CIV/T/231/95

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

RABOHLALE
MATSOSO PLAINTIFF

And

THABANG
MOSUHLI 1st DEFENDANT

COMMISSIONER
OF POLICE 2nd DEFENDANT

ATTORNEY
GENERAL 3rd DEFENDANT

JUDGMENT

Delivered
by the Honourable Mr Justice T. Nomngcongo on the 25th of April, 2007

The
plaintiff herein claims against the defendants various sums of money
as damages resulting from a shooting incident whereby the
first
defendant shot him in the course and scope of his employment with the
second defendant. The defendants accept liability but
dispute certain
aspects of the damages. They have accepted liability for medical
treatment in the sum of M17,375.67. There appeared
to be some
disagreement on the exact figure for pain and suffering counsel for
the plaintiff

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contending
for one figure and counsel for the defendants another. Ultimately it
was left to me to decide. In my view the sum claimed
by the plaintiff
is not unreasonable in view of the time he spent in hospitals and
what appears to be treatment that followed as
evidenced by various
receipts in rather substantial amounts from pharmacies here and in
South Africa. I would therefore award the
plaintiff the R20,000
claimed. There was also agreement on disfigurement in the sum of
R5,000 as well as contumelia in thesumofM10,000.00.

There was
however no agreement on the sums claimed for loss of income;
emotional shock and future medical attention.

LOSS OF
INCOME

It has
been said that the object of awarding damages is to place the
plaintiff, as far as money payment can, in the position in
which he
would have been had the delict not been committed. (The Law of Delict
by Bobery VoLl p.478). The plaintiff says he ran
a business from
which he used to make

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R180 or
R120 a day when business was not good and R200 or R250 a day when
business was good. He is an illiterate man who did not
keep any books
and cannot produce proper business records to support his claims in
this regard. The defendants in cross-examination
latch on this
deficiency and say that because of it there is no proof of what the
plaintiff asserts. Now what a plaintiff asserts
unless otherwise
inadmissible is evidence and cannot be discarded merely because it is
not supported by some record. It is accepted
in this case that the
plaintiff ran a business and presumably it made money.

Having
said that the plaintiff has presented us with two scenarios at his
business and a range of figures to be calculated, according
to his
declaration, over a period of three months during which he says he
was unable to work. The first scenario is when business
was not good
and he made as I understand him between Rl20 and Rl 80 on a bad day
and when business was good when made between R200
and R250. The
difficulty with this is that we have no idea of the frequency of
either

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scenario
in order to determine the plaintiffs loss. Again as it would seem
that the business was still running there is no evidence
at all as to
how much the loss occasioned by the absence of the plaintiff from his
business over the period of three months was
mitigated or even
avoided at all.

Now in my
view if a plaintiff says, but for the actions of the defendant I was
in position A, he must also tell us that now I am
in position B and I
want to be reverted position A. That means he must prove B in order
the court to assess the difference. It
is not sufficient to tell us
the previous position only. That way the plaintiff has proved nothing
by way of loss. That is what
the plaintiff has done in this case. He
has therefore failed to prove his loss

EMOTIONAL
SHOCK

The
plaintiff also says he has suffered emotional shock for which he
claims Rl0,000. Emotional shock is usually compensated where
it is
sustained through the medium of the eye or ear rather than through
direct physical impact and it is in principle compensable
see (Bobeng
supra at p. 174). In

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this case
the plaintiff claims that the physical impact of the shooting
resulted in emotional shock which manifests itself by automatic

incontinence upon sight of policemen; the sight of policemen makes
him soil himself. When plaintiff gave evidence on this aspect
he
requested that his wife should not be present because she was not
aware of this condition of his. I find it incredible that
someone

could
live with such a condition without seeking medical help and that
throughout one as intimate as his wife would not know of
it. Judging
by the number of policemen the plaintiff must have met on his way
here and their numbers in this court building we
all must have had
first hand evidence of this condition. We did not. I am not saying it
is not true but it is most improbable and
proof in this case is on a
balance of probabilities. They do not favour plaintiff. I do not
propose to discuss the matter further.

FUTURE
MEDICAL ATTENTION

The
plaintiff also claims for future medical attention. It has been over
12 years that this incident has

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happened
and summons filed. He would by now have accumulated a large bill in
medical expenses. He gave evidence yesterday but was
unable to
produce a single bill for medical expenses. He simply contends that
he fills pain in winter. Even if that were true,
if it is so severe
as for plaintiff to claim the substantial damages that he does there
would be proof by now of medical......by
now. There is none.

Judgment
is therefore entered only in the original agreement between the
parties with the qualification made by myself regarding
the damages
under the heading of pain and suffering, that is to say it is entered
for :

1. Ml7375.67
   : Medical treatment and corrective surgery
   

   
   

MR20,000 : Pain and suffering

R5,000 : Disfurgement

Rl 0,000 : Contumelia

Total =
M52,375.67

2. Costs
   of suit
   

   
   

T.NOMNGCONGO

JUDGE

For
Plaintiff: Mr Mots'oari

For
Defendant: Mr Putsoane

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