CIV/T/30/92 IN THE HIGH COURT OF LESOTHO
In the matter between:
CHIEF NARE MOLAPO PLAINTIFF
VSETLALEBATHO MOLAPO DEFENDANT
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 15th day of March, 1993.
For the Plaintiff : Mr. S. Malebanye For the
JUDGMENT Cases referred to:
(I) Matekane v Attorney-General CIV/T/465/86.
The plaintiff's claim is for damages. Judgment in
default of appearance was entered for the plaintiff and. the issue
before me is
the aspect of quantum.
The declaration reads in part as follows:
"3. On or about 16th June, 1991 at or near
Leoana-Letsoana Pela-Tsoeu in the Leribe
district Defendant wrongfully, unlawfully and
intentionally set fire to Plaintiff's two houses as a result of which
houses and some property therein were extensively
4. At the time Defendant set the fireaforesaid
Plaintiff, his wife and threeminor children were sleeping in
these twohouses respectively.
5. As a result of the aforesaid setting offire
Plaintiff feared for his life andsafety and suffered a nervous
shock whichDefendant reasonably foresaw that hisaforesaid
acts would result in.
6. As a result of Defendant's wrongful actPlaintiff
has suffered damages all in allin the sum of Thirty-Two Thousand
FourHundred and Fifty-Four Maloti (M32,454-00)calculated as
Damage to Two Houses = M13,454-00
Damages to Property therein = M 4,000-00
Nervous Shock = M15,000-00
3 TOTAL = M32,454-00
for which Defendant is liable."
The plaintiff, is a Chief, he is aged 82 years, he
testified that the defendant is his fourth son. He was apparently
some family difficulties with the defendant at the
relevant time. The latter had taken away some of his animals. The
a family meeting to discuss the matter. On the
16th June, 1991, however, about midnight, the defendant set fire to
two houses. At the time the plaintiff was sleeping in
the main house with his wife, aged 56 years. and three minor children
six to sixteen years.
There were three doors in the main house. The plaintiff
was awake at the time. When the house went on fire, "I was
he said. He was the first to get out of the house.
Then came the children and then his wife. "None of the children
he said and his wife "was nearly burnt".
He made no reference to any burns suffered by him. and as he was the
of the house, I presume he did not suffer any burns.
The plaintiff testified that others were extinguishing
the fires. He "was heartbroken": "I felt I
was about to die", he said. He testified that he
was, over a year later, "still undergoing treatment for my
but he did not stipulate the nature of such treatment or
adduce any medical evidence thereof.
The plaintiff testified that the main house was valued
at M13,454 and the other house at M8,900, that is, a total of
testified that the main house was built of concrete
blocks with a corrugated iron roof. containing five rooms. The
was a rondavel of one room, built of stones with red
bricks on top and a thatched roof.
When it was pointed out to him that he had claimed
M13,454 for both houses, he stated that he was "probably
the time, as he was "still confused": he
had obtained the figure of M13,454 from a builder who wrote the
figure on a piece
of paper, which was at home. The Court granted an
adjournment to enable the plaintiff to produce documentary evidence.
At the adjourned hearing, the plaintiff produced a
document, which is apparently a photostatic copy of the manuscript
wrote (apparently in a different handwriting)
"30-11-1989" at the top of the document. Further, the
document bears the
date-stamp (as a Chief) for "30-11-1989". The
document is entitled, "Plan of a House of the size of 10.60 x
7.40". It contains a list of building materials, all
adding up in price to a total of M22,182-00. The original, or perhaps
photocopy, was signed by one "Matli Lesoetsa".
The plaintiff tendered the document as an invoice
prepared by "the person who built house for me". The
contained no letterhead whatever. There is nothing
to indicate that Matli Lesoetsa had any degree of proficiency as a
that the Court could place any reliance on the
estimate. There is nothing to indicate that the document was ever
more than an estimate,
that is, there is nothing to indicate that the
plaintiff ever paid any of the amounts contained in the document. I
had expected to
have sight of an estimate for the future construction
of the houses damaged in the fire: instead of that the plaintiff
apparent estimate for a construction in 1989.
Furthermore, while he claimed M13,454 for two houses in his
declaration, he then produced
a document for one house, in the total
of M22,182, which amount, I observe, approximates to his oral
evidence of the value of two
houses, namely M13,454, plus M8,900.
that is, M22,354. Further again, the plaintiff testified that the
main house was constructed
blocks with a corrugated iron roof. The 1989 document
itemises "17,000 small bricks" at M5,100 and "Ceiling
planks" at M6,360. There is no mention of any concrete
blocks or corrugated iron.
There is a well-used maxim that a litigant "cannot
throw damages at the head of the Court". Damages must be proved.
plaintiff cannot claim M13,454 damages and then, without any
notice to the defendant, tender evidence, if one can call it such, of
a grossly inflated amount. The exhibit before the Court is of no
probative value. I proceed therefore solely on the basis that the
of M13,454 has raised no objection from the defendant and would seem
to be a reasonable amount for two village houses and I do
to award the plaintiff any amount beyond that figure.
When it comes to property, it will be seen that the
plaintiff's claim is in the amount of M4,000. He gave evidence of
furniture (without any invoices) totalling some M5,684.
That included items, however, valued at M1,700 some 40 years ago and
some 25 years ago. The furniture was then extremely old and
perhaps bordering on dilapidation. Doing the best I can, I would
its value at no more than one-third of cost price, that is,
When it comes to the claim for nervous shock. I agree
with Mr. Malebanye that the particular damage was clearly forseeable
defendant. While the plaintiff was understandably mainly
affected by a personal apprehension of danger, he must to some extent
also feared for the safety of his wife and children. Nonetheless
the shock must have been short lived: he was awake at the time,
he was the first to get out of the house. Neither he nor his family
suffered any burns.
The plaintiff adduced no medical evidence whatever of
any condition resulting from the fire. Despite his age. he seemed to
fit and displayed remarkable mental alertness and
control in the witness box. In brief, I consider that he greatly
his claim for damages and his evidence of any
lasting effect of the initial shock suffered. I do not consider e.g.
that the award
should be of the same quantum as that in Mateka v
Attorney-General (1), to which Mr. Malebanye refers. Doing the
best I can. I would award M2,000 under this head.
The total award under the various heads shall then be as
Damage to the two Houses : M13,454
Damage to Property Therein: M 1,895
Nervous Shock : M 2,000
TOTAL : M17,349
I accordingly give judgment to the plaintiff in the
total amount of M17,349 with costs.
at Maseru this 15th Day of March, 1993.
B.P. CULLINAN CHIEF JUSTICE
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