CIV/T/299/85
IN THE HIGH COURT OF LESOTHO
In the matter of:
'MAKAIBE MOKOMA Plaintiff
v
LEFU MALATA 1st Defendant
LETOALA MALATA 2nd Defendant
JUDGMENT
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 12th day of December,1988
The plaintiff widow brought this action for damages in the form of dependant's compensation of M132,000 for actual pecuniary loss
suffered by her and her three children by reason of the death of her husband, Motseki Benedict Thabiso Mokoma, at the hands of the two defendants on 9 July 1984 at Mokhethoaneng in Berea District.
The hearing of this case was fixed for 2 December 1988 after some earlier postponements. The defendants' attorneys, Messrs Khauoe & Co, were served on 16 August 1988, that is over three and a half months before the hearing date, but they did not appear in Court all day. I understand that the defendants are in prison. As it was too late to start the hearing ex parte on 2 December, a fresh date was fixed for 7 December. The defendant's attorneys have not appeared
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at all nor did they make any enquiry or report to the Court as far as I know. At the request of Mr Pheko for the plaintiff, leave was given for the plaintiff to proceed ex parte.
On 9 July 1984 the deceased was herding his cattle and other livestock at Majara in the late afternoon. Also herding cattle there was one Malefetsane Matsietse (PW2) and another herdboy called Lebohang who did not testify. The two defendants arrived on the scene separately and proceeded to beat the deceased with sticks. They also set dogs on to him. Malefetsane stood some distance away and he could not hear what was said. He also found difficulty in seeing what was happening to the deceased who was lying down hidden by the stalks of maize. He could see sticks going up and down where the deceased was lying. It also appears that one of the defendants used a knife or some other sharp instrument because there were various cuts found on the body.
When the defendants had finished their attack on the deceased they went away. Neither Malefetsane nor the other herd boy made any attempt to assist the deceased at any time. They did not even go to him after the defendants had left in order to see if he was alive or if they could help him. They merely went away from the scene with their cattle. They did not even bother to report the incident to anyone. According to Malefetsane they were afraid. They seem to have been thoroughly irresponsible.
The deceased's father, Heaget Mokoma (PW3), said that he received no report at all that day from anyone. When it was dark and the deceased had not come home with the animals
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he set out to search for him. He found the cattle unattended coming out of a field belonging to one 'Mamahlape Molisana. He drove them home and put them into the kraal. He and another man called Matsoso Moqasa went to search the area for the deceased. They eventually found him some hours later lying in a field next to where the cattle were found.
Mokoma (pw3) said that he saw numerous injuries on his son's body and that he was already dead when he found him. He described five open wounds on various parts of the head and many knife cuts behind both knees and both ankles. It appeared that an attempt had been made to maim the deceased by cutting through the muscles and tendons. There was a lot of a blood in the area around the body and some pieces of a broken stick were seen lying nearby. The clothes and gum-boots of the deceased were ripped and torn. Mokoma reported the matter to the police at Teyateyaneng and they came to the scene and removed the body.
Both defendants were tried in the High Court in January 1986 and convicted of murder in extenuating circumstances. They were each sentenced to imprisonment for 15 years. Their appeals were heard in October 1987 and their convictions were confirmed but their sentences were each reduced to imprisonment for 12 years (see: C. of A. (CRI) 3 of 1986).
From the testimony given in this Court as well as from the record of the Court of Appeal, I am satisfied that there is more than sufficient evidence that the two defendants were responsible for causing the death of the deceased, and so they are liable for any financial loss suffered by the
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deceased's dependants as a direct result of his death.
In order to calculate this loss, if any, the main factor must be the difference between what they, with a reduced income, will actually
enjoy and what they might reasonably have expected to enjoy if the deceased had lived (see: Legal Insurance Co. Ltd v Bores 1963(1) SA 608 (AD) and Davies v. Powell Duffryn Associated Collieries Ltd 1942 AC 601). From the estimated value of the support of which the plaintiff has been deprived there must be deducted any benefits which the plaintiff has acquired from the deceased's estate. ft is in the calculation of this support and the benefits still received by the plaintiff that the difficulty arises in this case. This is because the testimony about this by the plaintiff wife of the deceased (PW1) and the deceased's father (PW3) is both contradictory and inconsistent. Both appear to have been making estimates and there was clearly a certain amount of exaggeration as usual in these cases.
The plaintiff said that the deceased was aged 38 years when he died and that they had three children, Litlhare, a girl born on 13 June 1979; Kaibe, a boy born on 7 November 1981 and Liekeng, a boy born on 29 June 1984. The last child was in fact born only ten days before the death of the deceased.
At first the plaintiff said that the deceased had owned two shops selling groceries at Mokhethoaneng and Makabe. Later she changed this to be two cafes at the same places. Since she also claimed to be running them now, it is difficult to understand how or why she first gave the wrong information about them. There is quite a lot of difference between a
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grocery shop and a cafe. This sort of contradiction does not impress the Court with a plaintiff's credibility.
She said that the deceased owned a van and a tractor. The latter he hired out to people for a fee. He owned livestock of 200 sheep, kept for wool that was sold each year, and ten head of cattle. The tractor is now under the care and use of her brother-in-law and the proceeds from it still go to the plaintiff. She later contradicted this and said that it was no longer being hired out but only used in the family. She runs the cafe at Mokhethoaneng and the other is run by her brother-in-law but for the plaintiff's benefit. The livestock are now looked after by the deceased's father (PW3). The plaintiff claimed that the deceased's income was approximately Ml,000 per month from his businesses but that there was extra income from hiring out the tractor and selling wool. She said that he gave her approximately M250 per month for her own maintenance and M100 per month for each child; a total of M550 p.m. She said that he would have provided this maintenance for another twenty years, hence the calculations in her Declaration producing a total of Ml32,000.
She said that she still sells the wool and she receives about M500 per annum from the sale, and the deceased's father helps her with about M200 p.m.
The information provided by the deceased's father 8pw3) was different in several respects. He said that the plaintiff is now running both cafes and not only one of them as she claimed. He said that the deceased owned 800 sheep and 30 head of cattle as compared with the plaintiff's 200
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sheep and 10 head of cattle. He added that the deceased also owned 300 goats, 7 donkeys and 3 horses. He claimed that the deceased used to look after them himself and that now there was nobody to do that. I find that difficult to believe. If the deceased looked after all those animals daily as well as driving his tractor out for hire and driving his van to collect supplies for both cafes, he would have been kept very busy. But the witness (PW3) added that he also ran a mill for grinding grain and had a full time Government job in the Audit department. Neither of these was mentioned at all by the plaintiff and I simply do not believe that the deceased was in fact engaged in so many activities that would have required him to be in several places simultaneously each day.
The witness (PW3) was unable to give any details of the deceased's alleged position and salary in the Audit Department and, in addition
to the plaintiff not mentioning it in Court, there was no reference to it in the plaintiff's declaration, so I shall ignore it.
The plaintiff said that the deceased's father (PW3) helps now with about M200 per month. However, he said that the amount is M400 and that he was doing this even when the deceased was alive. In view of the evidence of the income to the deceased from all of his enterprises, I find it difficult to believe this witness (PW3), especially as later in his testimony, when he was being questioned by the Court, he declared that in fact the deceased kept him and paid for everything. The witness stated that he never paid for anything and that the deceased bought all his needs. Clearly then the witness would not have been likely to do the reverse as well.
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With such very contradictory and clearly unreliable information before the Court, it is not at all easy to discover whether the plaintiff is now financially worse off or even better off than before the deceased died. And that is the main question which is relevant for the purposes of this action. The Court is only concerned here with the material loss, if any, of the plaintiff's support and assistance and not with her loss of a husband's comfort and society, which latter affects the feelings but not the property of the wife.
The plaintiff still receives the income from the two cafes and from the sale of wool. The livestock (whatever their numbers) are still available to her. The tractor is still available for hiring out and, although it is not being so used, according to the plaintiff, it could be, because it is still working mechanically. The van is still available for restocking the cafes and for other use. The plaintiff said that it is used to restock the cafe in Makabe but not the one at Mokhethoaneng, and that she has to hire transport to bring stock to that one. There was no explanation of why this was so. She said that she pays about M200 per month for hiring such transport, but I am inclined to doubt this claim. There was certainly no proof of it.
The impression I received in Court is that the plaintiff and her father-in-law (PW3) are trying to squeeze as much money as possible
out of the defendants. This is perhaps understandable in view of the savage way in which they caused the death of the plaintiff's husband. But it is not the function of this Court to inflict punitive sanctions on the defendants in a civil suit of this type. We are concerned here
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only with any actual loss incurred. I cannot agree that the plaintiff and her children have lost all maintenance and support as claimed in the summons. It is clear that this is by no means so, and the plaintiff admitted in Court that she still receives an income, as described above. In my view it is certainly not an insignificant income but in fact quite substantial. There is no justification for the huge claim made in the summons.
In the plaintiff's summons she claimed that the deceased was aged 38 years when he died and that he would have maintained his family for another twenty years. The calculations shown were as follows:
For plaintiff : M250 x 12 x 20 = M 60,000
For children : M100 x 3 x 20 = M 72,000
M132.000
However, in view of the deceased's age of 38 years, I would consider that the appropriate period would be nearer to 17 rather than 20 years. In addition, it is customary in such cases to reduce the multiplier because the amount awarded comes in a lump sum rather than in small instalments spread over many years. Thus, I would say that a suitable multiplier would be 12 for the plaintiff. For the children it must depend on their ages and when their minority ceases. The same multiplier would not be appropriate . In this instance the multipliers will be 16, 18 and 20 respectively.
Doing the best I can in view of the unreliability of the figures given to the Court, I am of the opinion that the plaintiff has not lost much financially as a result
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of the death of her husband. In the circumstances I consider that there has been a very slight loss and that only a nominal sum would be appropriate. I would therefore allow monthly sums of M20 for the plaintiff and M5 for each child. This will produce the following figures:
Plaintiff: M20 x 12 x 12 = M2,880
Litlhare (aged 5) M 5 x 12 x 16 = M 960
Kaibe (aged 3) M 5 x 12 x 18 = Ml,080
Liekeng (aged 1) M 5 x 12 x 20 = Ml,200
Total = M6,120
The children's ages are shown as at the date of the deceased's death.
Accordingly, judgment is entered in favour of the plaintiff against both defendants jointly and severally in the sum of M6,120 general damages with interest at 11% from the date of judgment and costs in the suit.
P. A. P. J. ALLEN
JUDGE
12 December 1988
Mr Pheko for plaintiff ex parte
