CIV/T/205/80 IN THE HIGH COURT
OF LESOTHO

In
the matter of :

JONATHAN PEETE Plaintiff v

l.NTIEA RAMETSE ) Defendants

2.MOTINYANE
RAMETSE)

JUDGMENT

Delivered by the Hon. Chief Justice, Mr. Justice T.S.
Cotran on 4th January, 1983

The plaintiff, a messenger in the local court of Bela
Bela, is claiming the sum of M15,000 general damages for pain and
suffering
and the sum of M25 special damages for medical fees, from
the two defendants jointly and severally, for an alleged unlawful
assault
on his person.

The defendants are brothers. In their plea first
defendant admits assaulting the plaintiff by hitting him with a stick
on the head
but says the circumstances under which he did do were
justified. The second defendant denies assaulting the plaintiff at
all.

The story that emerges is as follows : The first
defendant is the chairman and one of the messengers of the
chieftainess of Nokong
in Bela Bela in the district of Berea. On or
about the 13th December 1979 the plaintiff's cattle were impounded
for grazing in a
reserved area. The plaintiff sleeps at his place of
work during the week but goes home at the weekends. He had been
informed by his
wife that their cattle have been impounded and that
she had arranged for payment of the fine (M3.50) and had got the
cattle released.
The plaintiff says his cattle (7 heads) were the
only cattle impounded. The first defendant says that other people's
cattle had been
impounded as well and that the plaintiff was not
singled out. He added that another

/messenger

-2-

messenger
of the chieftainess did the impounding.

At about 5 p.m. first defendant went to visit his
brother second defendant at his home. The plaintiff says that the
path from his
place of work passes the house of second defendant and
whilst on his way home he saw the first defendant, and his brother,
at the
forecourt and he went to ask the former for a receipt of the
fine his wife had paid. The plaintiff was on horseback. As soon as he
arrived he says the first defendant stabbed him with a sword on the
mouth and the second defendant his him with a knobkerrie three
times
on the head. He went to hospital on the 14th December and spent a
month as an in-patient. He suffered severe pain and was
speachless
for a month.

The defendants were prosecuted at T.Y. They were found
guilty of assault with intent to do grievous bodily harm and fined
M50 each
or 5 months imprisonment. They appealed but the Judge
(Rooney J) enhanced their sentence to 12 months imprisonment.

The doctor's evidence as deposed to in the magistrate's
court was admitted by consent. He confirmed that the plaintiff was
speechless
when admitted. He had a large swelling in the scalp and
the doctor thought the force used was moderate to severe. he
plaintiff spent
16 days in hospital (not a month) and when discharged
still had difficulty in his speech. The doctor examined the plaintiff
again
on the day he gave evidence (on 14th April 1979) by which time
the plaintiff had a slight improvement. The doctor thought his
condition
will stabilise after 18 months.

This was over three and a half years ago. There is no
further medical evidence. When the plaintiff appeared before me he
spoke with
no difficulty and I think he got over the worse a very
long time ago. He never lost his job and he gave me no details of
loss of
amenities of life or of anything else for that matter.

First defendant testifies that the fine levied on
plaintiff's trespassing cattle was paid not to him but to the
chieftainess herself
and the plaintiff's wife got a receipt. He was
present when this happened. He went to

/visit

-3-

visit his brother(second defendant) and whilst there the
plaintiff arrived on horseback in a belligerent mood. The plaintiff's
usual
path does not pass second defendant's house. Plaintiff
dismounted and was the first to strike. First defendant says he
warded off
the blow and struck the plaintiff with a stick once. He
says the plaintiff was not assaulted by second defendant.

Second defendant says the plaintiff carried two sticks
and was the initial aggressor. He denies that he hit the plaintiff
himself.

A witness called Pula testifies that he was at the
chieftainess's place and the plaintiff had earlier in the day been
enquiring about
first defendant in an angry mood and when he did not
find him He rode away saying he was going

to kill him.

I do not think that I am bound by the fact that the two
defendants have been convicted and I have I to consider only the
evidence
before me.

On balance of probabilities the plaintiff was in fact
looking for first defendant, perhaps no to assault him, but to argue
and quarrel
with him. There has been trouble between them before over
the subject of illicit grazing. I think the plaintiff by coming to
second
defendant's home when it was unnecessary for him to do so has
provoked the two defendants to a certain extent.

The
principles governing a case of this nature are summarised in
McKerron's Law of Delict 7th Edition p.1561 as follows :

"It is submitted that the principle of retorsion
-in the modern law at any rate - has no application to 'real'
injuries, and
that, unless a case of self-defence can be made out, an
assault can never be justified on the ground of provocation, however,
is
a ground for mitigation of damages; so much so that the court may,
on proof of provocation, refuse to assist the plaintiff, and hold
that by reason of his having provoked the assault he is not entitled
to any damages". (See also cases cited).

I do not think the defendants made out a case for
self-defence but they are liable for damages reduced to a

/sum

-4-

sum commensurate with the almost total lack of evidence
on prognosis of the plaintiff's health after April 1979.

I assess the general damages suffered at M400. I accept
the quantum of special damage. I give Judgment for M425 against both
defendants
jointly and severally the one paying absolving the other.
Costs are awarded to plaintiff on the magistrate's court scale.

CHIEF
JUSTICE 4th January, 1983

For Plaintiff : Mr. Masoabi For Defendants: Mr. Matsau