Condonation application, when grantable –Damages-Unlawful arrest, detention and injuria-Appropriate quantum of damages-when the appellate court can interfere with the primary court award of damages, when the award does not appropriately mirror the seriousness of Police misconduct.
IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) No 53/19
In the Matter between:
MOKETE JONAS APPELLANT
COMMMISSIONER OF POLICE 1ST RESPONDENT
ATTORNEY GENERAL 2ND RESPODNENT
CORAM: P T DAMASEB AJA
DR P MUSONDA AJA
M H CHINHENGO AJA
HEARD: 14th October 2020
DELIVERED: 30th October 2020
Dr. P. Musonda AJA
The court a quo
“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 our largess from the horn of plenty of defendant’s expense.”
M20, 000=00 for unlawful arrest;
M10, 000=00 for unlawful detention
M20, 000=00 for injuria
The above awards were made despite there being no sufficient detail before him, so the Judge lamented. He made an intelligent guess, so to speak.
The appellant’s case
“A delict comprises wrongful, culpable conduct by one person that is too remote. When the harm in question is a violation of a personality interest caused by intentional conduct, then the person who suffered the harm must institute the acto injurianum to claim compensation for the non-patrimonial harm suffered. The harm the Appellant complains of in respect of this detention is the deprivation of liberty- a significant personality interest. It alleges that it was his wrongful arrest that caused the harm. The Appellant was awarded three hundred thousand Rands (R 300,000=00) as general damages.”
Consideration of Appeal
There was an averment by the appellant which was uncontroverted that the judge retrieved the judgment to go and perfect it. The appellant could not lodge an appeal based on what one may characterize as a draft judgment.
I think such language goes beyond the legitimate criticism of the professional conduct of an advocate .The following passage is intructive from The Rules of professional conduct in Nigeria: A Tale of two ministers in the Temple of Justice states:
I agree that there be times when Advocates play theatre in the court room, but he criticism must be in modest language
The Court has taken into account the conduct of the police, the inflationary trends of the Moloti and the duration of detention. The Appeal is allowed the Order of the Court a quo is set aside, in substitution thereof the following order is made
Costs will follow the event to be taxed in default of agreement.
DR. P. MUSONDA
ACTING JUDGE OF APPEAL
P T DAMASEB
FOR THE APPELLANT:ADV L. MOLATI
FOR THE RESPONDENT: ADV M BROWN
(1957) (3) SA 284 (Page 257 EF)
(329/17)  ZASCA 45
2019 2ACC 32.
(2009-2010) LAC 549.
(1992) (4) SA 791
(2011) LSCA 42
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(Civ/t/133/2000 (CivT/T/133/2000 (2001) LSHE 24th September 2001
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329/17 (2018) ZASCA 45 28th March 2018
AHAFRICA.Com 30th August 2018 Nigeria.
Onlinelibrary.willey.com 30th December 2015.
H K Prempeh/ Judicial Review and the challenge of constitutionalism in contemporary Africa, 80mTulane law Review 1st July 2006.
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