CIV/T/169/83
IN THE HIGH COURT OF LESOTHO In the Matter of
MORRIS KEFUOE MOKETE v
MAKOAE MOTEBANG MAKOAE 1st Defendant
TEBOHO MAKOAE 2nd Defendant
KALI MALEKE 3rd Defendant
PHALLANG MAKOAE 4th Defendant
JUDGMENT
Delivered by the Hon Mr. Justice J.L. Kheola on the 10th day of February, 1986
On the 15th November, 1981 the Plaintiff and his brother (Moeti Mokete) were on their way to the cattlepost at Mantsonyane. They were driving their cattle. They did not actually leave their home at the same time because the plaintiff had to attend to some other family matters. For that reason Moeti was well ahead of the plaintiff and when he came to Matsieng plateau it was late in the afternoon and a storm was coming. He met the 4th defendant who was going to a cattlepost nearby. Mokete asked the 4th defendant to host them at his cattle post It was only after Mokete had fully established their identity and destination that the 4th defendant agreed to accommodate them for the night at his cattle post The plaintiff arrived at the cattlepost much later at about 7.00 p.m
It is the plaintiff's case that they were well received by the 4th defendant and had their supper together in a very peaceful atmosphere. At about 10.00 p.m. the 4th defendant informed his quests that he was going home to fetch some mealie-meal for the dogs Immediately after his departure the plaintiff and his brother went to bed. At about 1.00 a.m. they were awakened by the fierce barking of dogs. Mokete went
/out and .. ..
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out and saw the defendants The first defendant asked him who he was, what he wanted there, where he was going and where he came from. He answered all the questions. Then the first defendant insulted him in the Sesotho language and accused them of being the people who had come to his cattle post in order to invade or attack his child. The defendants attacked him with their sticks and set dogs on him. He tried to defend himself but as he was outnumbered by the defendants he immediately turned and ran away.
Mokete deposed that after chasing him for only a short distance, the defendants went back to the cattle post hut and he also stopped and followed them. As they approached the hut the 1st defendant exclaimed that there was another person inside and said that they should all do inside and size him and kill him. He did not see what they did to the plaintiff because it was dark but he again heard the 1st defendant say that they should put him into the hut and kill him Thereafter he saw the plaintiff jump over the fence and running away He followed him. The defendants chased them and set dogs on them and threw stones at them. One of the defendants had a torch and was switching it on and off repeatedly so as to blind them completely They ran for a distance of about 200 yards and Mokete could no longer see where the plaintiff was an( the respondents had also lost them He suddenly came to the edge of a cliff and realized that the plaintiff must have fallen down that cliff. He eventually found a safe path leading to the bottom of the cliff and found the plaintiff lying on a rocky place and being unable to move his body. It was clear that he had fallen over the cliff and had sustained serious injuries Having made him comfortable by making him lie on a blanket, he left him there and went home to ask for help At dawn he arrived at the scene of the accident accompanied by the chief of Matsieng and a few men The plaintiff was carried to the nearest village where a vehicle was found and the plaintiff was carried to Morija Hospital
Under cross-examination Moeti Mokete denied that when he and the 4th defendant arrived at the cattle post he pleaded with 4th defendant
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to rope the dogs because he was afraid of them His evidence is that the dogs were already roped He also denied that at one stage he asked the 4th defendant not to unfasten the dogs He also denied that they just ran away when the defendants arrived
The plaintiff says that when he was awakened by the dogs his elder brother was already at the door The 1st defendant asked him some questions and also insulted him. The defendants chased his brother for a very short distance and then returned to the hut They met him at the door where the 1st defendant caught him and pushed him back into the hut. He threw him down and pressed him onto the floor. One of the defendants struck him on the arm with a stick He vigorously struggled with the 1st defendant until he managed to free himself and ran away. The defendants chased him and set dogs on him. He ran away until he fell over a cliff and sustained very serious injuries. He was later found by his brother. He denied that he ran away without any cause
With regard to medical expenses and other similar expenses the plaintiff is claiming R2,000-00. The actual receipts he handed in during the trial make a total of R312-35. It must be borne in mind that the plaintiff is a semi-literate Mosotho to whom receipts did not mean much before he came to a lawyer. He sustained the injuries in 1981 and started these proceedings in 1983. After his discharge from Scott Hospital he had to undergo further treatment at Queen Elizabeth II Hospital for several months. He had to travel by bus every day from his home to the hospital ana had to be accompanied by another person. For the first month he had to come daily and thereafter he came to Maseru three times a week for several months. He estimates that his expenses were R5-00 per day I must say that I found his evidence rather unsatisfactory on this point and arbitrarily awarded him about R687-35 making R1,000-00 under the head medical expenses and other similar expenses.
Dr Moore of Scott Hospital testified that the plaintiff was admitted at his hospital on the 16th November, 1981 and discharged on the
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15th February, 1982. On admission he had a traumatic paraplegia and X-Ray showed a compression fracture of his lumbar spine. In addition he had abrasions to his left elbow and a swollen left ankle. On the 12th October, 1982 he again had the opportunity to examine the plaintiff and found that he had made a remarkable recovery but still had some residual paralysis of his hamstring muscles and his calf muscles and still had to wear a caliper He walked slowly and with difficulty.
Dr. John Malibo of Queen Elizabeth II Hospital is a surgeon specialist who examined the plaintiff on the 1st August, 1983 The examination revealed that the plaintiff had pain and a gibbus in the lower back and weakness of the feet, the right thigh and leg muscles were grossly wasted and was unable to move the right foot up or down or in and out. The left foot could not be moved in or out. The x-rays of the spine showed a fracture of the 2nd lumbar vertebra. The final opinion of the doctor was that the patient sustained injury to his spine and spinal cord which resulted in paralysis of both legs. The paralysis has improved steadily and now the patient is left with persistent weakness of both feet, which bearing in mind that the original accident was in 1981 will most likely not improve.
The report of Dr J.A. Shipley, a specialist at Pelonomi Hospital in Bloemfontein confirms the findings of Dr Malibo and Dr. Moore.
The version of the defendants regarding the events of that day differs very substantially from that of the plaintiff and his brother The 1st defendant told the Court that on the night in question the 4th defendant who is his younger brother and caretaker of his animals at the cattlepost, came to him and reported that people he did not know had arrived at the cattlepost The 4th defendant's worry was that when the strangers arrived at the cattlepost they instructed him to fasten the dogs As a result of this report the 1st defendant invited the other defendants to accompany him to go to the cattlepost and find out who those people were When they approached the cattlepost-hut the dogs started barking at them, at the
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same time they saw a man standing at the door of the hut Before they said anything that man jumped over the fence and ran away. They did not chase him but merely shouted at him. While they were shouting him another person came out of the hut. The 1st defendant says that he asked that person who he was He told him his name and the name of his father The 1st defendant then instructed the 4th defendant to go into the hut and put on the light. After light had been put on they all entered into the hut The stranger sat near the door and told thorn that the man who had fled was his elder brother, Moeti. He explained that Moeti probably got frightened when he heard the dogs bark and saw the defendants coming. The 1st defendant says that their conversation with the plaintiff was normal and they were not at all angry. The plaintiff suddenly rose and went out of the hut without saying anything. The 1st defendant says that he thought the plaintiff was going to pass water.
The 2nd defendant followed the plaintiff and ordered him to come back and immediately told the other defendants that "that person" was running away They all came out of the hut and shouted at him, come back but the man did not stop. The last time they saw that man was when he jumped over the fence and disappeared into the dark. They did not chase him, the only time they lit a torch was when they were trying to look for him, he denies that one of them switched the torch on and off repeatedly is they chased the plaintiff in order to blind him so that he could not see where he was going Before the defendants went to the hut they called at the cattle kraal and saw that the cattle of the visitors were still amongst the other cattle
The 2nd defendant's evidence is that the first person they saw near the door of the hut ran away after the 1st defendant had asked him who he was and what he wanted there He says that the 1st defendant is mistaken when he says they all went into the hut. His story is that he remained outside and inspected the sheep to find out if any clocks were missing He says that when he received the report about the people at the cattlepost
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he had the suspicion that they had gone there to steal and he and his companions intended to arrest them
The 4th defendant denies that at the time he was still trying to light the fire the defendants and the plaintiff entered into the hut.
Mr. Pitso informed the Court that he had failed to trace the 3rd defendant and closed his case.
Our law is that a person cannot be held liable for all the consequences of a wrongful act A line must be drawn "somewhere and on some principle between the more direct and immediate consequences for which the wrongdoer is liable, and those indirect, secondary and remote consequences which the person injured must be left to bear for himself." (Salmond on Torts, 11th edition, p 151). It is also our law that the test of foreseeability is irrelevant and that the direct consequences rule is applicable (Frenkel and Co. v. Cadle, 1915 N.P.D. 173). It is the plaintiff's case that the defendants assaulted him and that when he escaped and ran away they chased him, set dogs on him and threw stones at him. He ran away until he fell over a cliff and sustained the injuries described by the doctors. At the time of the chase it was dark and the plaintiff was not aware that he was running towards the edge of a cliff about 24 feet high. He was not very familiar with that locality. So the falling over the cliff of the plaintiff was a direct consequence of the wrongful acts of the respondents. Mr. Pitso submitted that although the cattle post hut was almost completely surrounded by cliffs there was an open space on the southern side of the hut through which the plaintiff ought to have gone. This submission loses sight of the fact that it was dark and that some of the defendants were running on the plaintiff's side in an attempt to intercept him The plaintiff had no alternative but to run in any direction to avoid being caught by his assailants.
A surprise was expressed by the defence counsel that although the plaintiff and his brother allege that dogs were set on them none of them
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was bitten by the dogs. I find nothing surprising in that because that would depend on the viciousness of the dogs and whether they were bold enough to come close to the plaintiff and his brother and bite them. It seems to me that the dogs were just barking and chasing after them but were
not vicious enough to come close to them and bite them.
The evidence of the defendants is that when the plaintiff and his brother ran sway they did not chase them. This is altogether improbable. They defendants came to the cattle post at midnight because they unreasonably believed that the plaintiff and his brother were thieves who had come to their cattle post to steal their animals. They were fully armed with their sticks when they arrived at the cattle post. It is improbable that when they approached the cattle post hut and saw the "suspected thieves" run away, they could not chase after them The natural reaction would be to chase them and catch them in order to find out what they had taken. The defendants are not telling the truth that they did not chase after the plaintiff and his brother.
The belief by the defendants that the plaintiff and his brother were thieves was also unreasonable. The plaintiff and his brother brought their cattle to the cattle post and slept peacefully when the third defendant left them on the pretext that he was going home to fetch mealie meal for the dogs. They slept in the hut until the defendants arrived and attacked them. Surely, no thief can behave like that. A thief could not bring his cattle to the cattle post from which he intended to steal and leave them there for the whole night until the owners of the cattle post arrived. To make things worse for the defendants, they actually saw the plaintiff's and his brothers cattle before they came to the cattle post hut. Despite the fact that they walked past these strange animals before they came to the hut they still held the belief that the plaintiff and his brother were thieves. A reasonable man would have changed his belief as soon as he found those people's cattle amongst his cattle and as soon as he saw one of them still standing near the door of hut and doing nothing The
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defendants unreasonably believed that those people were thieves and attacked them in the manner described by the plaintiff and his brother. I come to the conclusion that such attack was wrongful and unlawful. It is also a direct cause of the falling over the cliff of the plaintiff.
The plaintiff and his brother struck me as being truthful and honest witnesses who made no attempt to hide anything. On the other hand the defendants did not strike me as truthful witness. Their story was not only improbable but there were material conflicts in their evidence. Some of those conflicts are The first defendant after he had asked the plaintiff his name, they all went inside the hut and started asking the plaintiff more questions. The third defendant denies that he also entered into the hut, he says that he remained outside inspecting the sheep. At one stage the third defendant says that he never told the plaintiff and his brother that he was going to fetch maize meal for the dogs, but at a later stage he admits that it was the pretext he used when he left them.
I have come to the conclusion that the plaintiff has proved his case on a balance of probabilities. There will be judgment for plaintiff in the sum of R7,000-00 and the defendants must pay costs.
J.L. KHEOLA JUDGE.
24th March, 1986.
For Plaintiff - Dr. Tsotsi For Defendants - Mr. Pitso
