IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C of A (CIV) 11/2010
In the matter between:
THE COMMISSIONER OF POLICE FIRST APPELLANT
ATTORNEY GENERAL SECOND APPELLANT
NEO RANTJANYANA RESPONDENT
CORAM: RAMODIBEDI, P
HEARD: 14 OCTOBER 2011
DELIVERED: 22 OCTOBER 2011
Damages – Action for damages for unlawful arrest, contumelia, pain and suffering – Appeal only against the quantum of M500,000.00 –Principles on measure of damages –Appeal upheld with costs.
 The appellants challenge as excessive an award of damages in the sum of M500,000.00 granted by the High Court (Mahase J) in favour of the respondent. The solitary ground of appeal on which the appellants rely is couched in the following terms:-
“The quantum of damages awarded by the court a quo in respect of unlawful arrest, contumelia as well as pain and suffering is grossly high in the circumstances of this case, thus entitling the Court of Appeal to interfere.”
 At the hearing of the matter in the court a quo the appellants effectively admitted liability. They, however, contested the quantum of damages sought. They did not lead any evidence at all. Instead, they elected to make submissions on quantum only. In its written judgment delivered on 12 February 2010, the court a quo gave judgment for the respondent in the sum of M500,000.00 as prayed.
 As can be seen from the above resumè the facts are hardly in dispute. The respondent is a member of the Lesotho Mounted Police Service holding the rank of Trooper. It is not in dispute that on 29 August 2003, he was unlawfully and maliciously arrested by a policeman named Inspector Mpepe employed under the first appellant. He was arrested on the allegation that he had helped or aided one Phakiso Molise to escape from prison unlawfully. He was not given any charge and was only released from custody on 1 September 2003. As can be seen, he was in detention for three (3) days.
 In his declaration the respondent prayed for judgment against the appellants as follows:-
(a) Two hundred thousand maloti (M200,000.00) for unlawful arrest.
(b) Two hundred thousand maloti (M200,000.00) for contumelia.
(c) One hundred thousand Maloti (M100,000.00) for pain and suffering.
(d) Costs of suit.
(e) Further and/or alternative relief.
 The appellants did not file any plea in answer to the respondent’s claim, choosing instead, as indicated above, to rely on submissions on quantum only.
 In his evidence in chief the respondent confirmed the allegations in his declaration relating to his unlawful and malicious arrest. He further confirmed that he was not given any charge.
 Insofar as the quantum of damages was concerned the respondent “considere[d]” the sum of M500,000.00 claimed, to be “an appropriate compensation” due to his unlawful arrest. In particular he testified as follows:-
“I have claimed the amount for contumelia because I am a police servant in this country and I also hold a high position within the police association. Also and besides that I am a faithful member and a highly placed person in my church and the congregation and the police officers with whom I work hold me in high esteem. The allegation of this nature reflected badly upon my reputation.”
 With regard to his claim for pain and suffering the respondent testified that he was never given food from Friday when he was arrested until on the following day on Saturday. He further testified that he was suffering from pneumonia of the lungs. As proof thereof he handed in a document marked “ID4” signed by Dr Hoedoafia. It is dated 22 May 1997 and reads as follows:-
“22nd May 1997
TO WHOM IT MAY CONCERN
The above named patient is currently being treated for Carvenous Pulmonary tuberculosis and is AFB positive and therefore can infect others.
He can only be allowed to mix and work freely with others at a time that he [is] AFB negative, it is undebatable that altitude and temperature differences are contributory and aggravatory factors to his present ailment and that is why I stated in the first letter the need for him to be exempted from such a place of work and be allowed [further] to work in close proximity to our hospital. This is therefore explicitly clear that working in the capital is most desirable and will facilitate recovery from such a cavity in his lungs.
MASEU PRIVATE HOSPITAL”
 The cross-examination of the respondent by the appellants’ counsel was most ineffectual. It was confined to a single issue, namely, an attempt to show that the document “ID4” dated 1997 could not have related to the respondent’s alleged pneumonia in 2003. The respondent was adamant that it did.
 Now, as a matter of first principle, the assessment of damages is a matter which lies primarily in the discretion of the trial court. The appellate court is generally loath to interfere with such discretion in the absence of a material misdirection indicating that the discretion was not exercised judicially or that it was exercised capriciously or upon a wrong principle or on an improper basis. Authorities for this proposition are legion. See for example such cases as Ex Parte Neethling and Others 1951 (4) SA 331 (A); Commissioner of Inland Revenue v Da Costa 1985 (3) SA 768 (A) at 775; Media Workers Association of SA v Perskor 1992 (4) SA 791 (A); Wijker v Wijker 1993 (4) SA 720 (A). Furthermore, this Court will interfere with the discretionary award of the trial court on quantum if it considers that there is a striking disparity between the amounts which it would have awarded and the amount actually awarded by the court below. See for example Mohlaba and Others v Commander of the Royal Lesotho Defence Force and Another 1995 – 1999 LAC 184 at 191 – 192.
 It is further well – recognised in law that the assessment of damages is always a difficult exercise. It is important, however, to have regard to all the relevant factors which have a bearing on the matter such as the plaintiff’s status, his position in society, his reputation, the nature of damages at issue (the list is not exhaustive). It is also useful to have regard to previous comparable awards in this jurisdiction for general guidance. It is upon these principles that I approach the present matter.
 In assessing the quantum of damages the court a quo correctly observed, in my view, that there is no scale by which general damages may be assessed. It appears to me, however, that the court placed undue reliance on the fact that the respondents failed to file a plea in the matter. In this regard the court made the following unfortunate statement in its judgment:-
“There is nonetheless a burning issue, namely that the defendants have not filed a plea as has already been alluded to above. The net effect of such failure on the part of the defendants is that the evidence of the plaintiff and his allegations as contained in his summons and the declaration stand unchallenged….this court is of the view that the plaintiff has discharged, on a balance of probabilities the onus placed upon him of [proving] his case against the defendants.”
It is my considered view, however, that the fact that the appellants did not file a plea in the matter did not relieve the court a quo from discharging its duty of assessing damages and coming to an appropriate award.
 Astonishingly, on page 12 of its judgment the court a quo made a finding that by failing to file a plea the appellants thereby failed to disprove the quantum of damages claimed by the present respondent. In my view this amounts to a misdirection. There was no onus on the appellants as defendants to “disprove” the quantum of damages. It was this misdirection which led the court a quo to award the sum of M500,000.00 as claimed. In the light of this material misdirection this Court is at large to consider the question of damages afresh.
 As can be seen, the court a quo awarded the plaintiff M200,000.00 for unlawful arrest, M200,000.00 for contumelia and M100,000.00 for pain and suffering together with costs. I proceed then to deal with each head briefly.
Unlawful arrest and contumelia
 Although in his declaration the respondent had claimed M200,000.00 for unlawful arrest and M200,000.00 for contumelia he insisted in his oral evidence that the “appropriate compensation” he was seeking was M500,000.00 for unlawful arrest alone. With regard to contumelia he relied on the fact that he was a police servant and that he held “a high position within the police association”. It was his uncontested evidence that the allegation that he facilitated the escape of Phakiso Molise from lawful custody “reflected badly” upon his reputation. He testified, too, that he was held in high esteem by his church members as well as his colleagues in the police force. It will be remembered, however, that he held the junior most rank in the police service, namely, that of Trooper, a factor which the court a quo failed to pick up.
Pain and Suffering
 There is no evidence on record to show that the respondent was subjected to pain and suffering. He was not assaulted. Instead, his claim on this head was premised on the fact that he was suffering from pneumonia since 1997. It must not be forgotten, however, that under Roman-Dutch law a claim for pain and suffering is made on the basis of the wrongful infliction of bodily or personal injuries. But Adv. Molati, counsel for the respondent, made the following submission in paragraph 12.4 of his heads of argument:-
“With regard to pain and suffering, the evidence on record speaks for itself. The pain and suffering do not result from assault. They are based on plaintiff’s being locked-up without being given food at all. The plaintiff was pained by hunger and he was tormented. The injury caused is clear, more so in view of the fact that this issue was not challenged in cross-examination.”
 Regrettably, there is a dearth of comparable cases in this jurisdiction which are on all fours with the present matter. Mohlaba’s case, supra, was undoubtedly a more serious case than the instant matter. There, the appellant who was a Captain in the Lesotho army claimed the sum on M250,000.00 as damages arising from his unlawful detention in the Maximum Security Prison in Maseru for a period of one year. He had also been viciously assaulted over a long period of time. He sought damages on this head as well. The High Court awarded him M35,000.00. On appeal, however, this Court increased the award to M75,000.00.
 Similarly, it should be noted that Mohlaba’s co-plaintiffs, namely Tšepe and Phiri, had each claimed damages in the sum of M150,000.00 and M120,000.00 respectively in respect of their unlawful detention and for assaults which were more vicious than the assaults in the instant matter. Both of them had been unlawfully detained and assaulted for six months. The High Court had awarded Tšepe who was a private in the army the sum of M20,000.00. Phiri in turn had been awarded M8000.00. On appeal this Court increased Tšepe’s award to M50,000.00 and Phiri’s award to M25,000.00.
 By comparison, it will be recalled that the respondent in the present matter was only in detention for three (3) days. During that period he was not assaulted at all. It requires to be stressed, therefore, that Mohlaba’s case was much more serious. Incidentally, the court a quo did not refer to that case in its judgment, presumably because it was unaware of it.
 In determining an amount which will be fair in all the circumstances of the case I take comfort in the following remarks of Holmes J, as he then was, in Pitt v Economic Insurance Co. Ltd 1957 (3) SA 284 (D) at 287 E-F:-
“I have only to add that the Court must take care to see that its award is fair to both sides – it must give just compensation to the plaintiff, but must not pour [out] largesse from the horn of plenty at the defendant’s expense.”
Similar sentiments were expressed by Trollip JA in Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A) at 274, namely:-
“In other words, in striving to determine an amount that will be fair in all the circumstances, the Court should act conservatively rather than liberally towards the plaintiff lest some injustice be perpetrated on the defendant.”
 Doing the best I can in the foregoing circumstances I consider that the best interests of justice would be served by awarding general damages to the respondent in the sum on M50,000.00. As can be seen, there is a striking disparity between the amount which I would have awarded and the award made by the trial court. In principle, therefore, this Court is entitled to interfere.
 In the result the following order is made:-
(1) The appeal is upheld.
(2) The award of M500,000.00 damages made by the court a quo is set aside and in its place is substituted the sum of M50,000.00 general damages.
(3) The respondents shall pay the costs in the court below.
(4) Each party shall bear its own costs in this Court.
PRESIDENT OF THE COURT OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
For Appellants: Mr. R. Motsieloa
For Respondent: Adv. L.A. Molati
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