IN THE HIGH COURT OF LESOTHO
In the matter of
'MASHABA RAMOKHELE Plaintiff
NTJEZA MAOPE 1st defendant
ATTORNEY GENERAL 2nd defendant
Delivered by The Hon Mr Justice Sir Peter Allen on the 9th day of March, 1988
The plaintiff brought this action against the police for damages for assault and for the cost of replacement of vehicle tyres and tubes and a house door
The incident occurred at Likhutlong, Mohale's Hoek on the night of 24/25 November 1984 at the plaintiff's home. She was there with Michael Ramokhele (PW2), said to be her husband by customary marriage
Apparently Ramokhele is a taxi operator in the area and well known to the Mohale's Hoek police At the police station was a Combi registered number E.1129 which had been seized by the police as a suspected stolen vehicle The driver of it worked for Ramikhele and the police wanted to interview Ramokhele about it According to them they sent messages to him, calling on him to report to the station but he did not respond.
At sometime between 10 and 11.00 p.m. four police officers went by oar to the plaintiff's home They were Detective W.O. Jane (DW2), Tpr. Malefane (DW1), Det Tpr Mafereka and Tpr. Nyapholi. W O. Jane said that he had been directed by the officer-in-charge of C I.D. Captain Maope, the first defendant, to go and arrest Ramokhele. W O Jane knocked on the door and called out his name and said they were looking for Ramokhele. He heard whispering from inside the house and called out his name again.
The plaintiff called out that she was not prepared to open the door because it was dangerous to do so at night and they should go away and come back in the morning She did not say whether Ramokhele was there and he remained silent throughout All of these policemen were well known to both the plaintiff and to Ramokhele.
According to W.O. Jane, he and Tpr Mafereka went in the car to Captain Maope's home leaving the other two troopers to guard Ramokhele's house But Maope (DW3) and Malefane (DW1) both testified that Mafereka was alone when he collected Captain Maope.
At any rate Capt Maope came to the scene in his own car. At some stage one Tpr Makhakha, in uniform, was brought from the station and, it seems, there was a policewoman called Lichapa also at the scene It was probably after midnight by then and so already 25th November.
Capt Maope knocked on the door calling for Ramokhele and said that he was Capt. Maope The plaintiff
replied that Ramokhele was not there. She added that she would come to meet the police in the morning and she would not open up at night.
Maope then sent W.O. Jane to fetch the local head-man named Matsolo. He came and the position was explained to him. He knocked on the door and called out his name and said "Open for the police, Ramokhele. They are looking for you." Still Ramokhele kept silent and the plaintiff answered, "I will see them tomorrow."
It seems rather strange that the plaintiff kept saying that she would see or report to the police on the next day when she was not the person they were asking for and she was well aware of that fact.
The headman indicated that he had not been success ful and told the police to proceed with their duty. Capt. Maope instructed Jane to open the door, which he did by kicking that part alongside the lock It then opened According to the plaintiff and Ramokhele, the door burst open and was smashed to pieces. The police denied this
Capt Maope entered the house with Jane, Mafereka and Malefane. According to the plaintiff and Ramokhele, all four police officers were very drunk, staggering about and smelling of liquor. They added that Maope said to Ramokhele, "I told you I would get you " He then ordered that Ramokhele should be handcuffed. The plaintiff's and Ramokhele's version of this was that Tpr. Mafereka tried to handcuff Ramokhele, but he was so drunk that he handcuffed Nyapholi by mistake instead
This was denied by the three police witnesses, who all said that no one was drunk and that in fact it was Nyapholi who handcuffed Ramokhele and that he did so without difficulty.
According to the police, Ramokhele was then taken away to the police station on foot by two troopers The others followed behind in the cars with Capt Maope coming last.
The plaintiff alleged that as the police left she switched on the kitchen light, which had been off before The other police officers continued on their way with Ramokhele, but four of them, Capt Maope, Jane, Mafereka and Nyapholi came back and told her she was "pompous" since she did not open for them but only put on the light when they left. They then proceeded to assault her Ramokhele stated that he heard the police say that they should go and beat "this pompous woman" and he heard a scream from the house shortly afterwards
She said that Maope kicked her in the abdomen and she fell down. He then hit her with a gun butt all over the body She described it as "pushing the gun butt" against her and he kicked her when she was down The other three did not assault her but stood around insulting her They left her on the floor and drove away.
Both Maope and Jane denied that this assault took place. The other two police officers named did not testify The plaintiff stated that the assault was witnessed by an adult woman called 'Matsehiso, her aunt, who was present No other witness referred to this woman being present, not even Ramokhele, and even the plaintiff
did not mention this woman as having been with them when the police first entered the house. When asked if she was to be a witness the plaintiff said that she had since gone abroad.
For some unexplained reason neither this woman nor the plaintiff called for their close neighbour to help them. The plaintiff said she waited in pain until morning in order to get transport to take her for medical attention The plaintiff added that the wheels of Ramokhele's three vehicles outside the house had had all their tyres punctured with some sharp instrument Ramokhele said that not all of the tyres were punctured and that one of the vehicles was broken down and used as scrap only. He claimed that he had to replace three tyres and tubes at a total cost of M543 (exhibit 'B'). They both said that the door was completely broken and had to be replaced at a cost of M185 (exhibit 'C')
Although there is a hospital in Mohale's Hoek the plaintiff did not go there for treatment She did not say why, but instead stated that she decided that it would be fruitless to go and complain to the police at Mohale's Hoek about being assaulted by someone as senior as the officer-in-charge of C.I.D. there, as he was too senior. In fact there were two other officers on the station senior to him but she may not have known that.
Instead she had herself driven all the way to Maseru where her first stop was at the office of her Lawyer. He took or sent her to the police station where she was issued with a medical examination form (exhibit 'A')
after reporting being assaulted. She was examined by a doctor at Queen Elizabeth" II Hospital on that same day (25 November) and the report states that the injuries to her face were caused by a blunt instrument. The injuries themselves are described as "Right eye swollen and inflamed, bruised left upper jaw, swollen left elbow, bruise on nose-bridge." No injuries to any other part of the body were mentioned and the degree of disability was described as moderate.
The plaintiff claimed that she still had trouble with her eyes and they could not focus properly and her jaws were painful from bruising. She added that being kicked in the abdomen had affected her menstrual cycle However, none of these alleged after-effects was referred to in the original medical report, or even in a later medical report, as they should have been.
The incident occurred over three years ago and what appeared to be, from exhibit 'A', only moderate injuries, were, on the face of it, unlikely to have had such prolonged after-effects. If they did so, then the plaintiff ought to have produced a more recent medical report to substantiate her claim. With regard to the interruption of her menstrual cycle, again there was no medical support at all. Furthermore, she was at the time aged 43 (now 46) and there could have been other reasons for the change. In the absence of any medical evidence, one way or the other, I am not satisfied that, even if it occurred, it can be attributed to the assault
There was no evidence that the plaintiff had any visible injuries before or at the time of the police entering her house. The police witnesses denied that the
assault took place, but clearly on that same day the police in Maseru saw that she had facial injuries. That was why they issued her with a medical examination form. Moreover the doctor found some facial injuries on examining her. There was no other explanation for those injuries and I am satisfied that, on the balance of probabilities, there is sufficient evidence that she was assaulted in the early hours of 25 November 1984 by Capt. Maope as she described.
With regard to the quantum of damages I shall deal with the claim for special damages first
The first of these is a claim for M.543 for three new tyres and tubes, 600x14 size, purchased on 29 November 1984 (exh 'B'). These were said to be for Ramokhele's vehicles and were paid for by Ramokhele. The claim should therefore have been made by him and not by the plaintiff It was alleged that the plaintiff is married to Ramokhele by customary rites and that this was therefore a marriage in community of property.
However, I have looked at two books by S Poulter, Family Laws and Litigation in Basotho Society (1976) and Legal Dualism in Lesotho (1979) and one book by V Palmer. The Roman-Dutch and Sesotho Law of Delict (1970). Both writers express doubts that the Roman-Dutch conception of community of property is applicable to Sesotho customary marriages, as there are a number of important differences between the consequences of these two types of marriage which have considerable effect upon the property of the spouses.
I do not intend to go any deeper into the matter at this stage because, apart from doubting that' they were married, this claim can be decided on the much more fundamental basis of factual evidence. The tyres and tubes were not produced in Court and there was no evidence that, even if they were punctured, they were beyond repair. It may be that they were worn out or there were other or additional reasons for replacing them. But, even, if it was because they were badly punctured, there is no evidence that the damage occurred on that particular night and nothing to show who caused the damage The onus was on the plaintiff to prove that the damage was caused by those particular police officers on that occasion. She completely failed to do this. Consequently there will be no award made under this head of damages.
The second claim is for M185 for a new house door purchased on 30 November 1984 (exh 'C'). The plaintiff and Ramokhele alleged that the police broke the door so badly that it could not be repaired and had to be replaced. The police witnesses denied this and stated that the door was kicked open at the lock which burst open without damaging the door.
The defendants claimed that they were obliged to force open the door in order to effect the arrest of Ramokhele who was a suspect in a case concerning a stolen motor vehicle. They relied upon section 40 of the Criminal Procedure and Evidence Act 1981 which reads as follows
Subject to sub-section (2) any peace officer or private person who is by law
authorised or required to arrest any person known or suspected to have committed any offence, may break open for that purpose the doors and windows of, and may enter and search, any premises in which the person whose arrest is required is known or suspected to be.
Any peace-officer or private person shall not act under sub-section (1) unless he has previously failed to obtain admission after having audibly demanded entry and notified the purpose for which he seeks to enter the premises.
The police wished to arrest Ramokhele as a suspect in a car theft and W.O Jane and the others went to carry out the arrest on the orders of Capt Maope. Then, when Caat. Maope came to the scene, he was attempting to make the arrest on his own authority Car theft is a serious offence and such an arrest would normally be lawful. The police complied with the requirements of sub-section (2) by announcing themselves several times to the occupants of the house, first by W.O. Jane and later by Capt. Maope calling out their names and notifying their purpose, which was to arrest Ramokhele. Both occupants knew these policemen well. The headman also called out his name and requested them to open up for the police. The occupants had no good reason to disregard his request.
Ramokhele kept quiet and the plaintiff refused to open The police suspected, quite rightly, that Ramokhele was inside and, after giving the plaintiff several
opportunities to open up, they forced open the door. In the face of all this I am of the opinion that the plaintiff was wrong to refuse to open the door, and that she was actively attempting to shield and hide Ramokhele whom she knew was then wanted by the police. The police acted under section 40 (above) and I am satisfied that they were justified in doing so and that they acted lawfully
I do not believe the plaintiff's claim that the door was smashed to pieces but, in any event, I find that the plaintiff acted unlawfully and the police acted lawfully and did what had to be done in the circumstances. Consequently the plaintiff's claim under this head cannot succeed and I shall make no award.
This leaves only the claim for general damages for assault. The plaintiff has claimed M8,000 for the assault and M2,000 for contumelia. Such a claim is improper since general damages are unliquidated and the assessment of such damages is entirely a matter for the Court. The plaintiff should claim general damages (unspecified) and then, in Court, cite previous awards in similar cases in the hope that the Court will grant the same amount or more or less according as the seriousness of the injury and the circumstances warrant. But the plaintiff should not try to quantify the damages.
Unfortunately Mr Phafane for the plaintiff did not assist the Court by citing any awards in previous cases nor did he address the Court on the quantum as should have been done.
Without any such support the amount referred to in the summons is merely arbitrary and most probably exaggerated and so of little or no assistance to the Court.
As I have already indicated, the plaintiff did not behave in the fashion expected of a law-abiding citizen. She acted in a most provocative and uncooperative manner instead of assisting the police. This may well have been the reason why they afterwards assaulted her. Of course, it does not justify the assault at all, but it is one of the factors to be taken into account in the assessment.
I do not see any need for a separate award for contumelia because, in assault cases, it is all part of the assault and the delict cannot be separated into compartments. In the circumstances I consider that a fair and reasonable award would be a total of M800 general damages including contumelia.
Accordingly, judgment is entered in favour of the plaintiff in the sum of M800 general damages and costs in the suit.
P. A. P. J. ALLEN
9 March 1988
Mr. Phafane for plaintiff
Miss Bohloa for defendants
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