IN THE HIGH COURT OF LESOTHO In the matter
'MATSOTLEHO LEKHOLO Plaintiff and
'MAKALI LETSIE 1st Defendant
LETSIE 2nd Defendant
LETSIE 3rd Defendant
Delivered by the Hon. Acting Mr. Justice M. L. Lehohla
on the 29th January, 1987
Duly assisted by her husband to whom she is married
under customary law plaintiff issued summons against the three
first two being the daughters of the third, for :
the sum of M5,000.00 damages for pain,
sufferingmedical and incidental expenses as also contumelia,
costs of suit,
further and/or alternative relief.
The defendants are sued jointly and severally the one
paying the other to be absolved.
In her declaration the plaintiff has set out that on
31st January 1984 at the Bus Stop near the Market place Maseru, the
assaulted her by biting her on the finger, ear and cheek.
She further set out that
/as a ...
as a result of the said assaults 1st and 2nd defendants
were convicted by the Magistrate's Court in Maseru and sentenced each
fine of M60.00 or 6 months' imprisonment.
She further says she had to undergo medical treatment as
a result of the bodily injuries caused by the defendants' wrongful
assault. She alleges that she suffered substantial pain
and suffering as well as contumelia as a result of the assault on her
in the presence of the members of the society/among whom she
The action was opposed by all three defendants. In
response to the request for further particulars filed by the
stated that it was the 2nd defendant who bit
her on the left third finger which was not amputated.
She also stated that it was the 1st defendant who bit
off her right ear lobe. She further stated that the 1st defendant
also bit her
on the right cheek which has since recovered.
Plaintiff also indicated that she underwent medical
treatment on 31st January, 1984 at Queen Elizabeth II for injuries
assaults by defendants. She further stated that a
medical report was attached. However it emerged from evidence that
proof of her treatment went missing and could not be
recovered from papers entrusted with her then attorney of record Dr.
But because both counsel in the present proceedings have had
cause to refer frequently to the criminal proceedings in the
Court and because a copy thereof was made available to
me I have consequently had cause to refer to it and in it I
the Report on
injuries consists of:-
/"Human bite: ...
" Human bite : missing - of the outer ear.
Laceration below (R) eye and the last lacerationon
finger third (L)"
I have read that the injuries were caused by "human
bite" and that the degree of force used is said to have been
and that however the patient was not admitted; a factor
used by Mr. Khauoe in closing addresses to in-dicate that the claim
on this head ought at best to
Plaintiff in complying with the request to state Clearly
how the sum of M5,000.00 is made up supplied her answer in the form
Past medical expenses ... ... M 50.00
Future medical expenses . ... ... ... M 90.00
Loss of Income past .. ... ... ... M1,500.00
Future loss of income ... ... ... ... M2,360.00 .
Pain and suffering and disfigurement ... M1,000.00
their plea the defendants deny that they assaulted plaintiff and
further state that 'Makali Letsie the 1st , defendant was also
injured by the plaintiff on the scalp and sustained a wound which had
to be stitched by a doctor.
They further concede that even though plaintiff
underwent medical treatment they deny liability for the injuries
suffered by her because:-
(a) " The assault was "not" wrongful or
unlawful in that
the action was in self defence." .
(b) " The injuries sustained by plaintiff were
minor confirmation thereof being that the plaintiff was not
Defendants deny in toto the plaintiff's
declaration that she "consequently suffered substantial pain and
suffering as well as contumelia "and put
her to proof thereof as
well as assert that her claim of items enumerated under para 7(a) and
(b) are exaggerated as a result of
being based on exaggerated pain
The minutes of the pre-trial conference are very brief
and seem to have done very little by way of shortning proceedings in
The only and scarcely helpful achievement they made was
the admission of the names and identities of parties to these
a matter that to me does not seem to have required the
holding of a pre-trial conference to resolve.
Otherwise matters not admitted in the pleadings were
accordingly referred to trial.
In the medical report submitted by 1st defendant as
Exhibit "B" it is revealed that she was examined on 1st
for injuries sustained in a fight. Of importance was
confirmation by her doctor that her pregnancy was not harmed.
the medical report showed that she had a scalp wound which
was stitched at Queen Elizabeth II Hospital (hearsay) and that she
pains on the sides of the body including some undecipherable
mackle consisting of two words preceded by the phrase "there
were no" concluded in the word "then".
The evidence led by plaintiff is to the effect that
31st January 1984 she was at the market place for the
purpose of selling peaches. While there at about 5.00
p.m. the three defendants came to her in the following order:- 1st,
2nd defendants. Then the 1st defendant stood
opposite,plaintiff and uttered these words:- "my mother can be
tormented butt not
by these "likhohloana""meaning
ill-bred stripplings." She uttered that expression three times
'Mants'asa Nts'asa a matronly lady in her late 60s
who has been living apart from her husband for. upwards of 30 years
lists and addressing herself to 1st defendant said "Hey
you strippling, who do you say is a strippling?" The 1st
replied that she was not referring to P.W.2 but rather to
this one pointing at the plaintiff who was sitting with her nephew on
buck of the bakkie. Indeed plaintiff says when 1st defendant
uttered these words she was looking at plaintiff whereupon she said
if 1st defendant was referring those words to her she (1st defendant)
is a strippling. P.W. 2 in re-examination explained that the
"serathana" is an ill-fed little child whereas the word
sekhohloana is a young child whose mother fell pregnant while
child was still at suck. I thus have no doubt that it is an insolent
word to refer to anybody.
After plaintiff had retorted thus to 1st defendant the
latter hurled a mug at her but because she ducked otherwise took
the mug flew wide of the target.
Plaintiff then meaning to run away as she realised that
the defendants were bent on a violent set-to at her took off one of
to avoid tripping on landing from the bakkie. Her shoes
are what are referred to as pencil heeled shoes having rather high
Before she could take off the other shoe the defen-dants
had closed in on plaintiff. Finding herself thus hemmed in with no
avenue of escape from the defendants and while 1st defendant
was trying to grab at her plaintiff hit her with the shoe she was
However the other defendants managed to grab plaintiff
and pulled her off the buck of the van to the ground.
Immediately thereafter 2nd defendant bit plaintiff
on the 3rd finger of her left hand while 1st defendant
bit her on the cheek and immediately thereafter on the ear. Plaintiff
by the defendants because they were many and she
could not break free of their grip.
P.W.3 Pitso the plaintiff's husband came while 1st .
defendant had her teeth fast stuck in her ear. In his attempt to
defendant from plaintiff P.W.3 was horrified to notice
that part of plaintiff's ear was removed as it was stuck between
defendant's teeth. Much blood flowed from plaintiff's finger and
cheek. She was sent to the dispensary for treatment. She swore
her injuries on the ear and finger underwent treatment for six
She testified that she does not have full use of her
finger. Her occupation is to knit jerseys. She testified that for
she used both hands but mostly the left and that before
receiving the injury on her finger she produced between two and three
per day. But since being injured and taking a spell of six
months from then as she spent it recovering she barely manages one
jersey or even less per day.
Before receiving the injury on her finger she would
collect M100 from her husband who used to sell the jerseys for her.
that during the six months of her recovery she may have
lost M1,500 of her earnings. To date which is about 11 years after
exclusive of the six months of her inaction she estimates
that she has lost about M6,000.00.
The plaintiff testified that she did not provoke the
attack on her. It took place at the specific place of her work. The
been thrown at her and she was dragged to the ground by the
She submitted as her reason for including the 3rd
defendant the fact that 3rd defendant was holding plaintiff's shoe
and waving it
about to hit and prevent people who were trying to
intervene on her behalf. However P.W.3 who came to intervene was not
hit by 3rd
defendant. At the Magistrate's Court where 1st and 2nd
defendants were being charged with assault on plaintiff they alleged
plaintiff had alleged that they were in love with her husband.
They did not allege that plaintiff was the attacker justifying their
action to defend themselves. Under cross-examination it was put to
her that 2nd defendant never said plaintiff alleged either she
defendant was in love with her husband.
Reference to the record of depositions at Magistrate's
Court shows that 2nd defendant never said plaintiff alleged that she
love with her husband.
It was also revealed that on 28th May 1984 plaintiff was
examined by Dr. Phooko whose report showed all the wounds had healed.
plaintiff insisted that she still had
to go to Queen II hospital because of the discomfort
suffered due to her injuries. She testified that even as of 28th May
ear was being,treated with smearing lotions prescribed by
Queen II even after she had been to Dr. Phooko.
Plaintiff said 3rd defendant did not hit her nor does
she know or is she aware of anything that prevented her from hitting
she said she saw 3rd defendant hitting an intervener.
The Magistrate's Court record does not suggest that plaintiff
3rd defendant's conduct. Asked about this she said
other defendants facing the charge never asked her about their
she insisted that in her evidence in chief she told
the magistrate that 3rd defendant hit a potential intervener and
the magistrate did not record this portion of her
evidence. Nonetheless she said the magistrate recorded correctly her
in the Court a quo.
Plaintiff said she failed to point out that she was
assaulted with a stone on the cheek because no question was put to
her to enable
her to point out this fact. However when it was
pointed to her that her Counsel had asked her what other injuries she
and that she never mentioned use of stone she conceded
she could not reasonably account for her failure. She further said
did not mention this fact before this Court because she did
not mention it at Magistrate's Court. In truth plaintiff did not
use of stones in Magistrate's Court.
Plaintiff said she failed to send her finger for further
medical treatment or therapy after June 1984 because she had no
/She also ...
She also asserted that her hearing is no longer normal
since receiving the assault. She cannot hear unless one shouts at
has caused tremendous strain on relations between her and
her husband. She is so embarrased by the cut on her car that she has
wear her doek in a manner that ensures that the cut is covered and
thus hidden from view.
From January to June 1984 she could not knit jerseys
from her station because she was not working then on account of
could not sell peaches either because of the same
reason. She cannot recall how many finished products her husband
sold for her
nor say how many she had remaining in her stock because
she had handed her book containing these recordings to Dr. Tsotsi who
It was put to her that it was very strange that despite
her failure to hear properly since receiving injury on her ear she
any doctor about this problem even though she wanted her
hearing to be restored. She suggested that she expected the doctor
this inability to hear without being told.
Plaintiff denied that she entered a quarrel between
P.W.2 and 3rd defendant and insulted the latter.
She said the degree of her disfigurement is so
great as to warrant M1,000.00 damages.
To the question put to her finally regarding the fact
that plaintiff presently requires no damages for future medical help
Dr. Phooko shows that she is healed she conceded by saying "I
Under re-examination she said she could not go to
Bloemfontein for therapy because she was unable to raise
the M95 ..,
the M95 required for that purpose.
P.W.2 Mants'asa Nta'asa did to a large measure
corroborate P.W.1 as to the events of that day. She testified that
she saw defendant
1 approaching P.W.1 who was sitting at the back of
her van stationed four paces from her own.
Defendant 1 uttered the words complained of and P.W.2
asking inquired by referring them to her whether
defendant 1 was
calling her a strippling. Defendant 1 said she was
referring those words to P.W.1 who retorted and referred those words
1. There and then 1st defendant hurled a mug at P.W.1
who dodged it. Then 1st and 2nd defendants grabbed at P.W.1 and led
they came from. When plaintiff got down from the van she
hit 1st defendant on the forehead with the heel of a shoe.
A short while after being careered from the immediate
vicinity plaintiff screamed and P.W.2 came following. Her approach
to the place
where 1st and 2nd defendants had engaged plaintiff
in a set-to was obstructed by 3rd defendant who was waving
against whoever was trying to intervene. She
testified further that at the time 1st defendant was biting
plaintiff's ear while 2nd
defendant was biting her above the cheek.
A girl who had been sowing nearby rushed to the scene only to be
slammed between the shoulders
with a shoe by 3rd defendant.
Before the words complained of were uttered P.W.1 had
not said anything to defendants.
Asked if in the Court a quo she did not include
the finger among injuries she observed she replied that she was not
asked about the finger. She said she mentioned
an injury on
plaintiff's elbow. The record does not however make
reference to an injury on this elbow. She was surprised
that P. W. 1 never mentioned any injury on the elbow.
Asked whether she is aware that the doctor showed that
injuries were on the right ear and cheek and therefore could not have
inflicted simulteneously she said that was possible. She said
2nd defendant bit plaintiff on the right cheek and she saw her. She
said she was not surprised that the victim of the assaults said the
injury on her cheek was inflicted by 1st defendant because "As
she was being fought and screaming she could not have seen,"
Confronted with the question put to her in the Court a
quo, by second defendant namely "Did you say I bit P.W.I on
the cheek or on the finger - ?" She replied "I remember
question" "What was your answer - ? That I saw you
bite her on the cheek." "But you are not telling the truth
again. You said on the finger - ? No I did not say so."
Needless to say the record of the Court a quo shows on page 5
that P.W.2's answer to defendant 2's question "Did you say I bit
P.W.1 on the cheek or on the finger" was
"on the finger."
Again she denied saying to the Magistrate that she did
not notice if 2nd defendant bit P.W.1 but rather saw her bending over
Again in her evidence in chief in the instant case P.W.2 said
3rd defendant did not hit her because she took avoiding action by
moving backwards but under cross examination she said 3rd defendant
hit her. The record had to be read back to her and she took
under lack of memory.
From this point P.W.2's evidence is not anything but
muddled; contradicting not only her previous statements in
the Court a quo but her own evidence in chief and
/given by ...
given by her own self under cross-examination including
P.W.1's evidence in the present proceedings.
She denied that the source of the quarrel between
herself and 3rd defendant or the involvement of defendant 3 in the
was that defendant 3, had been asked by P.W.3 to
sweep for him where his stand was. Even though P.W.1 says this was
the case P.W.2
says P.w.1 was not there. She denied that in the Court
a quo she said P.W.1 threw the shoe at 1st defendant. Yet on page 4
record in that Court that is what,she said..
It,is due to P.W.2'9 evidence that to a large measure it
became necessary to free 3rd defendant from liability.
P.W. 3 is plaintiff's husband a layman of the illeterate
variety. He corroborated,his wife's evidence. He is the one who
i from P.W.I and in the process P.W.1'3 portion
of the ear remained stuck between 1st defendant's teeth. As he
approached the scene
he saw defendant 2 coming from the direction of
the fight and when almost opposite him she spat out some blood. I
did not . think
it served much purpose to subject him to intense
cross-examination about calculations because he was illeterate. All
in all his evidence
was tolerably good.
Evidence for the defence was given by 1st defendant
and 2nd defendant.
1st defendant said plaintiff had a, stand from which she
sold peaches a few paces from her own. On 31st January 1984 1st
went to work as usual. She saw,3rd defendant sweeping the
place where P.W.2 works. This place, was used by P.W.3 as well.
asked 3rd defendant why
she swept that place and was replied that it was in
compliance with P.W.3's instruction whereupon P.W.2
swore at her and called her an old witch. There and then P.W.1
entered the lists.
2nd defendant was not there when P.W.1 entered the
quarrel. P.W.1's husband was called by defendant 3 while P.W.2
at her within
defendant 1's hearing. P.W.3 came and explained that he
sweep had asked defendant 3 to sweep the place in
left. Immediately thereafter P.W.1, raised an objection
to the effect that 3rd defendant talks to her husband but not. to her
hurled abuse at 3rd defendant saying of her "You have this
sort of habit you devil of an old woman.". Defendant one did
feel obliged to stand by when her mother was thus being abused. Then
the exchange of abusive words relating to "sekhohloana"
took place except that an additional factor was brought into scale
namely that P.W.1 is alleged to have said to defendant 1 "If
say I am sekhohloana, sekhohloana is your mother," further that
defendant's mother's front passage was referred to abusively
who did not mince her words but rather laid emphasis on what woman
she was referring to by saying "this very one with
defendant 1 are walking about."'
Defendant 1 wants the court to believe that defendant
was not engaged in the fight. She concedes that at
thetime she threw the mug at P.W.1 she was in no danger of
anyattack from P.W.1. She said she fought P.W.1 because
thelatter had sworn at her mother. Asked what her mother
didwhen being sworn at she said she did nothing. Asked why
shedid not follow her mother's example and go and fetch
someone to reprimand P.W.1 for swearing at her mother
said she was angry.
Confronted with the statement she made in the Court a
a quo about the source of the fight, namely that
P.W.1 said 1st defendant was in love with her husband 1at defendant
conceded. She also
conceded that in the Magistrate's Court she said
she, bit P.W.1. on the ear and cheek and said . she still adheres to
Much as defendant 1 was trying to protect defendant 2
by saying she was not at the scene of the fight till its very tail
she was placed in a cleft stick when it was pointed out
to her that in giving evidence in the Court a quo at page El
defendant 2 said she was there and she said her mother should not be
insulted by P.W.1 for the two are not equals. Defendant
this point. Needless to say defendant 2's testimony in that Court
shows that she was not only there but she participated
in the fight
for what she felt was a just cause, namely intervention on her
mother's side lest her mother be abused with impunity
in her own
presence. She bit P.W.1 on the finger. There is no reason why she
could not cross-examine P.W.1 on the point if she did
not in fact
bite her as P.W.I alleged.
' In the light of what was revealed concerning
defendant 2's testimony in the Court a quo much of her story
in this Court is mere fabrication and an attempt to minimise her role
in the unlawful attack on P.W.1.
At page 9 of the Magistrate's Court her final answer to
the prosecutor's question about gives a coping-stone to the entire
of her falsehood in the present proceedings: "Is it
correct that you were not there when the fight started - ? I was
In this Court she said she was not there when the fight
started. She further made an attempt to show that contrary to P.W.1's
that she was not producing any jerseys during the period
/of her ...
of her six months' recovery, P.W.I was producing newly
Because of the foregoing I have rejected the 1at and 2nd
defendants' defences. 3rd defendant is freed from any liability and
Much as plaintiff has not been able to produce expert
evidence regarding various items in her claim I have formed a firm
she was truthful! Plaintiff is of apparent age of
38,/is/aelf-employed,but is not a sophisticated woman.
I have taken the view that the attack on her was
unprovoked and unlawful. Indeed she did hot do much by way of
adducing expert evidence
or even employ means of effectively
mitigating damages. However I have come to the conclusion that
plaintiff has nonetheless proved
her case on the balance of
probabilities.Regard being had to the fact that she is not a
sophisticated lady and that her marriage
to an illiterate husband
does not put her any near the position to live up to the standard of
reaction expected from a sophisticated
married couple, and the fact
that there is a high degree of probability that she failed to have
her injuries attended to by physio-therapists
surgeons because of inability to make ends meet, I conclude that the
little that she did by way. of continuing to
knit jerseys albeit her
production was much reduced la sufficient to show that she did in
fact do something to mitigate damages.
decided to give effect to that
Consequently she is awarded damages as follows:-
(a) past medical expenses in the amount of M 50.00
(b) future medical expenses in the amount
of ...... M 75.00
loss of past income in the amount of M 900.00
future loss of income M1,950.00
pain and suffering disfigurement and
contumelia. M 500.00
: Henning vs South British Insurance. Co.. Ltd.
1963(1) S.A. 272..
Hollond vs Bendix in the quantum of damages 1969 at
Bay passenger Transport Ltd vs Franzen 1975(1) S.A. 269.
Also : Bell vs De Villlers 1970 Vol.11 : Quantum of
damages at "385.
M. L. LEHOHLA ACTING JUDGE
For the Plaintiff : Mr. Monyako For the
Respondents : Mr. Khauoe
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