CIV/T/359/1997

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:-

MOTLATSI
THABANE PLAINTIFF

AND

KOATSA
KOATSA 1st DEFENDANT

NATIONAL
UNIVERSITY OF LESOTHO 2nd DEFENDANT

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo On the 7th February, 2008

As usual
in this court, this is one of the oldest and longest cases having
started on 26 August, 1999 to 30 October, 2007 running
into 235 pages
excluding admissions.

1

Before
Dw2 was cross-examined:- Mr. Phafane has decided to close the defence
case literally admitting plaintiffs evidence save quantum
of damages.

It will
be observed that plaintiff did, nevertheless, issue summons against
defendants claiming:-

1. Payment
   of the sum of M95,528.00;

   
   

2. Interest
   thereon at the rate of 18.25% from the date of summons to date of
   payment;

   
   

3. Costs
   of suit;

   
   

4. Further
   and/or alternative relief. .

   
   

The
declaration splits the amount of damages as follows:-

1. M25,000.00
   for unlawful assault;

   
   

2. M25,000.00
   for pain and suffering;

   
   

3. M45,000.00
   for contumelia;

   
   

4. M475.00
   for spectacles;

   
   

5. M51.00
   for medical expenses.

   
   

2

Pw 1, Dr.
Thabane's evidence sworn was that he is Senior Lecturer at the
National University of Lesotho in the Department of History
and he is
Dr. Motlatsi Thabane in history and contemporary history. The witness
has testified first defendant is employed by the
second defendant the
National University of Lesotho. It was admitted regarding events
affecting Dr. Thabane the first defendant
was acting in course of
duty. The witness has testified he became lecturer of NUL in 1982
though he started university work in
1982 in a different capacity.

The
witness has testified at the time of the assault complained of he was
head of the department and member of the University Council.
The
witness has testified he knows first defendant Koatsa and that the
witness is 42 years old married with a 12 year old child.
He has
known defendant from the time when he was student at the University
as a Security Officer of the university and in 1978
first defendant
was already Security Officer and he knows the witness very well
including the fact that the witness is a university
lecturer.

3

He says
on the day in question he was carrying a printer for repairs and at
the University West gate he found a security guard called
Masasa and
reported the printer which he was taking for repairs and Masasa
allowed the witness to proceed. When, however, fighting
took place he
was returning the printer to the university. He says he returned at 9
a.m. At the gate one of the security guards
came up to him saying he
should register the printer and the witness indicated he was
returning the printer to the university;
after an explanation the
guard allowed him passage. Koatsa (first defendant) who was standing
nearby came to the witness saying
he was not satisfied ordering the
witness to go and register the machine and the witness explained to
him his colleague had given
him free passage operating by the same
rules. The witness has testified in being told to register the
printer no regulation was
mentioned. The witness has testified he
knew no rule in terms of which in going into the university property
was to be registered.
The witness says first defendant insisted he
register and first defendant came to the witness holding the witness
tight by his
hands like vice and the witness pleaded

4

with
first defendant who knew the witness very well and who he was. He
says his pleading that he had a Senate meeting and would
return later
went unnoticed. He says he tried to free himself from first
defendant's grip adding first defendant was free to report
the
witness to the authorities.

One
Nkoale a colleague of first defendant had come saying the witness was
to register the machine. The witness has testified Nkoale
was not
assisting him at all. The witness says he was just 50 meters walk
from them when Nkoale said to first defendant let's fetch
him or
let's go for him and the two of them had come belligerently towards
him. The witness has testified at 9.00 in the morning
is time when
students are shifting from classes and there were a lot of them
including university workers cleaning and doing other
chores. First
defendant had gripped him by the neck with the same grip he described
earlier and Nkoale held him by the hands and
the printer nearby fell.
Held as he was he was dragged for about 30 meters to the cubicle at
the gate and first defendant decided
to assault him before getting to
the cubicle and he was

5

dragged
for another 10 meters into the cubicle or building and getting in
first defendant started assaulting him. He says first
defendant
punched him while Nkoale was holding him. He says the punching was on
his face. He says while he was being dragged first
defendant insulted
him saying, your mother's vagina. He says by the end of it he had a
swollen eye and his glasses were broken.
He says it was only when the
chief of security came that first defendant stopped assaulting him.
The witness has testified disciplinary
action was contrived by taking
it to an ad hoc committee away from the university disciplinary
committee to find out what happened
and he declined to appear before
the committee which was not properly constituted and he says to date
the university had done nothing.
The witness says a day following the
assault he was to go to Zimbabwe and he went there with a black eye
and bought glasses on
the way. He says not wearing glasses he was
incapacitated in his work and he suffered headaches and he attended
the conference
with scars and bruises. After the assault and while it
was fresh, plaintiff consulted a doctor at St. Joseph's Hospital at
Roma
on 1st August, 1987 the same

6

day he
was assaulted and medical report shows plaintiff to have sustained a
swollen eye and laceration of upper lips and tenderness
of the right
scapular region. Cause of injury is a fist.

Degree of
force is said to have been considerable but otherwise injury to life,
degree of immediate disability, degree of long term
disability are
shown as none the patient having been treated as an out-patient.
Significantly, the medical form is a police form.

In course
of Pwl's evidence, Campus University Standing Regulations otherwise
known as National University of Lesotho Management
Board Standing
Regulations were made available to the Court said to apply also to
security personnel and Pwl has testified there
are no provisions in
the regulations providing that the security personnel at the gate
should register items that are brought on
campus by lecturers (see
pp.50/51 of printed Record of Proceedings). Pwl referred to the
Regulations has testified at p.51 of the
proceedings above

7

that page
3 Section 4 deals with private vehicles in terms of which security
should register and check incoming and out­going
vehicles for
purposes of security so that, effectively, save for incoming and
out-going vehicles no other items need be registered
by commuters
entering university gates.

This
court did check the Regulations handed in as Exhibit "3"
and finds Section 1 (e) reads:-

"A copy of Standing Regulations will be found in each residence,
each Warden's Quarters, Enquiry Office, Library, each Faculty
Office,
Security Officer, Maintenance Office, SRC Office, Institutes,
Chaplains, Bursar's Office, Registrar's Office and Contractor's

Office-----"

While (f)
reads:-

Deans or Heads of Departments, Directors of Works, Domestic Bursar,
Contractors and Householders

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shall ensure that their staff and employees are aware of the
provisions of Standing Regulations.

Accordingly,
this court is satisfied that the first defendant knows and
understands these regulations which bind him. Having thoroughly
read
the regulations, I have found as a fact that university gates and
structures within the university are not out of bounds and
that
Section 4 of the Regulations requires "Security should register
and check all incoming and outgoing vehicles for purpose
of
security."

Section 9
(d) (ii) and (iv) is the closest to this inquiry in that (ii) forbids
employees leaving the campus area in possession
of university
property without authority and (iv) is to the effect employees found
with unauthorized university property are subject
to disciplinary
procedure.

Indeed
Section 10 (e) (ii) is to the effect any theft or attempted theft is
to be reported to the security officer.

9

As I
understand university regulations, the security staff oversees
university property ensuring it is not misappropriated and where

anybody is found with unauthorized property this is to be reported
for appropriate action. Nowhere, even where there is suspicion
of
theft may a suspect be manhandled as happened to the plaintiff. If
the security staff suspected plaintiff what they should have
done is
to report him and I agree with the plaintiff that given his
circumstances he should have been placed before university

authorities instead of forcing him to register the printer he was
carrying failing which to have assaulted the plaintiff. This
court is
of the strong view much as first defendant was obliged to take care
of university property, leaving or going into the
campus, in
requiring plaintiff to register the printer first defendant acted
outside his mandate. Moreover, in assaulting plaintiff
as he did
first defendant acted recklessly.

It is not
so much that as against the first defendant and Dwl, this court has
believed more the plaintiff but that, considering
first defendant
threw in the towel preferring not to

10

challenge
the case against him but quantum of damages, the court cannot but go
by plaintiffs version of events. The plaintiff has
testified in
support of his claim and I am satisfied with his testimony what
remains to be decided being whether the plaintiff
is worth the
amounts claimed.

In so far
as 9 (1) (e) of the declaration is concerned, medical expenses have
been proved. Regarding 9 (1) (d) the spectacles, although
there is no
proof of the amount paid, it is not contested that plaintiff paid the
amount claimed and would grand judgment in respect
of these.

Contumelia
9 (1) (c) of the declaration has been described as an insult or
injured feelings. T.B. Smith in his A Short Commentary
on the Law of
Scotland page 657 calls contumelia an "affront". The
dictionary meaning of which is to insult openly or
defiantly and it
may be observed first defendant did deliberately insult and humiliate
the plaintiff. Indeed according to T.B.
Smith above at page 725,
because of the element of insult, solatium is given for affront to
the

11

feelings
of the person (plaintiff) even where the slander was published to no
one else and where published there may be liability
for damage to
reputation. Undoubtedly the statement was per se insulting and this
court has computed damages from the point of
view that generally the
circumstances were aggravating there having been no mitigating
circumstances whatsoever.

According
to Prof. Smith above (p.727), it is one thing to injure one's
reputation and another to injure his feelings; the learned
Prof, has
gone on to record that wherever the Roman tradition exists, on the
continent, in Scotland, South Africa and I may add
Lesotho, injured
feelings are actionable wrongs. This court does not have to call the
insult attributed to first defendant by another
name for the insult
reveals the decadent, gruff and grumpy morals of society against
which heavy penalties have to be imposed on
such deprave and
perverted individuals after all in this instant case the insult was
published to the plaintiff whom the court
has believed. Another
reason calling for heavy penalty is to prevent breach

12

of the
peace considering it is insults like these in Sesotho society that,
by reason of their being the height of provocation blood
has been
shed.

Accordingly,
in so far as prayer 9 (1) (c) of the summons claiming contumelia is
concerned, the plaintiff succeeds.

Regarding
9 (1) (b) of the summons being pain and suffering, Exhibit "A"
the medical certificate shows that in being assaulted
force inflicted
was considerable meaning, according to the Oxford dictionary much,
not small. In Radebe v Hough, 1949 (1) SA 380
(A) in an action for
damages for assault facts were plaintiff with others attacked
defendant and another by throwing stones at
them. After the
aggressors had run away into a room, the defendant had fetched a
rifle firing into a room with a bullet lodging
itself on plaintiffs
penis. The court found defendant was not acting in self-defence (much
as the first defendant was not acting
in self-defence) and awarded
damages for pain and suffering in the amount of £16 and in
awarding the amount the court took

13

into
account the fact that plaintiff had first attacked defendant (at no
stage did the plaintiff attack the first defendant) and
the court had
found the standing of the person injured was relevant in assessing
compensation for pain and suffering. When the
matter came on appeal,
the Appellate Division held the trial court had misdirected itself in
that plaintiffs standing was irrelevant
the sole basis of the award
being the extent of pain actually suffered value of money to the
plaintiff not worthy of being taken
into account. The court had
increased the award to £200 remarking, in course of its
judgment, that "it is the physical
and mental make-up of the
person injured which must be considered in assessing his pain and
suffering" for "the make-up
cannot be determined by
reference to his social or natural or financial status". The
court per Hoexter AJA had concluded it
is entitled and required to
make its own assessment of the extent of the appellant's pain and
suffering and to make an award which
it considers fair in all the
circumstances of the case. This court is aware of the fact that
plaintiff had a swollen eye and laceration
of the upper lip as well
as tenderness of the scapular. Considering an eye is a

14

sensitive
organ as is the lip, the pain taken together must have been
considerable recalling the force applied was also considerable.

Mr.
Phafane for the defendant has referred this court to several cases of
the High Court as precedents in quantum of damages and
in course of
the submissions this court made it clear it could not follow the
judgments in that given the circumstances of this
case and person of
the plaintiff, the cases were distinguishable quite apart from the
reasoning in Radebe v Hough above in terms
of which the award is
dependent solely on pain suffered. Besides, in assessing damages the
court's discretion cannot be restricted
or by any means fettered. In
deciding cases to which Mr. Phafane referred, these courts were
applying own discretion given circumstances
of each particular case,
a discretion which cannot be denied this court. Besides, in some of
the cases referred to, the court awarding
minirnal damages was of the
view damages were inflated while in another, although the court found
agreeing with a judgment by Lehohla
J

15

deprecating
police brutality, exercising his discretion, the judge awarded
minimal damages. Exercising my discretion, prayer 9 (1)
(b) is
granted as prayed.

Regarding
prayer 9 (1) (a) unlawful assault, I do not see how the assault by
first defendant on plaintiff could have been anything
but unlawful
considering the first defendant did not pursue his defence throwing
in the towel midstream. Even if it may be said
he did not throw in
the towel, I reject any defence he may have for in assaulting the
plaintiff, first defendant was attempting
to force the plaintiff
against his will to register the printer. I am of the view plaintiff
was entitled in law to refuse to register
the printer or part with it
in that no law obliged him to do so.

Consequently,
judgment is also entered for the plaintiff in so far as prayer 9 (1)
(a) is concerned the result being that judgment
is entered for the
plaintiff in the sum of M95,528.00

16

with
costs jointly and severally the one paying and the other to be
absolved.

G.N.MOFOLO

JUDGE

For the
Plaintiff : Mr. Mahlakeng

For the
Defendants : Mr. Phafane

17