IN THE HIGH COURT OF LESOTHO
In the matter between:
SEETSETSA MAHAO (as father PLAINTIFF and
guardian of MOJELA MATETE)
RANTSEBO SUPING Ramalefane Defendant (as
father and guardian of BOSOFO RAMALEFANE)
Delivered by the Hon. Mr. Justice Sir Peter Allen on the
9th day of September, 1987
This is an action for damages for assault which occurred
on 16 November 1980 at the village of Lihlokong in Mafeteng District.
is an old case and in 1980 both parties were aged about 17 years,
hence their fathers were named as guardians for the purposes of
action. Now, seven years later, they are both adults aged about 24
years. The defendant Bosofo is in fact the uncle of the
They each told a different version of what occurred and
I found neither of them to be very impressive as witnesses. This was
because of the fact that the events occurred a long time ago
and neither of them was sophisticated or very intelligent.
According to the plaintiff Mojela (P.W.1) he was living
with his grandmother at the time. At about 6.00 p.m.
/she sent ...
she sent him to deliver a letter to a relative in a
village called Lebeta, about 2½ kms from where they were living.
Because it was
evening he went with three friends. boys of his own
age, called Ntjapeli, Molefi Matsoso and Sephepo Thupeng.
On their way back, at about 8.00 p.m., at a place
somewhere between Thoteng and Mokhobong, they found some cattle
unattended. Mojela testified that the fields there
were reserved pasture and that their chief had recently ordered that
found cattle grazing on the reserved pasture should seize
the cattle and take them to the village pound. They decided to do
and, at that moment, four boys appeared who were apparently
herding the cattle. They were the defendant Bosofo (DW1), Khali
(DW2), Moruti Ramalefane and another boy. Molefi told them
that they were impounding the cattle and the plaintiff and his
started to drive the cattle in the direction of the
village. The defendant and his friends resisted and tried to prevent
from moving away by beating at the cattle in front with
their sticks. When they argued about it, Mojela said that the cattle
on a reserved pasture.
They did not seem to be effective in stopping the
movement of the cattle since they reached the village area. Here the
boy Khali (DW2)
who was younger than the others, ran away. Mojela
said that Ntjapeli went to report to the chief and he did not see the
Bosofo. when they reached the pound.
It was at this point that Mojela was suddenly stabbed in
the back with a clasp-knife. It was actually in the
shoulder blade on the right side (though no medical
evidence of this was produced). He turned round and saw Bosofo with
and Bosofo immediately stabbed him again above the right
eye. The blade penetrated down into the eye. Mojela stated that
"I have stabbed you" and then ran away.
Mojela was taken first to Mafeteng Hospital, but not
until the following day for wome unknown reason. Nine days later, on
1980, he was referred to the Queen Elizabeth II Hospital
in Maseru from where he was discharged on 8 December 1980. He thus
a total of three weeks in hospital as on in-patient, During
that time it was found that his right eyeball had been perforated and
the eyelid lacerated. He had lost the sight in that eye so the
eyeball was eviscerated (removed) by operation and the eyelid
According to the written report of Dr. 'Musi Mokete, an
ophthalmologist, (exhibit 'A'), the plaintiff lost the sight of his
eye but he retained normal full vision in his left eye. An
artificial eye was supplied and fitted into the empty socket which
reduces the disfigurement somewhat.
As I have already remarked, there was no medical report
or other information with regard to the first injury, the stabbing in
back, which was admitted by the defendant. The actual claim makes
only a passing reference to it and it is thus not possible to assess
its seriousness or effects, if any.
The defendant Bosofo's version of the incident differs
from that of the plaintiff in several ways. First he-insisted that
of the cattle and assault took
place, not in the evening as Mojela stated, but in the.
early morning before dawn. Bosofo stated that he drove six cattle to
fields at some distance from the village of Lihlokong where he
was going to plough. He was clone at first, but, on the way, he met
the boy Khali Marake (D.W.2) who was driving about seven of his
parents' cattle. They kept the cattle apart from each other. Then
met the boys Sephapo and Molefi who assisted Bosofo to drive his
cattle. Bosofo was carrying a lesiba (wind instrument).
The plaintiff, Mojela and Ntjapeli then came and seized
Khali's cattle and started to drive them away. They joined with the
cattle and they were all driven together. There was no
mention of the other two boys, Moruti and the unnamed one, mentioned
plaintiff. According to Bosofo, the two boys Mojela and
Ntjapeli first helped him and then assisted the plaintiff to take the
Bosofo said he asked where they were taking the cattle
as he was on his way to the fields to plough, but he received no
added that neither he nor Khali tried to prevent the cattle
from being driven towards the pound and he did not ask any more
He just walked beside the cattle as they were driven along
and nothing occurred on the way. There was no explanation of why he
so tamely to the seizure of the cattle and it appears to me
that if this was true it may have been because he knew that the
had been properly seized. Otherwise why not resist or, at
least, why not run off and report to his parents or the chief?
/Bosofo said ...
Bosofo said that they arrived at the village at about
5.00 a.m. when he was attacked by the plaintiff, Ntjapeli and
Sephapo. The plaintiff
hit him with a stick on his left shoulder and
then struck another blow which he warded off with his lesiba which
got broken then.
The other boys did not hit him and he gave no reason
for this sudden attack when he had been walking beside the cattle
After breaking the lesiba the plaintiff caught hold of
Bosofo's blanket and called to his friends. Then Bosofo tried to get
he drew his knife from his pocket and stabbed Mojela in the
shoulder at the back as Mojela turned to call his friends. When
felt the blow he turned round and the defendant stabbed him in
the eye and ran away. He reported to his father and brother and a
vehicle was found to take Mojela to Mafeteng hospital.
Bosofo maintained in Court that the village people had
appointed adult cattle rangers and that the chief had not authorised
the people to impound cattle. He added that there was no
reserve pasture where his cattle were seized.
During his examination-in-chief and cross-examination
the defendant was not asked to attempt to justify the stabbing of
I asked him about this. His answers were as follows:
" I stabbed him because he held me and called to
the others to come. I tried to break away from him but I failed. I
the two other boys whom he called were close and I feared
/they would ...
they would injure me. I did not know whether he would
kill me because the others came. I thought I was in danger when he
hold of me and called the others to come."
At no time during his main testimony had he mentioned
that he thought he was in any danger. It was only at the end, when I
word myself in questioning him, that he claimed that he
thought he was in any danger.
Thus,during his examination and cross-examination, there
was no suggestion of self-defence being his explanation for his
That was why I questioned him about any possibility of
danger to test his reaction. It was not very convincing considering
he was legally represented.
In his written defence plea, prepared by his attorneys,
it was asserted that he acted "in self defence as his lesiba was
and his stick had fallen down, so he resorted to the use of
his knife because thre were four
people attacking him " But in Court, he said it was
three boys who attacked him and only the plaintiff who
actually hit him. At the end of his cross-examination he added,
as an after thought, that someone threw a stone at him,
but this had not been mentioned before.
The defendant was charged by the police at Mafeteng with
the offence of assault with intention to cause grievous bodily harm.
guilty and, because he was still a juvenile, he was
sentenced only to three cuts with a light cane. The court record was
as exhibit 'B'. In this court the defendant asserted that he
did not plead
guilty, but I prefer to believe that court record.
Thus the main issue in this case is whether or not the
defendant was acting in self defence when he stabbed the plaintiff
so, did he use excessive force in the circumstances.
The plaintiff stated that there was no fight and that
Bosofo did not stab him in self-defence. Unfortunately none of the
testified in Court, except for Khali (DW2), who said
he ran away before the stabbing occurred. So it is the word of the
against that of the defendant. It does seem odd that
according to the defendant, he walked beside the cattle doing nothing
they reached the village and then he attacked the plaintiff
without any additional reason. But it is not impossible, for he may
taken time to work himself up to the point of making the attack.
If so then it would be inexcusable.
If the defendant is believed then the plaintiff attacked
him with a stick and hit him on the shoulder and also struck his
broke. He then seized the defendant's blanket. This does
not appear to have been a very dangerous attack on him, especially
in mind that they were teen-aged boys from the same village
and related to each other. The matter of seizing the cattle could
have been sorted out by the chief or other adults so it does
not seem to be all that much of a provocation. Since they were
approaching the pound by then there was no apparent reason or
need for the plaintiff to attack the defendant and I find it
to believe that he actually did so. It seems much more
likely that the defendant was the attacker.
But, even if the plaintiff did strike at Bosofo with a
stick, would that justify Bosofo in using his knife?
Just as in criminal cases, it is lawful for any person
to use a reasonable degree of force for the protection of
himself or others
against any unlawful use of force. Force is not
reasonable if it is either unnecessary (greater than is requisite for
purpose) or disproportionate to the evil to be
prevented. In an old English case of three hundred years ago, Cook
v Beal (1697)1 Ld. Raym. 176, it was held that,
" A man cannot justify a maim for every assault; as
if A strike B, then B cannot justify the drawing his sword and
his hand; but it must be such an assault whereby in
probability the life may be in danger."
This is still the position in law today. It was why I
questioned the defendant about what, if any, danger he thought he was
that time. I have already quoted his answers above.
If you are attacked with a deadly weapon the law permits
you to defend yourself with a deadly weapon or with any other weapon
may protect your life. The law does not concern itself too
much with distinctions and details in such matters but rather with
can be considered to be reasonable in those particular
This defendant said nothing about feeling that he was in
any danger (until I almost suggested it to him). And until then there
no suggestion that he feared for his life. He was only struck on
the shoulder with a stick. I do not accept that he was in danger
perhaps one or two blows with the stick, even if he is
believed about that, and I did not find him to be a convincing
To make it worse, whichever of these boys is believed,
the plaintiff actually had his back to the defendant when the
stabbed him. This is most significant. There can be
no justification for such a dangerous assault by the defendant in
But he made it worse by stabbing the plaintiff a
second time. This time in the face, which is an assault that may have
more dangerous to life.
I do not believe that the defendant was, in fact, acting
in self-defence but, even if he was, I would hold that the
were disproportionate and excessive in the
circumstances. Consequently I also hold that the defendant is liable
to the plaintiff
for the assault and the consequences of it.
The next issue is the quantum of damages. With regard to
the injuries themselves, as I have already remarked, there was no
evidence or report concerning the stab wound in the
plaintiff's back. Other then the fact that the defendant admitted
that he did
so stab the plaintiff the consequences are unknown.
,With regard to the eye injury, this has already been
described above. The plaintiff lost his sight in one -eye and there
added disfigurement of losing the eyeball itself and
requiring an artificial eye to replace it. Clearly this was a very
injury which will affect the rest of this young man's life.
/He said ...
He said that he had had to give up playing football,
that he had become a heavy smoker and that he was shy and
his facial disfigurement. He added that he
suffers pain and headaches and he has become short-tempered and gets
into fights easily;
but it is not possible to know whether this last
is a change in his temperament as a result of the injury or whether
he was like
that before. His mother, 'Mamojela Matete (PW2),
testified that he had become forgetful and that he gets tired easily
and does not
care for the company of other people, which, she said,
is a change from his former character. With regard to his smoking and
habits, these could just as easily have developed normally
because he has grown from a teenager into an adult man. But clearly
the disfigurement and the obviously unbalancing effect of having
only one eye have had some considerable consequences and have
his life. I accept, too, that he suffered pain and shock at
the time of the injury and afterwards.
As to his education, it appears that he left school in
the middle of 1979, the year before the injury, in . order to take
herding. His mother said that he did not return to take
up his schooling later because of his headaches and shyness resulting
his injury. But there was no evidence of how well he was doing
at school. It is a pity that the eye specialist's report (exhibit
'A') confines itself to the visible physical aspects of his injury
and makes no reference to either the physical or mental consequences
of it such as the alleged headaches. The Court is thus left with the
probably biased, and possibly exaggerated and inaccurate,
opinions of the plaintiff and his mother.
One thing is clear and that is that in the seven years
since he lost his eye, the plaintiff appears to have done little or
to mitigate the consequences, of his injury. He has one good
eye and he could have taken up his schooling again or looked for a
He is now 24 years old and still living at home dependant on his
parents. He is clearly physically fit and well-dressed. By now
ought to have overcome his self-consciousness and he should be out
and about acting like an adult and living his own life and
himself. It is absurd that he is idling his life away at home and
expecting his parents to keep him as if he was totally
Many people with a similar handicap have learnt to overcome it and
have become independent and self-supporting. He has
for loss of the amenities of life but he would not have lost so very
much if he had really made an effort in this
direction. He is
expected and required to mitigate his loss and I have little or no
sympathy with him in this connection.
The plaintiff is claiming the following damages:-
Loss of sight in one eye 10,000
Pain and suffering 500
of amenities of life 20.000
Hospital and Medical Expenses 45
Of these the first four are for general damages and the
last, the claim for medical expenses, is special damages which must
specifically. The plaintiff's
mother (PW2) testified that she paid M50 for his medical
treatment, although the written claim is only for M45. She added that
has receipts but did not bring them to Court. She admitted that
her lawyer had asked her to bring them to Court but she forgot. This
is not a matter where no receipts were issued and the Court could
possibly consider making a fair estimate. Here there were receipts
and so they should have been produced. Further, the witness has
testified to a claim which is different from that in the plaintiff's
summons. Since documentary evidence was available but was not
produced in Court 1 find that part of the claim unproved and so no
award can be made under that head.
The remaining four heads of claim are, as I have
said,for general damages and I consider that they should have been
claimed as such
in a lump sum under one head. Put together they are
damages for the loss of sight in one eye, pain and suffering, loss of
and contumelia. These cannot be assessed on any arithmetial
or logical basis. As was said in Sandier v Wholesale Coal
Supplies Ltd, 1941 AD 194, "There are no scales by which
pain and suffering can be measured, and there is no relationship
and money which makes it possible to express the one in
terms of the other with any approach to certainty". The usual
adopted is to take all the circumstances into consideration
and award substantially what is in fact an arbitrary sum.
It is sometimes helpful for the Court to consider awards
of damages made in earlier cases in similar circumstances and
injuries.. 1 was hoping that there would be some such
citations from earlier cases in this
Court, but counsel on both sides seem to have been
unable to find any. Mr. Monaphathi for the plaintiff was able to cite
case, which came from South Africa. This was AA
Onderlinge Assuransie Assosiasie BPK v Sodoms 1980 (3)S.A. 134,
in which a 29 years old farm labourer lost one eye and was awarded
R9,700 which was confirmed on appeal. This took
into account that
there was intense pain, two surgical operations were required and
that the plaintiff could no longer drive a vehicle
or work as a
welder, which apparently he sometimes did.
I agree with Mr. Pheko, for the defendant, that the
claim for M31,000 is much too high in the present case. I
shall take into account the fact that the sight has been
lost in one eye, that there is a disfigurement, there
was pain and suffering and there has been a loss of some of the
life, but also that the plaintiff could have taken, and
could still take, steps to alleviate and mitigate his loss.
Bearing all this in mind I consider that an award of
M9,000 total general damages would be appropriate and fair in the
Accordingly judgment is entered in favour of the
plaintiff in the sum of M9,000 general damages with interest at
the court rate
and costs in the suit.
P.A.P.J. ALLEN JUDGE
9th September, 1987
Mr. Monaphathi for the Plaintiff Mr. Pheko for the
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