4 had
done nothing to provoke the
dog which obviously attacked and injured him out of its inward
large I come to the conclusion that the evidence was simply
overwhelming in support of Plaintiff's case and defendant was
correctly held legally liable for demages.
on the question of quantum of damages it must be observed that the
amount of R1,080.25 claimed by the Plaintiff comprised
R80-75 arising from the dog bite and the resultant expenses,
respectively. The amount of R80-75 for expenses was,
in my view,
a claim for specific damages requiring substantial and precise proof.
If it were true that he did incur such expenses
the onus was on the
Plaintiff to prove them substantially and precisel0y. He could, for
example, have easily produced receipts
as proof thereof. No such
rereipts were, however, produced. Plaintiff merely relied on his oral
statement. That was not enough
and, in my opinion, l,the trial
magistrate ought not to have made any award under this heading.
was, nevertheless, sufficient evidence. indicating that defendant's
dog did bite P.W. 4 and caused him injuries for which
great pain. I find no
reason to doubt the evidence that as a result of the injuries, P.W.4
did suffer great pain for which Plaintiff was entitled
damages It was, however, common cause that the injuries had
completely healed although some scare might remain That being
consider the amount of R1,000 crossly inflated and the justice of the
case could have been met by an award of R300-00,
result 1 would vary the judgment of the court a quo, granting damages
to Plaintiff as prayed with costs, to read "judgment
Plaintiff in the amount of R300 with costs," As either party has
partly succeeded and partly foiled before the High Court
it is deemed
equitable that each must bear its own costs of this appeal. It is
Appellant Mr. Masoabi
Respondent Mr. A.P.S. Mda.
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