HIGH COURT OF LESOTHO
LETSIE 1st Defendant
LETSIE 2nd Defendant
LETSIE 3rd Defendant
by the Hon. Acting Mr. Justice M. L. Lehohla on the 29th January,
assisted by her husband to whom she is married under customary law
plaintiff issued summons against the three defendants, the
being the daughters of the third, for :
sum of M5,000.00 damages for pain, suffering medical and incidental
expenses as also contumelia,
and/or alternative relief.
defendants are sued jointly and severally the one paying the other to
declaration the plaintiff has set out that on 31st January 1984 at
the Bus Stop near the Market place Maseru, the defendants
her by biting her on the finger, ear and cheek. She further set out
result of the said assaults 1st and 2nd defendants were convicted by
the Magistrate's Court in Maseru and sentenced each to
a fine of
M60.00 or 6 months' imprisonment.
further says she had to undergo medical treatment as a result of the
bodily injuries caused by the defendants' wrongful and
assault. She alleges that she suffered substantial pain and suffering
as well as contumelia as a result of the assault
on her executed in
the presence of the members of the society/among whom she worked.
action was opposed by all three defendants. In response to the
request for further particulars filed by the defendants, plaintiff
stated that it was the 2nd defendant who
on the left third finger which was not amputated.
stated that it was the 1st defendant who bit off her right ear lobe.
She further stated that the 1st defendant also bit
her on the right
cheek which has since recovered.
also indicated that she underwent medical treatment on 31st January,
1984 at Queen Elizabeth II for injuries sustained
from assaults by
defendants. She further stated that a medical report was attached.
However it emerged from evidence that documentary
proof of her
treatment went missing and could not be recovered from papers
entrusted with her then attorney of record Dr.
Tsotsi. But because
both counsel in the present proceedings have had cause to refer
frequently to the criminal proceedings in the
Magistrate's Court and
because a copy thereof was made available to me I have consequently
had cause to refer to it and in it I
discovered that the Report on
injuries consists of:-
" Human bite : missing - of the outer ear.
Laceration below (R) eye and the last laceration on finger third (L)"
read that the injuries were caused by "human bite" and that
the degree of force used is said to have been considerable
however the patient was not admitted; a factor used by Mr. Khauoe in
closing addresses to in-dicate that the claim based
on this head
ought at best to be reduced.
in complying with the request to state Clearly how the sum of
M5,000.00 is made up supplied her answer in the form set
medical expenses ... ... ...... M 50.00
medical expenses . ... ... ... M 90.00
of Income past .. ... ... ... M1,500.00
loss of income ... ... ... ... M2,360.00 .
and suffering and disfigurement ... M1,000.00 M5,000.00 "
plea the defendants deny that they assaulted plaintiff and further
state that 'Makali Letsie the 1st , defendant was also
injured by the
plaintiff on the scalp and sustained a wound which had to be stitched
by a doctor.
further concede that even though plaintiff underwent medical
treatment they deny liability for the injuries suffered by her
The assault was "not" wrongful or unlawful in that the
action was in self defence." . ...
The injuries sustained by plaintiff were minor confirmation thereof
being that the plaintiff was not hospitalised.
deny in toto the plaintiff's declaration that she "consequently
suffered substantial pain and suffering as well
as contumelia "and
put her to proof thereof as well as assert that her claim of items
enumerated under para 7(a) and (b) are
exaggerated as a result of
being based on exaggerated pain and suffering.
minutes of the pre-trial conference are very brief and seem to have
done very little by way of shortning proceedings in this
only and scarcely helpful achievement they made was the admission of
the names and identities of parties to these proceedings
that to me does not seem to have required the holding of a pre-trial
conference to resolve.
matters not admitted in the pleadings were accordingly referred to
medical report submitted by 1st defendant as Exhibit "B" it
is revealed that she was examined on 1st February 1984
sustained in a fight. Of importance was confirmation by her doctor
that her pregnancy was not harmed. However
the medical report
showed that she had a scalp wound which was stitched at Queen
Elizabeth II Hospital (hearsay) and that she had
pains on the sides
of the body including some undecipherable mackle consisting of two
words preceded by the phrase "there
were no" concluded in
the word "then".
evidence led by plaintiff is to the effect that on 31st January 1984
she was at the market place for the
of selling peaches. While there at about 5.00 p.m. the three
defendants came to her in the following order:- 1st, 3rd and
defendants. Then the 1st defendant stood opposite,plaintiff and
uttered these words:- "my mother can be tormented butt
these "likhohloana""meaning ill-bred stripplings."
She uttered that expression three times whereupon
Nts'asa a matronly lady in her late 60s who has been living apart
from her husband for. upwards of 30 years entered
the lists and
addressing herself to 1st defendant said "Hey you strippling,
who do you say is a strippling?" The 1st
defendant replied that
she was not referring to P.W.2 but rather to this one pointing at the
plaintiff who was sitting with her
nephew on the buck of the bakkie.
Indeed plaintiff says when 1st defendant uttered these words she was
looking at plaintiff whereupon
she said if 1st defendant was
referring those words to her she (1st defendant) is a strippling.
P.W. 2 in re-examination explained
that the word "serathana"
is an ill-fed little child whereas the word sekhohloana is a young
child whose mother fell
pregnant while that child was still at suck.
I thus have no doubt that it is an insolent word to refer to anybody.
plaintiff had retorted thus to 1st defendant the latter hurled a mug
at her but because she ducked otherwise took avoiding
action the mug
flew wide of the
then meaning to run away as she realised that the defendants were
bent on a violent set-to at her took off one of her
shoes to avoid
tripping on landing from the bakkie. Her shoes are what are referred
to as pencil heeled shoes having rather high
she could take off the other shoe the defen-dants had closed in on
plaintiff. Finding herself thus hemmed in with no possible
escape from the defendants and while 1st defendant was trying to grab
at her plaintiff hit her with the shoe she was
the other defendants managed to grab plaintiff and pulled her off the
buck of the van to the ground.
thereafter 2nd defendant bit plaintiff on the 3rd finger of her left
hand while 1st defendant bit her on the cheek and
thereafter on the ear. Plaintiff was overpowered by the defendants
because they were many and she could not break free
of their grip.
Pitso the plaintiff's husband came while 1st . defendant had her
teeth fast stuck in her ear. In his attempt to separate 1st
from plaintiff P.W.3 was horrified to notice that part of plaintiff's
ear was removed as it was stuck between 1st
Much blood flowed from plaintiff's finger and cheek. She was sent to
the dispensary for treatment. She swore
that her injuries on the ear
and finger underwent treatment for six months.
testified that she does not have full use of her finger. Her
occupation is to knit jerseys. She testified that for knitting
used both hands but mostly the left and that before receiving the
injury on her finger she produced between two and three jerseys
day. But since being injured and taking a spell of six months from
then as she spent it recovering she barely manages one jersey
less per day.
receiving the injury on her finger she would collect M100 from her
husband who used to sell the jerseys for her. She estimated
during the six months of her recovery she may have lost M1,500 of her
earnings. To date which is about 11 years after the
of the six months of her inaction she estimates that she has lost
plaintiff testified that she did not provoke the attack on her. It
took place at the specific place of her work. The mug had
at her and she was dragged to the ground by the defendants.
submitted as her reason for including the 3rd defendant the fact that
3rd defendant was holding plaintiff's shoe and waving
it about to hit
and prevent people who were trying to intervene on her behalf.
However P.W.3 who came to intervene was not hit
by 3rd defendant. At
the Magistrate's Court where 1st and 2nd defendants were being
charged with assault on plaintiff they alleged
that plaintiff had
alleged that they were in love with her husband. They did not allege
that plaintiff was the attacker justifying
their action to defend
themselves. Under cross-examination it was put to her that 2nd
defendant never said plaintiff alleged either
she or 1st defendant
was in love with her husband.
to the record of depositions at Magistrate's Court shows that 2nd
defendant never said plaintiff alleged that she was
in love with her
also revealed that on 28th May 1984 plaintiff was examined by Dr.
Phooko whose report showed all the wounds had healed. However
plaintiff insisted that she still had
to go to
Queen II hospital because of the discomfort suffered due to her
injuries. She testified that even as of 28th May 1984 her
being,treated with smearing lotions prescribed by Queen II even after
she had been to Dr. Phooko.
said 3rd defendant did not hit her nor does she know or is she aware
of anything that prevented her from hitting her.
However she said she
saw 3rd defendant hitting an intervener. The Magistrate's Court
record does not suggest that plaintiff complained
of 3rd defendant's
conduct. Asked about this she said other defendants facing the charge
never asked her about their mother. However
she insisted that in her
evidence in chief she told the magistrate that 3rd defendant hit a
potential intervener and suggests that
the magistrate did not record
this portion of her evidence. Nonetheless she said the magistrate
recorded correctly her statement
in the Court a quo.
said she failed to point out that she was assaulted with a stone on
the cheek because no question was put to her to enable
her to point
out this fact. However when it was pointed to her that her Counsel
had asked her what other injuries she had sustained
and that she
never mentioned use of stone she conceded she could not reasonably
account for her failure. She further said that
she did not mention
this fact before this Court because she did not mention it at
Magistrate's Court. In truth plaintiff did not
mention use of stones
in Magistrate's Court.
said she failed to send her finger for further medical treatment or
therapy after June 1984 because she had no money.
asserted that her hearing is no longer normal since receiving the
assault. She cannot hear unless one shouts at her. This
tremendous strain on relations between her and her husband. She is so
embarrased by the cut on her car that she has
to wear her doek in a
manner that ensures that the cut is covered and thus hidden from
January to June 1984 she could not knit jerseys from her station
because she was not working then on account of sickness. She
not sell peaches either because of the same reason. She cannot recall
how many finished products her husband sold for her
nor say how many
she had remaining in her stock because she had handed her book
containing these recordings to Dr. Tsotsi who misplaced
put to her that it was very strange that despite her failure to hear
properly since receiving injury on her ear she never
told any doctor
about this problem even though she wanted her hearing to be restored.
She suggested that she expected the doctor
to diagnose this inability
to hear without being told.
denied that she entered a quarrel between P.W.2 and 3rd defendant and
insulted the latter.
the degree of her disfigurement is so great as to warrant M1,000.00
question put to her finally regarding the fact that plaintiff
presently requires no damages for future medical help because
Phooko shows that she is healed she conceded by saying "I
re-examination she said she could not go to Bloemfontein for therapy
because she was unable to raise
required for that purpose.
Mants'asa Nta'asa did to a large measure corroborate P.W.1 as to the
events of that day. She testified that she saw defendant
approaching P.W.1 who was sitting at the back of her van stationed
four paces from her own. Defendant 1 uttered the words complained
and P.W.2 asking inquired by referring them to her whether defendant
1 was calling her a strippling. Defendant 1 said she was
those words to P.W.1 who retorted and referred those words to
defendant 1. There and then 1st defendant hurled a mug
at P.W.1 who
dodged it. Then 1st and 2nd defendants grabbed at P.W.1 and led her
where they came from. When plaintiff got down
from the van she hit
1st defendant on the forehead with the heel of a shoe.
while after being careered from the immediate vicinity plaintiff
screamed and P.W.2 came following. Her approach to the
1st and 2nd defendants had engaged plaintiff in a set-to was
obstructed by 3rd defendant who was waving plaintiff's
whoever was trying to intervene. She testified further that at the
time 1st defendant was biting plaintiff's ear while
2nd defendant was
biting her above the cheek. A girl who had been sowing nearby rushed
to the scene only to be slammed between
the shoulders with a shoe by
the words complained of were uttered P.W.1 had not said anything to
in the Court a quo she did not include the finger among injuries she
observed she replied that she was not asked about
the finger. She
said she mentioned an injury on plaintiff's elbow. The record does
not however make
to an injury on this elbow. She was surprised that P. W. 1 never
mentioned any injury on the elbow.
whether she is aware that the doctor showed that injuries were on the
right ear and cheek and therefore could not have been
simulteneously she said that was possible. She said 2nd defendant bit
plaintiff on the right cheek and she saw her. She
said she was not
surprised that the victim of the assaults said the injury on her
cheek was inflicted by 1st defendant because
"As she was being
fought and screaming she could not have seen,"
with the question put to her in the Court a quo, by second defendant
namely "Did you say I bit P.W.I on the cheek
or on the finger -
?" She replied "I remember that question" "What
was your answer - ? That I saw you bite
her on the cheek." "But
you are not telling the truth again. You said on the finger - ? No I
did not say so." Needless
to say the record of the Court a quo
shows on page 5 that P.W.2's answer to defendant 2's question "Did
you say I bit P.W.1
on the cheek or on the finger" was "on
denied saying to the Magistrate that she did not notice if 2nd
defendant bit P.W.1 but rather saw her bending over her.
Again in her
evidence in chief in the instant case P.W.2 said 3rd defendant did
not hit her because she took avoiding action by
moving backwards but
under cross examination she said 3rd defendant hit her. The record
had to be read back to her and she took
shelter under lack of memory.
point P.W.2's evidence is not anything but muddled; contradicting not
only her previous statements in the Court a quo
but her own evidence
in chief and evidence
her own self under cross-examination including P.W.1's evidence in
the present proceedings.
denied that the source of the quarrel between herself and 3rd
defendant or the involvement of defendant 3 in the earlier encounter
was that defendant 3, had been asked by P.W.3 to sweep for him where
his stand was. Even though P.W.1 says this was the case P.W.2
P.w.1 was not there. She denied that in the Court a quo she said
P.W.1 threw the shoe at 1st defendant. Yet on page 4 of the
that Court that is what,she said..
to P.W.2'9 evidence that to a large measure it became necessary to
free 3rd defendant from liability.
P.W. 3 is
plaintiff's husband a layman of the illeterate variety. He
corroborated,his wife's evidence. He is the one who
i from P.W.I and in the process P.W.1'3 portion
of the ear remained stuck between 1st defendant's teeth. As he
approached the scene
he saw defendant 2 coming from the direction of
the fight and when almost opposite him she spat out some blood. I did
not . think
it served much purpose to subject him to intense
cross-examination about calculations because he was illeterate. All
in all his
evidence was tolerably good.
for the defence was given by 1st defendant and 2nd defendant.
defendant said plaintiff had a, stand from which she sold peaches a
few paces from her own. On 31st January 1984 1st defendant
work as usual. She saw,3rd defendant sweeping the place where P.W.2
works. This place, was used by P.W.3 as well. P.W.2
defendant why she swept that place and was replied that it was in
with P.W.3's instruction whereupon P.W.2 swore at her and called her
an old witch. There and then P.W.1 entered the lists.
was not there when P.W.1 entered the quarrel. P.W.1's husband was
called by defendant 3 while P.W.2 remained swearing
at her within
defendant 1's hearing. P.W.3 came and explained that he sweep had
asked defendant 3 to sweep the place in question
Immediately thereafter P.W.1, raised an objection to the effect that
3rd defendant talks to her husband but not. to her
and hurled abuse
at 3rd defendant saying of her "You have this sort of habit you
devil of an old woman.". Defendant one
did not feel obliged to
stand by when her mother was thus being abused. Then the exchange of
abusive words relating to "sekhohloana"
took place except
that an additional factor was brought into scale namely that P.W.1 is
alleged to have said to defendant 1 "If
you say I am
sekhohloana, sekhohloana is your mother," further that
defendant's mother's front passage was referred to abusively
who did not mince her words but rather laid emphasis on what woman
she was referring to by saying "this very one
with whom you
defendant 1 are walking about."'
1 wants the court to believe that defendant 2 was not engaged in the
fight. She concedes that at the time she threw the
mug at P.W.1 she
was in no danger of any attack from P.W.1. She said she fought P.W.1
because the latter had sworn at her mother.
Asked what her mother did
when being sworn at she said she did nothing. Asked why she did not
follow her mother's example and go
and fetch someone to
reprimand P.W.1 for swearing at her mother defendant 3 said she was
with the statement she made in the Court
about the source of the fight, namely that P.W.1 said 1st defendant
was in love with her husband 1at defendant conceded. She
conceded that in the Magistrate's Court she said she, bit P.W.1. on
the ear and cheek and said . she still adheres to that
Much as defendant 1 was trying to protect defendant 2 by saying she
was not at the scene of the fight till its very
tail end, however;
she was placed in a cleft stick when it was pointed out to her that
in giving evidence in the Court a quo at
page El defendant 2 said she
was there and she said her mother should not be insulted by P.W.1 for
the two are not equals. Defendant
1 conceded this point. Needless to
say defendant 2's testimony in that Court shows that she was not only
there but she participated
in the fight for what she felt was a just
cause, namely intervention on her mother's side lest her mother be
abused with impunity
in her own presence. She bit P.W.1 on the
finger. There is no reason why she could not cross-examine P.W.1 on
the point if she
did not in fact bite her as P.W.I alleged.
' In the
light of what was revealed concerning defendant 2's testimony in the
Court a quo much of her story in this Court is mere
an attempt to minimise her role in the unlawful attack on P.W.1.
At page 9
of the Magistrate's Court her final answer to the prosecutor's
question about gives a coping-stone to the entire edifice
falsehood in the present proceedings: "Is it correct that
you were not there when the fight started - ? I was
this Court she said she was not there when the fight started. She
further made an attempt to show that contrary
to P.W.1's statement
that she was not producing any jerseys during the period
six months' recovery, P.W.I was producing newly knit jerseys.
of the foregoing I have rejected the 1at and 2nd defendants'
defences. 3rd defendant is freed from any liability and is
plaintiff has not been able to produce expert evidence regarding
various items in her claim I have formed a firm opinion
that she was
truthful! Plaintiff is of apparent age of 38,/is/aelf-employed,but is
not a sophisticated woman.
taken the view that the attack on her was unprovoked and unlawful.
Indeed she did hot do much by way of adducing expert evidence
employ means of effectively mitigating damages. However I have come
to the conclusion that plaintiff has nonetheless proved
her case on
the balance of probabilities.Regard being had to the fact that she is
not a sophisticated lady and that her marriage
to an illiterate
husband does not put her any near the position to live up to the
standard of reaction expected from a sophisticated
and the fact that there is a high degree of probability that she
failed to have her injuries attended to by physio-therapists
-specialist surgeons because of inability to make ends meet, I
conclude that the little that she did by way. of continuing
jerseys albeit her production was much reduced la sufficient to show
that she did in fact do something to mitigate damages.
give effect to that recognition.
she is awarded damages as follows:-
medical expenses in the amount of M 50.00
future medical expenses in the amount .
of................................. M 75.00
of past income in the amount of M 900.00
loss of income ................. M1,950.00
and suffering disfigurement and
contumelia...............___......... M 500.00
Henning vs South British Insurance. Co.. Ltd. 1963(1) S.A. 272.
Hollond vs Bendix in the quantum of damages 1969 at page 356.
passenger Transport Ltd vs Franzen 1975(1) S.A. 269. Also : Bell vs
De Villlers 1970 Vol.11 : Quantum of damages at "385.
Plaintiff : Mr. Monyako
Respondents : Mr. Khauoe
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