CIV/T/546/2004

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

LEPHAT’SOE
LEBAJOA PLAINTIFF

and

THE
COMMISSIONER OF POLICE 1^ST
DEFENDANT

ATTORNEY
GENERAL 2^ND
DEFENDANT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 31^st
May 2007

Per his amended
summons, plaintiff in this matter seeks relief from this Court for
damages as follows:-

1. 
   Payment of the
   sum of M30, 000. 00 in respect of assault, pain, shock and
   suffering;

   
   

2. 
   Payment of the
   sum of M60, 000. 00 for contumelia;

   
   

3. 
   Costs of suit;

   
   

4. 
   18.25% interest
   per annum from the date of judgment;

   
   

5. 
   Further and/or
   alternative relief.

   
   

Defendants herein
had initially denied liability and the plaintiff led evidence to
prove his case at the end of which he and P.W.2
were duly
cross-examined by Mr.
Mapetla Counsel
for the defendants. It was only after the close of the plaintiff’s
case that Mr.
Mapetla
informed this Court that in the light of the fact that there were
other matters pending before this Court which arose out of the
same
circumstances, the defence wanted to obtain further instructions with
a view to considering abandoning argument on liability
and arguing
before the Court the question of quantum only.

After hearing
submissions from both sides, the Court adjourned the matter and on
the next date of hearing, it was agreed that the
matter would be
argued only with regard to the issue of quantum.

In his
submissions, Mr.
Mahlakeng
Counsel for the plaintiff stated that damages are intended to counter
balance plaintiff’s unhappiness, to give him the ability
to
overcome the effects of his injuries or to provide psychological
satisfaction for the injustice done to him. He added that
since
plaintiff was assaulted all over the body with sticks resulting in
his suffering a lot of pain and sustaining injuries near
his spine he
suffered shock because anything could have happened to his life
during the assault.

Further, that the
said assault took place in full view of the public as a result of
which plaintiff felt humiliated and insulted
and that the Court
should consider his hurt feelings in determining whether the amount
of compensation claimed by plaintiff in
his amended declaration is a
fair one for pain, shock and suffering as well as contumelia.

Mr. Mahlakeng
made the further submission that in determining the amount of
damages, this Court should take into account the fact that plaintiff

is a public figure in that he is a musician and a role model to other
people and that his reputation has been tainted as a result
of his
having been assaulted in public thereby changing the attitude of some
people towards him.

He further added
that in making an award in monetary terms, the Court should express
its disapproval of the seriousness, brutality
and humiliating effect
of such treatment and that in so doing, must consider previous awards
in comparable case. To this end Mr.
Mahlakeng
referred the Court to a plethora of decisions including that of
Marine
and Trade Insurance Co. Ltd vs Goliath 1968 (4) SA 329.

On the side of the
defendants, Mr.
Mapetla
started his argument from the premise that this matter is one of
those that in his opinion fall within the de
minimis rule
for the reason that even the medical report filed of record only
shows plaintiff to have suffered bruises on the right calf,
that the
degree of force applied was mild, the degree of immediate disability
light with no degree of long term disability and
that there was no
danger to life.

It was Mr.
Mapetla’s
submission that plaintiff has not sufficiently proved contumelia
for the reason that he failed to call an independent witness to
testify that he knew plaintiff and took the incident in a particular

light so that an award of damages should not be granted to him on
this ground. Counsel for respondent added that even the amount

claimed was not sufficiently proved and that the amount of M2, 000.
00 would suffice herein.

In his reply, Mr.
Mahlakeng
stated that reference to the medical report would be fallacious if
the amount would be based on the degree of the injury suffered.
He
argued that bruises and/or gaping wounds cannot always be the
determinant factor or yard stick because their absence per se
is not
conclusive proof that plaintiff was not assaulted especially where
the issue of liability of the assault has been admitted.

With regard to
contumelia,
Counsel for plaintiff submitted that there was no need to call an
independent witness to testify to the assault because it was
the
evidence of plaintiff that it happened in public. He further added
that the fact of whether or nor he suffered any indignity
was not
placed in issue even during cross-examination.

I turn now to deal
with the prayers as they appear in the amended summons.

Under prayer (a)
plaintiff is seeking payment of the sum of M30, 000. 00 in respect of
pain, shock and suffering. In order to prove
his claim, he handed in
the doctor’s medical report which reveals that he suffered bruises
on the right calf. The report does
not say anything about emotional
shock but plaintiff testified that he did suffer same as a result of
the assault. This evidence
was indeed not challenged and I am of the
view that plaintiff has made out his case.

With regard to the
suggestion by counsel for defendants that this case falls within the
de
minimis
rule, it is my opinion that this cannot be so for the reason that the
rule has been said to particularly apply to acts affecting
the
dignitas
only. Even that, is not general for it is trite that every case must
be dealt with according to its own particular circumstances
and/or
merits. In
casu,
plaintiff has shown that he was assaulted and suffered injuries which
assault also impaired his dignity and reputation. The assault
has
been admitted by defendants.

It was also Mr.
Mapetla’s
submission that the injury as reflected in the report was not of a
serious nature. Indeed the physical injury per se was not
life-threatening. However, it is my view that in
casu,
the totality of the evidence i.e. the beating, kicking and forcing
plaintiff to roll down, did cause him some pain even if the
resultant
injury was not readily discernible to the naked eye in the form of
cuts and bruises safe for the ones on his calf. I
accordingly find
that all those factors considered the assault was of a serious
nature.

Under
prayer
(b) plaintiff is asking the Court to award him the amount of M60,
000. 00 for contumelia.
Under an action of this nature the interests protected are said to
be those ‘which
every man has, as a matter of natural right, in the possession of an
unimpaired person, dignity and reputation’ per
R
G Mckerron in his work; The Law of Delict 7^th
Edition p53.

Although in the
amended summons the claim for pain, shock and suffering has been
separated from that of contumelia,
it is my opinion that in making a determination on the one, this
Court can take into consideration the other. In other words,
it is
my view that the fact of one being humiliated in public can in itself
cause one pain, shock and suffering which may necessitate
some amount
of compensation. I have already shown that plaintiff’s evidence
that he suffered emotional shock was not challenged.

It was further his
unchallenged evidence that he felt humiliated especially because of
the assault having taken place in public,
around his home village
where he is well-known and the fact that he is a musician and a
married man with children. All these were
not challenged by
defendants. In the light of these factors, it is my view that the
fact of contumelia has been proved so that
the remaining issue for
determination by this Court is that of the amount of damages to be
awarded to plaintiff.

With regard to
assessment of damages, the general principle is that compensation
must be assessed so as to place plaintiff, as far
as possible, to the
position he would have been in had the wrongful act not taken place.
Thus, in the case of Minister
of Defence v Jackson 1991 (4) SA 23 at 27
it was held that the quantum of compensation must bear relation to
the extent of the loss suffered and be directly proportionate
to the
extent of the loss. This includes inter
alia,
the intensity of the injury to feelings which also objectively
include age, gender, social status, culture and lifestyle.

In addition, it
has been held that in awarding damages the Court should have some
purpose in mind including but not limited to;
counter-balancing
plaintiff’s unhappiness, providing psychological satisfaction for
the injustice done to him as well as enabling
him to overcome the
effects of his injustice. See the case of Marine
and Trade Insurance Co. Ltd v Katz 1979 (4) SA 961 (A) at 983.

In casu,
plaintiff has shown that he is family man and a well-known artist in
the Sesotho traditional music, both in Lesotho and beyond
its
borders. It was his testimony that the assault was carried out in
full view of the public and was continued upon their arrival
at the
police station and that as a result he felt humiliated and degraded.

Although the
injuries he suffered were not considerable or life threatening, I am
of the opinion that when all the above factors
are taken into
consideration together with the fact sustaining an injury on the
ankle and on the back I have no doubt in my mind
that he should be
awarded some compensation.

Further, in
determining quantum for non-patrimonial loss, Courts have been warned
that principles of fairness and conservatism should
come into play.
In other words, whilst a plaintiff should be compelled to pay some
amount as compensation to the defendant, the
said amount should not
be based on or influenced by the law’s sympathy with an injured
plaintiff.

Other factors
which should be considered include the general economic conditions in
the country and exercise of care so as not to
place undue burden on a
defendant at the expense of the plaintiff. This has been stated in
the work of P
J Visser and J M Potgieter,
Law
of Damages p394.

Indeed in cases of
this nature the trial Judge is burdened with the insurmountable task
of determining what would be a fair amount
to both parties when all
things are considered. Thus, in the case of Sandler
v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199 Watermeyer
JA stated and I respectfully agree with him that:-

“In the
sphere of non-pecuniary loss, the absence of a common denominator
between pain and money makes quantification difficult.
The Court is
required to equate incommensurables, for ‘there are no scales by
which pain and suffering can be measured, and
there is no
relationship between pain and money which makes it possible to
express the one in terms of the other with any approach
to
certainty’”.

It is therefore my
considered opinion that in determining what would be an appropriate
amount in a given case the circumstances
and merits can be used as
some of the guidelines. In
casu,
the fact that the assault took place at the hands of police officers
is in my view an aggravating factor for the reason that
it differs
from a scenario where two civilians are engaged in a public spat and
apart from say, the difference in their physical
make up, none of
them has the advantage over the other of operating under the
authority of the law, thus amplifying the humiliation.
This is more
so when I did not even hear any possible reasonable explanation from
defendants behind the assault.

Although it was
argued on behalf of the defendants that the police officers in
question were just trying to poke fun at the plaintiff
without there
being any serious assault, I cannot accept this argument. This is
because police officers are expected to behave
in a professional
manner and not abuse their powers by ill-treating and or assaulting
people only to call it poking fun especially
when the recipients of
such treatment are definitely not having fun at all as was the case
herein. In fact it cannot be disputed
that police officers are there
to inter
alia,
see to it that all of us are protected and no-one receives that kind
of treatment in the hands of another.

It is with the
above factors in mind together with the fact that the assault was
both unnecessary and unprovoked, the second assault
took place at the
Matelile Police Station in the presence of senior police officers,
though the injury suffered was not permanent
and/or life threatening,
it was serious enough to warrant compensation and the resultant
humiliation was considerable that I find
that plaintiff has made out
his case for the relief sought.

I accordingly
grant him an order as follows:-

1. 
   M15, 000. 00 for
   pain, shock and suffering

   
   

2. 
   M25, 000. 00 for
   contumelia

   
   

c) 18.25%
interest per annum from the date of judgment

d) Costs of suit.

N.
MAJARA

JUDGE

For
plaintiff : Mr. Mahlakeng

For
defendants : Mr. Mapetla