HIGH COURT OF LESOTHO
NARE MOLAPO PLAINTIFF
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 15th
day of March, 1993.
Plaintiff : Mr. S. Malebanye
(I) Matekane v Attorney-General CIV/T/465/86.
plaintiff's claim is for damages. Judgment in default of appearance
was entered for the plaintiff and. the issue before me is
declaration reads in part as follows:
"3. On or about 16th June, 1991 at or near Leoana-Letsoana
Pela-Tsoeu in the Leribe
district Defendant wrongfully, unlawfully and intentionally set fire
to Plaintiff's two houses as a result of which Plaintiff's
houses and some property therein were extensively damaged.
the time Defendant set the fire aforesaid Plaintiff, his wife and
three minor children were sleeping in these two houses respectively.
result of the aforesaid setting of fire Plaintiff feared for his
life and safety and suffered a nervous shock which Defendant
reasonably foresaw that his aforesaid acts would result in.
result of Defendant's wrongful act Plaintiff has suffered damages
all in all in the sum of Thirty-Two Thousand Four Hundred
Fifty-Four Maloti (M32,454-00) calculated as follows:-
to Two Houses = M13,454-00
to Property therein = M 4,000-00
Shock = M15,000-00
TOTAL = M32,454-00
Defendant is liable."
plaintiff, is a Chief, he is aged 82 years, he testified that the
defendant is his fourth son. He was apparently experiencing
family difficulties with the defendant at the relevant time. The
latter had taken away some of his animals. The plaintiff
family meeting to discuss the matter. On the 16th June, 1991,
however, about midnight, the defendant set fire to the
two houses. At the time the plaintiff was sleeping in the main house
with his wife, aged 56 years. and three minor
children aged six to
were three doors in the main house. The plaintiff was awake at the
time. When the house went on fire, "I was frightened",
said. He was the first to get out of the house. Then came the
children and then his wife. "None of the children were burnt",
he said and his wife "was nearly burnt". He made no
reference to any burns suffered by him. and as he was the first out
of the house, I presume he did not suffer any burns.
plaintiff testified that others were extinguishing the fires. He "was
heartbroken": "I felt I
to die", he said. He testified that he was, over a year later,
"still undergoing treatment for my chest",
but he did not
stipulate the nature of such treatment or adduce any medical evidence
plaintiff testified that the main house was valued at M13,454 and the
other house at M8,900, that is, a total of M22,3544. He
that the main house was built of concrete blocks with a corrugated
iron roof. containing five rooms. The smaller house
was a rondavel of
one room, built of stones with red bricks on top and a thatched roof.
was pointed out to him that he had claimed M13,454 for both houses,
he stated that he was "probably confused"
at the time, as
he was "still confused": he had obtained the figure of
M13,454 from a builder who wrote the figure on
a piece of paper,
which was at home. The Court granted an adjournment to enable the
plaintiff to produce documentary evidence.
adjourned hearing, the plaintiff produced a document, which is
apparently a photostatic copy of the manuscript original.
wrote (apparently in a different handwriting) "30-11-1989"
at the top of the document. Further, the document
(as a Chief) for "30-11-1989". The document is entitled,
"Plan of a House of the size of 10.60 x 8.60
x 7.40". It
contains a list of building materials, all adding up in price to a
total of M22,182-00. The original, or perhaps
a photocopy, was signed
by one "Matli Lesoetsa".
plaintiff tendered the document as an invoice prepared by "the
person who built house for me". The original document
no letterhead whatever. There is nothing to indicate that Matli
Lesoetsa had any degree of proficiency as a builder,
such that the
Court could place any reliance on the estimate. There is nothing to
indicate that the document was ever more than
an estimate, that is,
there is nothing to indicate that the plaintiff ever paid any of the
amounts contained in the document. I
had expected to have sight of an
estimate for the future construction of the houses damaged in the
fire: instead of that the plaintiff
produced an apparent estimate for
a construction in 1989. Furthermore, while he claimed M13,454 for two
houses in his declaration,
he then produced a document for one house,
in the total of M22,182, which amount, I observe, approximates to his
of the value of two houses, namely M13,454, plus
M8,900. that is, M22,354. Further again, the plaintiff testified that
house was constructed of concrete
with a corrugated iron roof. The 1989 document itemises "17,000
small bricks" at M5,100 and "Ceiling tiles
at M6,360. There is no mention of any concrete blocks or corrugated
a well-used maxim that a litigant "cannot throw damages at the
head of the Court". Damages must be proved. The
claim M13,454 damages and then, without any notice to the defendant,
tender evidence, if one can call it such,
of a grossly inflated
amount. The exhibit before the Court is of no probative value. I
proceed therefore solely on the basis that
the sum of M13,454 has
raised no objection from the defendant and would seem to be a
reasonable amount for two village houses and
I do not propose to
award the plaintiff any amount beyond that figure.
comes to property, it will be seen that the plaintiff's claim is in
the amount of M4,000. He gave evidence of purchases
(without any invoices) totalling some M5,684. That included items,
however, valued at M1,700 some 40 years ago and
M2,300 some 25 years
ago. The furniture was then extremely old and perhaps bordering on
dilapidation. Doing the best I can, I would
estimate its value at no
more than one-third of cost price, that is, at M1,895.
comes to the claim for nervous shock. I agree with Mr. Malebanye that
the particular damage was clearly forseeable by the
the plaintiff was understandably mainly affected by a personal
apprehension of danger, he must to some extent
have also feared for
the safety of his wife and children. Nonetheless the shock must have
been short lived: he was awake at the
time, and he was the first to
get out of the house. Neither he nor his family suffered any burns.
plaintiff adduced no medical evidence whatever of any condition
resulting from the fire. Despite his age. he seemed to be extremely
fit and displayed remarkable mental alertness and control in the
witness box. In brief, I consider that he greatly exaggerated
his claim for damages and his evidence of any lasting effect of the
initial shock suffered. I do not consider e.g. that the
be of the same quantum as that in Mateka v Attorney-General (1), to
which Mr. Malebanye refers. Doing the best I can.
I would award
M2,000 under this head.
award under the various heads shall then be as follows:
the two Houses : M13,454
Damage to Property Therein: M 1,895
Nervous Shock : M 2,000
TOTAL : M17,349
accordingly give judgment to the plaintiff in the total amount of
M17,349 with costs.
at Maseru this 15th Day of March, 1993.
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