HIGH COURT OF LESOTHO
PENANE 1st Defendant
'MAMOJAKI SEBELE 2nd Defendant
by the Hon. Mr Justice Sir Peter Allen on the 5th day of December
plaintiff, a 53 years old nightwatchman, brought this action for
damages for assault and injuria and unlawful arrest and detention
a result of an incident at Butha-Buthe on 16 April 1988. He claims
Ml5,000 for assault, M8,000 for injuria and M7,000 for unlawful
arrest and detention.
defendants are both police officers. The plaintiff has chosen not to
join the Attorney-General and the Commissioner of Police
co-defendants on the grounds that the defendants acted personally and
not in their official capacity as police officers. The
were served on 14 June 1988 and neither of them has entered an
appearance. The plaintiff applied for and was permitted
to proceed to
prove his claim ex parte.
plaintiff (PW1) said that he was employed as a nightwatchman at
Sekekete's Hotel at Butha Buthe. On the night of Saturday 16
1988 he was on duty at around 2.00 a.m. when he saw someone break the
glass of a window of a room in the building occupied
by one Maphuthi
Leoma, the wife of the hotel proprietor Sekekete. The plaintiff shone
his torch and saw and recognised the first
defendant Penane whom he
knew. He apparently broke the window with a stick. When the plaintiff
shone his torch Penane ran away.
evening at about 7.30 p.m. when the plaintiff was back on duty again,
the first defendant 2/Lieut. Penane came in a motor
vehicle driven by
the second defendant Sebele whom the plaintiff knew to be a driver in
the CID at Butha Buthe. Penane told the
plaintiff that he was
arresting him for having reported the incident to the hotel
proprietor Sekekete and for saying that Penane
was in love with
Sekekete's wife. Penane said that as there was a state of emergency
existing he was arresting the plaintiff under
Regulations for the reasons given above.
second defendant seized his legs and the first defendant squeezed his
neck and he fell over. They then kicked him on his body
him in their vehicle to the charge office where he was taken into 2Lt
Penane's office by both defendants. The door
was locked and a blanket
placed over the plaintiff's head. The defendants then beat him on the
body with their fists, butted him
with their heads and kicked him.
Penane told him again that they were beating
because of telling Sekekete that Penane was in love with Sekekete's
wife. He was treated in this fashion and kept in the office
p.m. to 9.30 p.m. (for about 1½ hours) and then released and
told to go away. He started to walk away and the
him slowly in their vehicle with its lights out.
plaintiff had earlier seen a gun in the vehicle and Penane pointed it
at the plaintiff through the car window threatening to
Another vehicle approached with its lights on. The defendants then
switched on their lights and drove away.
18 April the plaintiff went to the dispensary at Butha-Buthe
Hospital. It is not clear what happened then but, it seems;
made a second visit on Wednesday 20 April after obtaining a medical
report form from the charge office (exhibit 'A'). He
was seen by Dr.
Shayo (PW2) who examined him. There were no wounds, cuts or buises
found; only what were described as soft tissue
injuries to various
parts of his body. The doctor said that these amounted to swellings
and the plaintiff complained of much pain.
He was given paracetamol
tablets (like aspirins) and told to come back if the pain got worse.
That was the only treatment given
and he did not return. It is clear
from this that the injuries were not serious and there were no after
Rakuoane for the plaintiff was asked to justify the large amount of
damages claimed, a total of M30,000. He submitted that the
officers had abused their authority
powers by making a totally unauthorised arrest on personal grounds
rather than for any official or lawful reason. They had abused
assaulted this elderly nightwatchman who had done nothing but carry
out his duty. He cited three earlier cases with regard
to the quantum
Solicitor General v Mapetla C of A (CIV) No.17 of 1984 (unreported),
the plaintiff was arrested by police officer; in November
alleged subversive activities and detained for nearly three days and
then released. He was assaulted though details were
However this plaintiff was a 78 years old chief of considerable
standing in the Kingdom. The Court of Appeal in 1985
original award to M8,000 for assault, arrest and detention combined.
Kalaoane v Tuke & 4 Ors. CIV/T/37/84 (unreported), the plaintiff,
a tailor, was. set upon and assaulted by the defendants
in July 1981
with sticks and sjamboks all over the body. He sustained multiple
injuries with wounds to his nose, right ear, back
of the head and the
tip of one finger was cut off. He was awarded M2,000 in 1987 for
combined assault, pain and contumelia.
Makhesi v O.C. Police Mafeteng & Anor CIV/T/380/86 (unreported),
the plaintiff was the manager of a hotel in Mafeteng which
robbed. He gave the police a description of the robbers and some
people were arrested. Later the police also arrested the plaintiff
and took him to the charge office for interrogation. He was detained
for two full days before being released without any charge
brought against him.
awarded M4,000 (M2,000 for unlawful arrest, Ml,5000 for unlawful
detention and M1,000 for loss of reputation) in 1988.
these cases were clearly of a more serious nature than the present
case; the periods of detention were much longer and the
present case the plaintiff was detained for 1½ hours at the
most, his injuries were painful but, from the physical
point of view,
they were trivial. However, it is clear that these police officers
seriously abused their positions and authority
for personal reasons
that had nothing to do with their duty. They had absolutely no
justification for arresting the plaintiff and
no lawful excuse for
assaulting him. He was elderly and defenceless. It was disgraceful
does not in any way justify such a huge claim for damages as M30,000
with interest at 22%. That is patently absurd and
it does not help
the plaintiff to win the sympathy of the Court when he makes such
exaggerated and greedy claims. In my opinion
a case of this sort
could easily and properly have been dealt with in a magistrate's
no evidence that the plaintiff nightwatchman had any special standing
in his community; the incident was not witnessed
by any members of
the public; the plaintiff was not off work as a result and his
injuries were not at all serious. Consequently
I consider that an
appropriate award would be Ml,000 for assault and injuria, and M1,000
for unlawful arrest and detention.
judgment is entered in favour of the plaintiff against both
defendants jointly and severally for general damages amounting
M2,000 with interest at 11% from the date of judgment and costs in
P. A. P.
Rakuoane for plaintiff ex parte
by the Hon. Mr. Justice Sir Peter Allen on the 5th day of December,
plaintiff brought this action in negligence for damages resulting
from a collision between two motor vehicles in June 1983.
M13,500 damages for three months loss of income from the vehicle as a
taxi, and M3,514.68 for repairs to his vehicle.
counter-claimed also in negligence for damages of M540 for repairs to
his own vehicle.
plaintiff,a legal practitioner, testified that he was the actual
owner of a 1980 Datsun Kombi registered number A2768. He said
was first registered in April 1981 (exhibit 'A') in the name of his
brother M.M. Phafane for convenience, because it was
to be used as a
taxi operating between Maseru and Matsieng and Morija, and his
brother held a permit to carry passengers (presumably
under s. 44 of
the Road Traffic Act, 1981).
plaintiff received the profits from the taxi business. His driver on
the day in question was one Mokhajoa Semello, who did not
according to the plaintiff, he had since left the work and
defendant testified that he was the owner and driver of a light van
registered number A5611. He was alone in the vehicle at
June 1983 the plaintiff's taxi was being driver to Maseru on the main
South One road from Mafeteng to Maseru. It was carrying
passengers including the plaintiff who sat on the right side at the
front end just behind the driver. The road surface was
dry tarmac and
the weather was clear and bright at between 8.30 and 9.00 a.m. It was
travelling at between 50 to 60 k.p.h. as it
approached a cross roads.
This was the junction with the Mofoka to Mantsebo road which crossed
the main road diagonally from south-east
to north-west. This is a
minor gravel road and motor vehicles are required to stop both ways
at the junction with the main road.
plaintiff's taxi reached the junction and was driving across it the
defendant's van came from the right side, i.e. the
Mofoka, heading across towards Mantsebo and the two vehicles
collided. On the other side of the junction on the left
side of the
main road there was a bus stop with a LNBS bus stationary at the
stop, partially off the road. The first collision
plaintiff's vehicle to go on and collide with the rear of the bus.
Thus the taxi was
on its right side by the first collision with the van and on its
front by the second collision with the bus. The van was
slightly on the left front only. The police accident report (exhibit
'B') was put in by consent.
to the plaintiff the defendant's van failed to stop at the junction.
It just came straight into the main road and struck
the taxi on the
right aide, particularly just behind the driver's door. This was the
side where the plaintiff was sitting and he
said that he could see
what happened clearly.
to the defendant he stopped his van at the junction and looked to his
right and left. There was no traffic in view except
stationary bus on his right and a truck parked off the main road on
his left. As the main road was clear he started to
move slowly across
the junction. This was because there were pedestrians moving in the
road along which he was about to drive on
the other side of the
junction. He said that the whole of his van had just crossed the
white line in the centre of the main road
and his front wheels were
on the gravel road when the taxi suddenly appeared and collided with
him on his left side. He claimed
that the taxi could easily have
avoided the collision by passing, behind his van.
asked why he did not see the taxi approaching along the main road the
defendant said that the taxi came at a high speed and
that there was
slope up-hill on
road towards the junction which meant that the taxi did not come into
sight until it reached the top of the slope and the
slope was not men-tioned at all by either the plaintiff or the
defendant until the defendant was being cross-examined.
accident report makes no mention of any slopes in the area and shows
a level intersection.
tends to contradict the defendant's state-ment in his
examination-in-chief in which he said that he stopped at the
looked both ways and saw that the main road was clear of
traffic. He did not then mention any slope nor did he claim that his
was obscured by a slope or by anything else. I think that this
was an after thought.
plaintiff said that several of the passengers in his taxi were
injured. After the accident he got
so did the defendant. The plaintiff spoke to him. He said that the
defendant looked cool and unshaken and that he told the
that he had been in a hurry to get to work. The defendant, however,
denied speaking to the plaintiff and added that the
plaintiff in fact
was not there at the scene at all.
plaintiff's vehicle was extensively damaged, mainly on the right side
to the door, the side and rear windows and side panels
and on the
front the damage was to the lights, windscreen, mirrors, roof and
left side door and seats. The garage quotation was
(exhibit 'D') which was put in unchalleged.
defendant's vehicle was slightly damaged on the left front mudguard
and bumper and that aide front wheel rim and tyre. He put
in his bill
for repairs amounting to M540 (exhibit 'F') for which he
plaintiff said that he met the defendant on the following day, 17
June 1983, at the defendant's office at his place of work
Metropolitan Building in Maseru where he is a life insurance agent.
Present at that meeting, besides the plaintiff and the defendant,
were the plaintiff's brother, Motlalepula Phafane, the defendant's
employer, Peter Ramakhula, and a cashier called 'Mabeta Kuena.
agreement was drawn up in Sesotho (exhibit 'C') and signed by all
present. The translation reads:
I Hatla Molefi of Phahameng Morija under Chief Masupha Seeiso, do
hereby agree on this 17th June, 1983 that on the 16th June, 1983,
was driving my motor vehicle registration number A5611 on the
Maseru-Mofoka road when I was at Ha Mantsebo in the District of
Maseru I drove into Motlalepula Phafane's motor vehicle of Ha Tsilo
under Chief Masupha Seeiso. His vehicle is registration number
and that vehicle was damaged.
I therefore undertake on this 17th June 1983 that I shall fully bear
the costs of repairing the said motor vehicle A2768 to the
satisfaction of both Mr. Phafane and myself.
I further undertake to pay monthly instalments towards the purchase
price of the said vehicle until it is once
again roadworthy. I undertake further to pay 50% of the said
vehicle's driver's monthly salary until the vehicle has been fully
repaired. I will make all the aforementioned payments between the
28th and 30th of every month. I am requesting Mr Phafane to assist
effect repairs to the vehicle aforesaid.
Parties to the agreement: Signed: H. Molefi M. Phafane
Witnesses : Signed: P. Ramakbula M. Kuena
defendant agreed that the meeting took place and that he signed the
document, but he added that his employer Mr Ramakhula persuaded
to sign it and advised him that he would lose the case if the
plaintiff took it to court. The defendant said that he disagreed
he was frightened so he signed it. No threats were made and he did
not say what caused him to be frightened. He admitted that
knew the plaintiff, so he was not among strangers. In 1983 he was
aged 36 years, a mature man with a responsible job.
there was no mention of this agreement, nor a repudiation of it,
in his plea and counter-claim. Again I think
that this was an
afterthought, and a very unconvincing one at that.
other hand, the plaintiff did not mention at all this agreement in
his declaration and so he was plainly not relying on it.
I do not
as being of very great importance in traffic running-down cases.
These are actions in negligence and the Court will decide
accordance with the facts revealed concerning the events at the scene
rather than what was discussed at a subsequent meeting.
At any rate
the defendant paid nothing and this suit was eventually brought.
question is which version is more probably the true one. The
defendant said that his vehicle was almost across and just leaving
the junction when he was struck by the plaintiff's vehicle. The
plaintiff said that the defendant's van ran into the right side
the taxi on the junction itself. It is thus necessary to look at the
defendant's version was correct then the front of the plaintiff's
vehicle would have struck the left side and rear of his
van. But his
van was damaged only at the left front, that part which the defendant
said was already across the junction and on
to the gravel side road.
There was no damage to his left side and rear at all. Furthermore, it
would not explain the extensive
damage caused to the right side of
the plaintiff's taxi.
plaintiff's version describes the defendant's van coming from the
side road without stopping and then colliding with the right
the taxi. The damage to the front of the taxi being caused by the
resulting collision with the stationary bus. Thus the
damage to both
vehicles fits in reasonably well with the plaintiff's
but not with the defendant's version. I would accept the plaintiff's
version as being more likely to be accurate. I did
not find the
defendant to be either convincing or truthful as a witness.
the defendant had no driving licence at the time. This was shown on
the police accident report and not denied by the
defendant. He was
thus a person who was not competent to drive a motor vehicle and he
should not have been on the road at the time.
That alone is prima
facie evidence of negligence by the defendant. It is puzzling why the
police did not prosecute him.
is very clear with regard to right of way. Vehicles on a main road
always have right of way. Vehicles coming from a side
required to stop at a junction with a main road. They must wait until
the main road is completely clear and safe before
crossing it or
turning into it. A collision in such circumstances is prima facie
evidence of negligence by the driver from the
for the defendant submitted that this was not so. He referred to two
very old cases in support of his argument. In Robin
Bros. v Henderson
1928 A.D. 138, a collision occurred between two motor vehicles at a
cross-roads in the town of Durban. There
was evidence that although
the plaintiff's car had right of way, his driver saw the defendant's
car approaching the crossing
continuing across without stopping. In spite of this the plaintiff
preferred to ignore him and to drive across because he had
way and he expected the defendant to respect his right of way. The
Court of Appeal held that the trial court had come
to the proper
conclusion in holding that the plaintiff was guilty of contributory
negligence because he acted unreasonably
in the circumstances.
But this did not change the basic fact that the defendant was in the
wrong and negligent as he should have
not applicable to the present case in which the plaintiff's driver
had no time to see the defendant before he came into
the junction and
ran into the side of the plaintiff's vehicle. I can see no
contributory negligence there.
Kock v Silva (1934) T.P.D. 150, a similar collision occurred at a
cross-roads in Johannesburg. The plaintiff motor-cyclist
had right of
way at a crossing a proceeded across. He saw the defendant's car
approaching but the defendant did not see him, nor
did he stop. In
fact he drove on to the wrong side of the road and struck the
plaintiff's rear wheel. On appeal the plaintiff was
held clearly not
to blame as the defendant negligently failed to observe him and also
drove on the wrong side of the road.
see how this case can help the present defendant since it, too, was
an instance of negligence by the driver coming into
a junction where
he should have stopped.
submitted that even though the plaintiff had right of way he should
have tried to avoid the accident. This is so when
a driver can see
the other vehicle in time to take avoiding action, but, in this
instance, the defendant came from a side road
into the main road
without stopping and struck the plaintiff's vehicle in the aide.
There would not appear to have been any effective
avoiding action for
the plaintiff to take in such circumstances since he did not see the
defendant in time to do anything about
it. I do not consider that the
plaintiff's driver was guilty of any contributory negligence. On the
balance of probabi-lities I
find that the defendant was clearly
negligent and was solely to blame for the collision.
regard to damages, the plaintiff's first claim was for M13,500 for
loss of earnings from the taxi over a period of "about
months" while it was being repaired from July to September 1983.
However, no specific dates were given, as they ought
to have been,
and I shall take it that the period July to August and August to
September in fact covers a period of only two months
(60 days) and
not three months.
plaintiff put in a thick wad of documents (exhibit 'E') purporting to
be daily records of his taxi for 40 days from 1 May to
9 June 1983
showing that, after deductions for food and fuel, the daily takings
ranged from M138 to M168. He said it averaged M150
per day, which in
fact is about right.
plaintiff said that he operated the taxi for seven days a week and
that it gave no trouble as it was a new motor vehicle. He
if the driver took a day off he, the plaintiff, would take over and
drive it in the week-ends. However, I cannot accept
that since the
plaintiff had earlier stated that he did not hold a permit to drive a
public motor vehicle. He cannot claim for
loss resulting from the
illegal use of the vehicle. Furthermore, in 1983 the vehicle was
already two years old and, aside from
defects and repairs which must
have occasionally occurred, it would have had to have been serviced
fairly frequently as well, due
to the continual use of it on these
the driver's days off and for days when the vehicle might have been
off the road, I would deduct ten days from the 60.
So that leaves 50
days at M150 per day, giving a total of M7,500.
part of the claim was for M3,514.68 for repairs to the plaintiff's
vehicle, which was not disputed. No general damages
point is that in his final address to the Court Mr Mafisa decided to
attack the locus standi of the plaintiff on the grounds
that he was
not the re-gistered owner of the taxi and the repair quotation and
the alleged agreement were both made out in the
name of the
counsel's final address after trial is not the proper time to bring
up matters of locus standi
first time. It is much too late then. There should have been such a
challenge made in the defendant's plea and again at
of the hearing before the evidence was recorded. Once the trial has
taken place the defendant and the Court can
be taken to have accepted
the locus standi of the plaintiff. Furthermore, in the circumstances
of this case I think the plaintiff
was entitled to bring this claim.
the counter-claim is dismissed and judgment is entered in favour of
the plaintiff in the sum of M7,500 for loss of
income and M3,514.68
for the cost of repairs to the vehicle; that is a total of M11,014.68
damages with interest at 11% from the
date of judgment and costs in
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