HIGH COURT OF LESOTHO
MPHASA PAKISO PLAINTIFF
COMMISSIONER OF POLICE 1st DEFENDANT
FORCE 2nd DEFENDANT
ATTORNEY GENERAL 3rd DEFENDANT
by the Honourable Madam Justice N. Majara on the 24th May 2005
in this matter sued defendants before this Court for damages (as
amended) which were tabulated as follows:-
000-00 (Fifty Thousand Maloti) being damages for assault.
200-00 (Two Thousand Two Hundred Maloti) value of a cell phone.
000-00 (Fifteen Thousand Maloti) pain shock and suffering.
thereon at the rate of 18% per annum from issue of summons.
800-00 (One Thousand Eight Hundred Maloti).
and/or alternative relief.
9th May 2006 at the commencement of the matter Mr Teele, Counsel for
plaintiff applied for and the Court granted him certain
the summons after which he called two witnesses to the stand. At the
close of the plaintiff's case, Mr Mapetla, Counsel
also called two witnesses to the stand. After the defence closed
their case the matter was postponed to the 16th
May 2006 for Counsel
to prepare their addresses.
16th May 2006, both Mr Teele and Mr Mapetla
the Court that following discussions between the two sides they had
agreed that liability had been proved and had as a
result reached a
settlement as follows:
in the sum of M20 000-00 (Twenty Thousand Maloti) to plaintiff in
respect of all the damages claimed.
in the sum of M2 200-00 (Two Thousand Two Hundred Maloti) for
plaintiff's cell phone.
Counsel further informed the Court that they had not agreed on the
issue of Ml 800-00 (One Thousand Eight
Maloti) which plaintiff claimed he lost during the altercation with
police officers in the employ of 1st defendant, two
of whom testified
for the defence before this Court as well as one member of the
Lesotho Defence Force in the employ of 2nd defendant
which defendants felt had not been proved in the trial and left the
determination thereof in the hands of the Court.
of the fact that both sides have since agreed on liability with
respect to all but one of the issues and in the interests
of time, I
am not going to give an outline of the facts that brought about this
case but will simply refer to them in my determination
of the only
contested issue as already shown above viz, the sum of Ml 800-00 (One
Thousand Eight Hundred Maloti).
it to say that although initially defendants denied that they had
assaulted plaintiff on the date of the incident but merely
him, as both Counsel correctly agreed, plaintiff did sufficiently
prove the assault and liability on the part of the
Further, it is common cause that the assault on the plaintiff by the
said police officers and soldier respectively,
took place whilst they
were acting within the course and scope of their duties.
addition, the evidence before the Court established that defendants
did actually assault plaintiff, resulting in him sustaining
injuries upon which he fled and sought refuge at a nearby shop and
was subsequently being conveyed to hospital for medical
medical reports which plaintiff handed in as exhibits also made
nugatory the suggestion by defendants that plaintiff suffered
injuries as a result of having fallen down as he was running from the
police officers and soldier. It is my opinion that the severity
the injuries cannot support the suggestion that plaintiff simply fell
down on his own as he took flight and was not assaulted.
reports showed inter alia, a laceration and swelling of the right
corner of the right eye necessitating suturing, a laceration
the right ear, tenderness and fractured ribs etc.
already stated above, defendants do not deny that at the time of the
incident they found plaintiffs cell phone and took it in
possession and that to date, they have never returned it to him.
also plaintiff's claim that defendants should be held liable for the
loss of his money in the sum of Ml 800-00 (One Thousand
Maloti) which he alleged he had in his wallet and lost it during the
said assault. Defendants
either having seen and/or taken the said money. It is therefore
plaintiffs word against theirs.
questions of assault and loss and/or taking of plaintiff's cell phone
have been established in casu, the next, question
for this Court to
consider is whether the evidence led established that plaintiff did
have the said money in his possession. In
his evidence plaintiff told
the court that he had just received the money from one Tuoane Moteete
with whom they are members of
a stokvel. He testified further that of
the total amount he had received, he had used about M700-00 (Seven
Hundered Maloti) and
was left with the Ml 800-00. He added that the
said money got lost at the time he was being assaulted.
evidence on the issue of his having been in possession of the money
at the time of the incident was not challenged during
cross-examination. It was only put to him that defendants did not
take the money. Over and above that, the Court found the two
witnesses' evidence full of holes. This is because initially in their
plea, they averred that plaintiff was 'merely manhandled
process of stopping him from assaulting D. W. 1 at whom he had also
hurled insults and abuse.' However, during the trial
the evidence was
changed and the defendants' witnesses told the Court that they did
not even touch plaintiff but that he sustained
his injuries at the
fell down when he took flight upon seeing them approaching. These are
clearly two contradictory statements which led this
Court to the
conclusion that the witnesses are simply not telling this Court the
addition, under rigorous cross-examination by Counsel for plaintiff,
both witnesses proved themselves to be highly incredible
Court got the impression that they had the clear intention to mislead
it as read from both from their improbable and I
might add mostly
ridiculous answers as well as their poor demeanour in the witness
Court takes all these factors into account it comes to the finding
that plaintiffs evidence is the more probable and should
on a balance of probabilities. See the Court of Appeal decision in
the case of Moeketsi Moru v Raselo and Attorney
LLR/LB 196 at pl99. It is also my humble opinion that under such
circumstances it is not unreasonable to impute
liability for the loss
of the money on the defendants. The reason is simply that even if it
might not have been the said police
officers and soldier who took the
wallet containing the money but someone else, the fact that it got
lost during and as a result
of their unlawful assault of plaintiff
justifies that they be held liable for its replacement.
because had the assault never taken place, plaintiff would not have
lost the said money which he was not successfully challenged
been in possession of and lost at the time of the incident.
Consequently, it is only fair that the persons responsible
unlawful incident resulting in its loss should be made to pay it.
find it apposite to mention at this stage that plaintiff also
testified that he reported the said assault to the police at
on the same day whereby he was issued a medical form as is standard
practice in cases of assault. It is however disheartening
that to date, all the culprits have never been brought to book. This
is a very worrying factor especially when one takes
into account the
trite principle that no-one is above the law which in turn guarantees
that every citizen of this country be redressed
by inter alia,
unlawful actions committed against them being brought before the
Courts of law and perpetrators thereof being punished.
doubly unfortunate that some members of the law enforcement agencies
to whom we should all turn to when confronted with incidents
nature should be the ones abusing their powers by carrying out such
barbaric acts on others, especially by acting in concert
defenceless individual. Such acts fly in the face of the very noble
Lesotho Police Service motto "a police officer,
a helper a
is true that these acts are carried out by a fraction of the
officers, it is not a comforting thought that no action is
against them either by their colleagues and/or their superiors. What
kind of message is being sent out to the public? Is
it that as it
happens in some jurisdictions they should resort to self-help and
'deal' with their assailants as they see fit? Surely
that would be
most unfortunate for it would promote a culture of impunity. It
therefore ought to be discouraged at all costs. It
directive of this Court that their superiors and others who are
charged with that responsibility will make sure that
all the culprits
who assaulted plaintiff in casu are charged for their unlawful and
It is for
the above reasons that judgment is entered in favour of plaintiff in
the following terms:-
in the amount of M20 000-00 (Twenty Thousand Maloti).
in the amount of M2 200-00 (Two Thousand Two Hundred Maloti) value
of cell phone.
in the amount of Ml 800-00 (One Thousand Eight Hundred Maloti.
plaintiff : Mr Teele
defendants : Mr Mapetla
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