Plaintiff has lodged a claim against the defendants for damages in the total amount of M105,000.00 under five heads.
(a) Assault
(b) Pain and Suffering
(c) Contumelia
(d) Unlawful Arrest
(e) Unlawful Detention
Plaintiff is a Mosotho male adult of Mashai in the Thaba-Tseka district. It is not in dispute that plaintiff was arrested by police in June 2005 and detained at Thaba-Tseka station where he was released after 5 days.
Plaintiff took the witness stand together with his wife, Manthomeng Matete. The defence called in evidence two police officers from Mabote Police station. The defence was not loothe to mention that they had intended to bring in two more witnesses, but that after repeated attempts to secure their attendance, the defence had to close its case. One such witness being the 1st defendant in this case.
The defence has however conceded that they managed to bring evidence with regard to assault and arrest but have not answered to the question of detention. So that the claim for unlawful detention remained unrebutted as no evidence was advanced in that regard.
Plaintiff in giving evidence told the Court that he was assaulted by members of the Mabote Police station at his home in Thaba Tseka Ha Seametse on the morning of 17th June, 2005. Plaintiff testified that he was seated outside his homestead when two policemen arrived asking him who he was and he told them.
He further showed that they then told him they have got him. With branches from a tree they started assaulting him and they drove him away to a vehicle that had parked behind his house. He said the two never introduced themselves to him neither did they explain the purpose of their visit.
Plaintiff said when they got to the vehicle he realized that there were three other police officers and amongst them he identified the first defendant who is his co-villager. They had asked him to roll on the ground and when he told them he could not they all started beating him with the branches and kicking him in the process till he collapsed.
He said as the branches they were using broke they would go for the fresh ones and continued beating him up.
Plaintiff had said when the two police officers arrived at his place his dogs started barking at them but he rose from where he was seated and chased them away.
Plaintiff said when he came to he found his hands fastened to the back with a rope. He said as he was putting on a light blanket, first defendant and his team used that very blanket to cover his face and they drove him away. Because his eyes were covered he could not see his way but they pushed him forward still beating him in the process. As he moved on like a blind person he knocked against the rocks and had to ask his assailants to uncover his face. His face was uncovered but the beating did not stop.
They got into the police vehicle and his feet were also tied and made to lye in the vehicle. That was the time when he heard first defendant asking him if he was that brave to have assaulted his father. First defendant also asked him about stolen goats and having killed a person all of which were denied by the plaintiff. He only said he had earlier quarrelled with the defendant’s father.
Plaintiff was then driven to Sehonghong, and up till that time he had not been shown any warrant of his arrest. Even at Sehonghong plaintiff said records were perused in search of his criminal involvements but none could be found. They drove back to Thaba Tseka police station where it was also found that there was no criminal record against him, safe a record which showed he had quarrelled with first defendant’s father.
Plaintiff said he was left there at Thaba Tseka police station for five days. He was never taken to Court. He was only taken out on the morning of the fifth day after one officer had asked as to who was groaning in the cells, and after he had seen him asking why he was there.
Plaintiff said none of the police who were there could explain why he was arrested. Even when they were asked to release him and take him to the doctor they refused to get involved as they explained that he was brought there by Mabote police. The police did not even know what he was suspected of.
Plaintiff said on his release since he could no longer walk properly his children even had to hire a vehicle to transport him. He consulted the doctor who prepared a report for him. Plaintiff even took the trouble to report the assaults on him by police as he considered what was done to him as a criminal conduct.
Plaintiff continued to show that he was examined by the doctor who prepared a report of his findings. The report was handed in as part of evidence. He said because the police were refusing to give him a medical form on his release, he had to ask for his lawyer’s intervention, hence why the report is dated 5th July, 2005. The report shows that plaintiff was complaining of chest pains as a result of the assaults on him.
Plaintiff was treated as an out patient. The report shows moderate force must have been used to cause the injuries on plaintiff and that there was neither any degree of immediate disability nor any long term disability. On danger of injury to life the doctor has ticked light.
According to plaintiff when the assaults were meted out to him his neighbours were standing outside their homes watching at that spectacle, and said he felt hurt and humiliated, and that if someone were to say that he was assaulted because he was resisting arrest that would not be true.
Under cross examination plaintiff denied that he ever assaulted first defendant’s father but that they had fought with him at plaintiff’s kraal at night. He said when he was so arrested the police never explained to him that it was for assault but was told of theft of goats and murder. It was, according to plaintiff only first defendant who asked plaintiff if he was that brave to have assaulted his father.
It was suggested to the plaintiff that he was released after only two days, but he denied that and showed that he was released after five days. He finally showed that when he was so released he was never told to report back to the police and was never taken before any Court of Law.
Plaintiff’s wife, Manthomeng Matete testified as the second witness. She said she was inside her house on the day in question whilst plaintiff was seated outside. She went out as she heard the dogs barking and a gun report. When she got outside she found two gentlemen holding the plaintiff with his blanket and assaulting him. One of those men got some branches from a tree and used them for assaulting plaintiff and calling him a fighter. She saw the two men push plaintiff to the vehicle behind the houses. Three men came out of that vehicle and 1st defendant was one of them. Plaintiff was assaulted by all those men and was tied with a rope. She saw the men cover plaintiff’s face with his blanket. He was made to climb up the rocks and first defendant kept on kicking him.
This witness said first defendant was even asking plaintiff if he had had the power to assault his father. She then went back home as the police took her husband away only to find him at Thaba Tseka police station after four days. When she enquired about his husband’s release she was told by the police that that could only be done by Mabote police in Maseru.
She said it was on the 4th day of his husband’s detention by police, that she left only to come back once again the following day. She had been there only to be assisted on the afternoon of that day by officer in charge at Thaba Tseka police station.
That officer made it possible for plaintiff to be released, but this witness pointed out that on his release plaintiff asked for a medical form which could not be released to him as Thaba Tseka police showed plaintiff was not arrested by them.
This witness showed she had to hire a vehicle to take plaintiff to the doctor as she realized that he was in pains. She confirmed what plaintiff has said that plaintiff did not set his dogs at the police. She said though she was at the time inside the house it was just so quiet that if it were true plaintiff set his dogs at the police she could have heard that. What she said was that plaintiff stopped the dogs as they were barking at the police.
P.W.2 also confirmed that she knew first defendant well as the person from their village. She said she came to know of the quarrel between plaintiff and first defendant’s father. She also confirmed that plaintiff was detained for five days.
Two witnesses were called for the defendants. The first witness showed that he was during the period under review stationed at Mabote Police Station here in Maseru. He together with six other police officers went out on patrol to Thaba Tseka and that first defendant was in that team also. He said they were investigating stock theft cases.
He said that when they got to Thaba Tseka they were joined by other police officers who had asked for a lift as they had no transport to Maputsoe Ha Monyane. The police from Thaba Tseka had shown that they were investigating an assault case. The complainant was first defendant’s father.
In his evidence, this witness showed that he was at the time not aware of the relationship between the complainant in the assault case and first defendant. He was only told by one of the police officers from Thaba Tseka who had asked for a lift from them.
This witness said as they got to where the police from Thaba Tseka were going, since he was head of the operation, he asked first defendant to remain at the vehicle as he had an interest in the matter. He then said two police officers from their team alighted and went to the village and when they later came to the vehicle they were in the company of the plaintiff. He was already handcuffed.
This witness admitted that police stations are divided according to areas they have to serve. He then said Mashai police station was the nearest police station to plaintiff’s place. He also said they had taken plaintiff to Mashai police station but denied that at Mashai police records were perused in search of the assault case by the plaintiff. It was however put to him that such evidence was not denied as plaintiff gave his evidence in chief.
The witness also admitted that the two police officers that went to plaintiff’s home to arrest him were police from Mabote not those from Thaba Tseka. He said though they had not suspected anything about plaintiff, they were however told about him by Thaba Tseka police.
The next defendant’s witness was police constable Rahae who was then stationed at Mabote police station like the first defendant’s witness. His evidence was the same as that of the previous witness, but he went further to say he was one of those who was detailed to go and arrest plaintiff for assault on first defendant’s father.
This witness said when they got to plaintiff’s place they introduced themselves and told him why they were there. He said plaintiff was not happy to hear why they were there and he set his dogs at them. They even had to fire a short in the air to scare away the dogs. He said plaintiff was resisting arrest hence why they had to apply force in order to effect his arrest.
The witness said though 1st defendant was in their company, he had however left for his home as they arrested plaintiff. They then drove to Sehonghong and back to Thaba Tseka where they left plaintiff in the care of Rasethuntsa when they drove back to Maseru. He denied ever assaulting plaintiff with branches from trees nor covering his face with his blanket.
The witness further showed that as they arrested plaintiff they were not armed with any warrant of arrest. They did not even report themselves to the chief of the area when they arrested the plaintiff. He confirmed that as they arrested plaintiff police from Thaba Tseka were not in their company. He denied when it was put to him that their interest in arresting plaintiff was to please their colleague, first defendant, as plaintiff had quarrelled with first defendant’s father.
This being a civil case the standard of proof is that on a balance of probabilities, Moru v Raselo and One 1995-96 LLR & LR 196. The Court therefore is asked to determine which between the evidence on both sides seems to be the more probable.
It has not been denied that the police from Mabote Police Station went out in a team to Thaba Tseka. They said they had gone out on patrol for stock theft cases, but looking at the facts, should they be believed when the say so?
To get an answer to the above the Court was told that plaintiff had had a misunderstanding with the first defendant’s father. That is common cause. And plaintiff and his wife have shown in their evidence that amongst the police who visited their home was first defendant. They both said 1st defendant joined in the assault on plaintiff and was even asking plaintiff as to how brave he had been to have attacked his (1st defendant’s) father.
First defendant sought to deny that he was amongst the group that went to plaintiff’s house and assaulted him. He said he did not go to plaintiff’s home but that since plaintiff is their neighbour he had gone to his home to visit his family.
Plaintiff had gone further in his evidence to show that after he was assaulted he was driven in police vehicle to Sehonghong where plaintiff according to the said Mabote police was suspected of having stolen some goats and also charged with murder. But plaintiff showed even there there was nothing in the occurrence book to that effect.
Even here it became clear that it was still the Mabote police who were suspecting plaintiff of assault with intent to do grievous bodily harm on the defendant’s father. Nothing was said to him by the police officer from Thaba Tseka who were in their company. Even the police officers who gave evidence for the defendants were Mabote police. None from Thaba Tseka police station felt that they were obliged or owed a duty to explain to the Court what exactly happened on that day.
In an effort of explaining how plaintiff got injured during his arrest the first defendant’s witness showed that plaintiff was resisting arrest so that they were forced to apply force so that they could effect the arrest. But we have been told in evidence that plaintiff was already an elderly man at the time, about 70 years old. He further said as they were struggling with plaintiff, plaintiff knocked against the walls of his houses, though we were never told if they were built of mud, bricks or stones. According to this witness plaintiff was never assaulted until he was handed over to Thaba Tseka police.
The evidence of the second defendant’s witness was no different from that of the first witness. It would thus be interesting to quote from the defendants heads of argument where counsel said this:
“The defence witnesses gave evidence with regard to the question of arrest and assault but did not answer to the question of detention. The claim for unlawful detention therefore remained unrebutted as the defence had failed to give evidence in that regard.”
But when same counsel said he was analysing the evidence he said it was not enough to have shown that the issue of unlawful detention was not rebutted.
He said because plaintiff was arrested on the 17th June 2005, which happened to be on a Friday, considering the provisions in the Interpretation Act, Saturdays and Sundays are not to be included in the computation of days. So that according to him even if plaintiff was arrested for five days the detention was still lawful because the Saturday and Sunday are to be left out.
Both plaintiff and his wife showed that plaintiff was arrested on Friday only to be released on Tuesday. It would seem that they were not going to release him any time soon had the wife not approached them to enquire about her husband. The wife said she approached Thaba Tseka police on the fourth day of his arrest but she was told her husband could only be released by Mabote police in Maseru as the people responsible for his arrest. She had to come back the next day, which was the 5th day where she had to wait there stranded till in the afternoon when she eventually was assisted by the officer in charge.
Addressing the submission by the defendant’s counsel in saying the forty-eight hours detention under the Criminal Procedure and Evidence Act 1981 (CP&E) excludes both Saturday and Sunday, I would not agree with him on that.
Plaintiff’s counsel has shown that if Saturdays and Sundays were to be excluded the legislature could have clearly spelt that out if that was the intention. I wouldn’t agree with him more on that.
Again The Lesotho Constitution 1993 at Section 6 (2) (b) thereof provides in no uncertain terms that a person arrested or detained for purposes of bringing him to Court - -- - - - - - - -- - - - - - - - shall be brought to Court within (48) forty eight hours of his arrest.
Plaintiff has shown in evidence that he was on his arrest never been told as to what he had done safe for first defendant commenting of his bravery in having fought or assaulted his father. He even said no warrant of arrest was ever shown to him.
On the evidence put before Court I find that plaintiff has on a balance of probabilities managed to prove his case against the defendants for the following reasons;-
Assault
Evidence has shown that plaintiff was arrested by police from Mabote not Thaba Tseka police. He was only detained at Thaba Tseka police station. Plaintiff has explained how all those police assaulted him with sticks, kicking him and causing him to fall as he was taken to the vehicle with his eyes covered. His wife saw the assaults on her husband.
When plaintiff asked for a medical report from the police on his release he could not be furnished with one as Thaba Tseka police said it was not their concern but that of Mabote police. Plaintiff even said he could not get all what police were saying amongst themselves about him as they were speaking in English and could not understand the language.
The medical form was eventually given after plaintiff’s counsel’s intervention hence why it was filled days after his release, which is the 5th July, 2005. The form was filled after same days when the injuries no longer were visible except the chest pains.
The police from Thaba Tseka even shyed away from giving evidence because they knew were liable. Their counsel even said in his heads that:-
“It is on record that the defence intended to bring two more witnesses, but after repeated attempts to secure their attendance, the defence had to close its case without their testimony. One of the witnesses is Monyane Monyane, the 1st defendant in this matter.”
Referring to section 8 (1) of the Constitution, plaintiff has shown that it provides that no person shall be subjected to torture or to inhuman or degrading punishment or treatment. Assault in whatever form is a delict which affects a person’s bodily integrity. Plaintiff has shown how he was assaulted and his wife confirmed that.
Pain and Suffering
Plaintiff has shown in his evidence that he was assaulted by the police who effected his arrest. He was left in police cells for five days without seeing a doctor. He was groaning with pains whilst he was in his cell which thing even called the attention of the officer in-charge who had to ask who it was that was groaning. When one is assaulted, he definitely is going to feel pains and also going to suffer. He suffered because the pain was prolonged by the length of time in detention.
Contumelia
As rightly pointed out by the plaintiff’s counsel, the above affects the person’s dignity which would include substantive feelings of dignity or self respect. It is for the plaintiff to show that he actually felt insulted as a result of defendants conduct. A person’s dignity may be violated by any conduct which made plaintiff feel insulted.
Plaintiff has shown in his evidence that when he was so assaulted, kicked and pushed forward by police, members of his village were standing outside witnessing the spectacle. He said he felt hurt and humiliated as people would consider him as a thief and a criminal. He said he used to earn respect from members of his community who used to consider him as a rich person in the village and more respectable. He was considered by some people of his village after that incidence as a thief and that has tarnished his dignity.
Defendants said plaintiff has not called any evidence to show how he was considered by members of his community. The answer to that would come from the case of Theko v Commissioner of Police and Another 1990 – 95 239 at 242 when Steyn JA (as he then was) has this to say;
“I must point out that no attempt was made by the respondents to reply to or challenge the correctness of the averments contained in the affidavit of the attorney Mr Maqutu. The issues in our view must therefore be resolved on the basis of the acceptance of the unchallenged evidence of our officer of this Court.”
In casu, plaintiff’s evidence has never been challenged either during cross examination or evidence in chief, by the defendants witnesses. It is therefore to be considered as the correct version to be accepted by the Court on how he was considered by members of his community.
Unlawful Arrest
Plaintiff has testified that he was arrested without a warrant, and that therefore that were no grounds justifying his arrest. It was put to him that there was a warrant when he was so arrested but the defendants never produced before Court any such warrant. Because the arrest was without a warrant it was unlawful.
The CP&E has detailed out the procedure to be followed in effecting a lawful arrest, section 25 there of:
- Where offence is committed in the presence of the peace officer,
- Any person found in possession of any implement of housebreaking and not being able to account for such possession
- Where peace officer finds one attempting to commit a crime, and many more.
It was not denied that plaintiff was found seated outside his house not committing or attempting to commit a crime.
Above all, the Lesotho Constitution under section 6 thereof provides that every person shall be entitled to personal liberty which means his arrest and detention must be in terms of the law.
Unlawful Detention
The Constitution of Lesotho provides for lawful detention. Plaintiff and his witness has shown that he was released on the 5th day of his arrest. Defendant’s counsel sought to justify that by showing that in computing 48 hours Saturdays and Sundays are to be excluded.
It would be observed that both the CP&E and the Constitution talk about hours not days. The submission by defendants’ counsel does not hold water.
Plaintiff has even shown that he was arrested in the morning hours so that the computation of hours would not even start from late afternoon but during the day. I must mention that I too took the trouble to check on what day of the week the 17th June 2005 fell and indeed I found out that it fell on a Friday.
Plaintiff’s counsel has said it all that if it was the intention of the legislature to have excluded Saturdays and Sundays that could have clearly been stipulated.
As already shown above I find plaintiff to have proved his case on a balance of probabilities, that it is more probable that not that he was assaulted by the police and amongst them, first defendant. In the process he felt pain and suffering and his dignity was impaired. His arrest and detention were also unlawful.
On the authority of Mohlaba and Others vs Commander Lesotho Defence Force and Others 1995 LAC 191 where the Court said:
“There are no scales by which pain and suffering can be arithmetically measured in money,”
I too share the same sentiments for unlawful arrest and detention and assault.
Judgment is thus granted for the plaintiff in the following manner;
Assault - M5,000.00 (five thousand maluti)
Pain and Suffering - (10,000.00 (ten thousand maluti)
Contumelia - M8,000.00 (eight thousand maluti)
Unlawful Arrest - M8,000.00 (eight thousand maluti)
Unlawful Detention - M20,000.00 (twenty thousand maluti)
Total - M51,000.00 (fifty one thousand maluti)
with costs.
A. M. HLAJOANE
JUDGE
For Plaintiff : Mr Sepiriti
For Defendants : Mr Molokoane
