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.
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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:-
Payment of the sum of M95,528.00;
Interest thereon at the rate of 18.25% from the date of summons to date of payment;
Costs of suit;
Further and/or alternative relief. .
The declaration splits the amount of damages as follows:-
M25,000.00 for unlawful assault;
M25,000.00 for pain and suffering;
M45,000.00 for contumelia;
M475.00 for spectacles;
M51.00 for medical expenses.
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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