IN THE HIGH COURT OF LESOTHO In the
PITSANYANA LEWELA PLAINTIFF
NKOPANE MOHLOMI 1ST DEFENDANT
RATLOPO MACHABE 2ND DEFENDANT
NKETSI MOHLOMI 3RD DEFENDANT
NONYANA NTSOOA 4TH DEFENDANT
PHELAPHE KHESEME 5TH DEFENDANT
MOHLOMI MOHLOMI 6TH DEFENDANT
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 31st day of March, 1992.
For the Plaintiff ; Mr. H. Nathane For the
Defendants : No appearance
This is an action for wrongful assault. The six
defendants did not appear to the summons, and judgment in default of
duly entered for the plaintiff. The issue before the
Court is therefore the quantum of damages. On the 26th of February,
1992 I assessed
damages, reserving my reasons, which now follow.
The plaintiff's declaration reads in part as follows:
"On or about 24th June, 1988 at or near Mphaki in the
Quthing district Defendants each, the other or all of
them wrongfully, unlawfully and intentionally assaulted
Plaintiff with sjamboks, knives and sticks over the body as a result
Plaintiff sustained certain injuries."
The plaintiff gave evidence. He testified that on the
24th of June, 1988 he was passing by the defendants, en route to
where his horse
was located. It so happened that he had with him a
'bewys', as proof of ownership of his horse. The defendants came to
that he had stolen the horse. They tied him up and took
him to the Chief. En route to the Chief, however, they struck him.
were tied behind his back and he was unable to defend
himself. The 5th defendant hit him with a stick. The 1st, 2nd, 3rd,
6th defendants hit him with a sjambok. The 4th defendant
tried to stab him with a knife. He parried the blow however and was
on the elbow as a result.
The defendants found M25 in his possession. They took it
from him and then went into a bar drinking. They took him into the
where he remained, still tied up. He testified that the six
defendants drank all night in the bar, and eventually took him to the
Chief at 7.30 a.m. the following morning. All along the defendants
accused him of being a thief, stating that he had stolen not alone
the horse, but also an ox which he had bought. He testified that many
people had witnessed
the whole transaction, possibly more than a hundred
Thus tied, he was taken to the Chief's place. The Chief
said that the plaintiff should be taken to the police. When he was
the police, the police released him, however, and gave him
an assault form to take to the doctor. The police form LMP 47
the allegation apparently conveyed by the plaintiff to the
police, that he had been assaulted on the "head, nose, all over
body" with "stick and sjambok".
The plaintiff went to see the doctor and was treated as
an out-patient. He subsequently laid a charge against the defendants.
were tried at the Local Court and the 1st defendant pleaded
guilty to the charge and was duly convicted. The plaintiff testified
that the 1st defendant had indicated to the Local Court that the
other five were not guilty and they had been duly discharged. The
plaintiff subsequently visited the doctor from June to July, 1988 and
again in August of that year.
When asked by the Court why it was that he claimed that
six defendants had assaulted him, yet only one of them had been
in the Local Court, he answered that "they (the other
defendants) said they would pay the money to him and he (the first
should claim guilt". The plaintiff is aged 45 years
and I imagine that it would have taken more than one person to have
him and taken him to the Chief and to the police. In any
event none of the defendants entered an
appearance to the summons.
Quite clearly, however, the plaintiff grossly
exaggerated the nature of the assault upon him. The assault form was
dated by the police
and the medical officer on the 24th of June 1988,
(indicating that the assault took place on the 23rd and not the 24th
of June, 1988).
More importantly the only injury appearing on the
form certified by the doctor reads as follows:
"Scratch at R - elbow"
Such injury was described on the form as involving only
temporary disabiliy and being only minor in nature, the plaintiff
as an out-patient. I cannot imagine why the plaintiff
whould have to go a second time to the hospital in respect of a
his elbow. The plaintiff tendered a receipt for treatment
received as an out-patient, which is dated the 25th of June in the
of Ml, presumably referring to the treatment received on the
24th of June. He tendered two other receipts in the amount of 50
each, for drugs supplied on the 29th of July, 1988. Again, he
tendered another receipt for 30 lisente in respect of treatment
at the out-patient department on the 9th of December, 1988,
despite his evidence that "I went to see the doctor from June to
July 1988 and came back in August". These discrepancies were
pointed out to the plaintiff by the Court but he nonetheless
that "I had injuries all over the body". He
insisted that he was "admitted
to hospital". When asked whether that was as an
in-patient, he answered, "Yes". It was pointed out to him
form indicated that he was treated as an out-patient, and he
answered "I was not put in bed". When it was pointed out to
him that the receipt indicated that he had visited the hospital in
December, he answered "My hands were swollen. I was going
doctor because of the wounds. They hit me on the hands. 1 was tied up
over 12 hours".
There is also the plaintiff's unlikely evidence that
with his hands tied behind his back, he was able to parry the blow
the 4th defendant when trying to stab him with a knife. He
claimed as a result that he got "slabbed on the elbow" but,
as previously indicated, the form merely discloses a scratch on the
I found the plaintiff to be a most unimpressive witness.
Clearly his evidence as to the extent of the assault cannot possibly
Indeed, it is difficult to imagine how his hands could be
tied behind his back for twelve hours without some tell-tale bruises
on his wrists when examined by the doctor the following
day. Bis evidence is probably true on the point, however.
The plaintiff has not filed any claim for unlawful
arrest or imprisonment. Nonetheless the confinement, with his hands
tied, in the
bar overnight, constituted a continuous assault.
I find that the plaintiff was assaulted to the extent
that his hands were thus tied and that he was kept in fear for a
period of some
twelve hours. I find also that he was assaulted to the
extent that one of the defendants struck a blow at him with a stick
thus causing the minor injury on his elbow. As to
contumelia there is no doubt that the plaintiff suffered injury in
I would prefer to make a global award to cover pain and
suffering, contumelia and the medical expenses in June 1988, Taking
above factors into account, and doing the best I can in the
matter, 1 assess the plaintiff's damages in the amount of Ml,000.
I give judgment to the plaintiff in the amount of Ml,000
against the defendants jointly and severally, with costs.
Delivered at Maseru this 31st day of March, 1992.
B.P. CULLINAN CHIEF JUSTICE
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