CIV/T/425/88
IN THE HIGH COURT OF LESOTHO
In the matter of:
LENKOE TS'ITA Plaintiff
v
2/LIEUTENANT PENANE 1st Defendant
MATHABANE 'MAMOJAKI SEBELE 2nd Defendant
JUDGMENT
Delivered by the Hon. Mr Justice Sir Peter Allen on the 5th day of December 1988
The plaintiff, a 53 years old nightwatchman, brought this action for damages for assault and injuria and unlawful arrest and detention as a result of an incident at Butha-Buthe on 16 April 1988. He claims Ml5,000 for assault, M8,000 for injuria and M7,000 for unlawful
arrest and detention.
The defendants are both police officers. The plaintiff has chosen not to join the Attorney-General and the Commissioner of Police as co-defendants on the grounds that the defendants acted personally and not in their official capacity as police officers. The defendants were served on 14 June 1988 and neither of them has entered an appearance. The plaintiff applied for and was permitted to proceed to prove his claim ex parte.
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The plaintiff (PW1) said that he was employed as a nightwatchman at Sekekete's Hotel at Butha Buthe. On the night of Saturday 16 April 1988 he was on duty at around 2.00 a.m. when he saw someone break the glass of a window of a room in the building occupied by one Maphuthi Leoma, the wife of the hotel proprietor Sekekete. The plaintiff shone his torch and saw and recognised the first defendant Penane whom he knew. He apparently broke the window with a stick. When the plaintiff shone his torch Penane ran away.
The next evening at about 7.30 p.m. when the plaintiff was back on duty again, the first defendant 2/Lieut. Penane came in a motor vehicle driven by the second defendant Sebele whom the plaintiff knew to be a driver in the CID at Butha Buthe. Penane told the plaintiff that he was arresting him for having reported the incident to the hotel proprietor Sekekete and for saying that Penane was in love with Sekekete's wife. Penane said that as there was a state of emergency existing he was arresting the plaintiff under the Emergency Regulations for the reasons given above.
The second defendant seized his legs and the first defendant squeezed his neck and he fell over. They then kicked him on his body and removed him in their vehicle to the charge office where he was taken into 2Lt Penane's office by both defendants. The door was locked and a blanket placed over the plaintiff's head. The defendants then beat him on the body with their fists, butted him with their heads and kicked him. Penane told him again that they were beating
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him because of telling Sekekete that Penane was in love with Sekekete's wife. He was treated in this fashion and kept in the office from 8.00 p.m. to 9.30 p.m. (for about 1½ hours) and then released and told to go away. He started to walk away and the defendants followed him slowly in their vehicle with its lights out.
The plaintiff had earlier seen a gun in the vehicle and Penane pointed it at the plaintiff through the car window threatening to shoot him. Another vehicle approached with its lights on. The defendants then switched on their lights and drove away.
On Monday 18 April the plaintiff went to the dispensary at Butha-Buthe Hospital. It is not clear what happened then but, it seems; that he made a second visit on Wednesday 20 April after obtaining a medical report form from the charge office (exhibit 'A'). He was seen by Dr. Shayo (PW2) who examined him. There were no wounds, cuts or buises found; only what were described as soft tissue injuries to various parts of his body. The doctor said that these amounted to swellings and the plaintiff complained of much pain. He was given paracetamol tablets (like aspirins) and told to come back if the pain got worse. That was the only treatment given and he did not return. It is clear from this that the injuries were not serious and there were no after effects.
Mr Rakuoane for the plaintiff was asked to justify the large amount of damages claimed, a total of M30,000. He submitted that the two police officers had abused their authority
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and powers by making a totally unauthorised arrest on personal grounds rather than for any official or lawful reason. They had abused and assaulted this elderly nightwatchman who had done nothing but carry out his duty. He cited three earlier cases with regard to the quantum of damages.
In Solicitor General v Mapetla C of A (CIV) No.17 of 1984 (unreported), the plaintiff was arrested by police officer; in November 1982 for alleged subversive activities and detained for nearly three days and then released. He was assaulted though details were not shown. However this plaintiff was a 78 years old chief of considerable standing in the Kingdom. The Court of Appeal in 1985 reduced the original award to M8,000 for assault, arrest and detention combined.
In Kalaoane v Tuke & 4 Ors. CIV/T/37/84 (unreported), the plaintiff, a tailor, was. set upon and assaulted by the defendants in July 1981 with sticks and sjamboks all over the body. He sustained multiple injuries with wounds to his nose, right ear, back of the head and the tip of one finger was cut off. He was awarded M2,000 in 1987 for combined assault, pain and contumelia.
In Makhesi v O.C. Police Mafeteng & Anor CIV/T/380/86 (unreported), the plaintiff was the manager of a hotel in Mafeteng which was robbed. He gave the police a description of the robbers and some people were arrested. Later the police also arrested the plaintiff
and took him to the charge office for interrogation. He was detained for two full days before being released without any charge being brought against him.
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He was awarded M4,000 (M2,000 for unlawful arrest, Ml,5000 for unlawful detention and M1,000 for loss of reputation) in 1988.
All of these cases were clearly of a more serious nature than the present case; the periods of detention were much longer and the injuries were more serious.
In the present case the plaintiff was detained for 1½ hours at the most, his injuries were painful but, from the physical point of view, they were trivial. However, it is clear that these police officers seriously abused their positions and authority for personal reasons that had nothing to do with their duty. They had absolutely no justification for arresting the plaintiff and no lawful excuse for assaulting him. He was elderly and defenceless. It was disgraceful behaviour.
But this does not in any way justify such a huge claim for damages as M30,000 with interest at 22%. That is patently absurd and it does not help the plaintiff to win the sympathy of the Court when he makes such exaggerated and greedy claims. In my opinion a case of this sort could easily and properly have been dealt with in a magistrate's court.
There was no evidence that the plaintiff nightwatchman had any special standing in his community; the incident was not witnessed by any members of the public; the plaintiff was not off work as a result and his injuries were not at all serious. Consequently I consider that an appropriate award would be Ml,000 for assault and injuria, and M1,000 for unlawful arrest and detention.
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Accordingly, judgment is entered in favour of the plaintiff against both defendants jointly and severally for general damages amounting to M2,000 with interest at 11% from the date of judgment and costs in the suit.
P. A. P. J. ALLEN
JUDGE
5 December 1988
Mr Rakuoane for plaintiff ex parte
CIV/T/550/87
SALEMANE PHAFANE Plaintiff
HATLA MOLEFI Defendant
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 5th day of December, 1988
The plaintiff brought this action in negligence for damages resulting from a collision between two motor vehicles in June 1983. He claimed M13,500 damages for three months loss of income from the vehicle as a taxi, and M3,514.68 for repairs to his vehicle. The defendant counter-claimed also in negligence for damages of M540 for repairs to his own vehicle.
The plaintiff,a legal practitioner, testified that he was the actual owner of a 1980 Datsun Kombi registered number A2768. He said that it was first registered in April 1981 (exhibit 'A') in the name of his brother M.M. Phafane for convenience, because it was to be used as a taxi operating between Maseru and Matsieng and Morija, and his brother held a permit to carry passengers (presumably under s. 44 of the Road Traffic Act, 1981).
The plaintiff received the profits from the taxi business. His driver on the day in question was one Mokhajoa Semello, who did not testify as, according to the plaintiff, he had since left the work and disappeared.
The defendant testified that he was the owner and driver of a light van registered number A5611. He was alone in the vehicle at the time.
On 16 June 1983 the plaintiff's taxi was being driver to Maseru on the main South One road from Mafeteng to Maseru. It was carrying ten passengers including the plaintiff who sat on the right side at the front end just behind the driver. The road surface was dry tarmac and the weather was clear and bright at between 8.30 and 9.00 a.m. It was travelling at between 50 to 60 k.p.h. as it approached a cross roads. This was the junction with the Mofoka to Mantsebo road which crossed the main road diagonally from south-east to north-west. This is a minor gravel road and motor vehicles are required to stop both ways at the junction with the main road.
When the plaintiff's taxi reached the junction and was driving across it the defendant's van came from the right side, i.e. the direction of Mofoka, heading across towards Mantsebo and the two vehicles collided. On the other side of the junction on the left side of the main road there was a bus stop with a LNBS bus stationary at the stop, partially off the road. The first collision caused the plaintiff's vehicle to go on and collide with the rear of the bus. Thus the taxi was
damaged on its right side by the first collision with the van and on its front by the second collision with the bus. The van was damaged slightly on the left front only. The police accident report (exhibit 'B') was put in by consent.
According to the plaintiff the defendant's van failed to stop at the junction. It just came straight into the main road and struck the taxi on the right aide, particularly just behind the driver's door. This was the side where the plaintiff was sitting and he said that he could see what happened clearly.
According to the defendant he stopped his van at the junction and looked to his right and left. There was no traffic in view except for the stationary bus on his right and a truck parked off the main road on his left. As the main road was clear he started to move slowly across the junction. This was because there were pedestrians moving in the road along which he was about to drive on the other side of the junction. He said that the whole of his van had just crossed the white line in the centre of the main road and his front wheels were on the gravel road when the taxi suddenly appeared and collided with him on his left side. He claimed that the taxi could easily have avoided the collision by passing, behind his van.
When asked why he did not see the taxi approaching along the main road the defendant said that the taxi came at a high speed and that there was slope up-hill on
the main road towards the junction which meant that the taxi did not come into sight until it reached the top of the slope and the junction. This slope was not men-tioned at all by either the plaintiff or the defendant until the defendant was being cross-examined. The police accident report makes no mention of any slopes in the area and shows a level intersection.
Also it tends to contradict the defendant's state-ment in his examination-in-chief in which he said that he stopped at the junction, looked both ways and saw that the main road was clear of traffic. He did not then mention any slope nor did he claim that his view was obscured by a slope or by anything else. I think that this was an after thought.
The plaintiff said that several of the passengers in his taxi were injured. After the accident he got
out and so did the defendant. The plaintiff spoke to him. He said that the defendant looked cool and unshaken and that he told the plaintiff that he had been in a hurry to get to work. The defendant, however, denied speaking to the plaintiff and added that the plaintiff in fact was not there at the scene at all.
The plaintiff's vehicle was extensively damaged, mainly on the right side to the door, the side and rear windows and side panels and on the front the damage was to the lights, windscreen, mirrors, roof and left side door and seats. The garage quotation was for M3,514.68 (exhibit 'D') which was put in unchalleged.
The defendant's vehicle was slightly damaged on the left front mudguard and bumper and that aide front wheel rim and tyre. He put in his bill for repairs amounting to M540 (exhibit 'F') for which he counter-claimed.
The plaintiff said that he met the defendant on the following day, 17 June 1983, at the defendant's office at his place of work at Metropolitan Building in Maseru where he is a life insurance agent. Present at that meeting, besides the plaintiff and the defendant,
were the plaintiff's brother, Motlalepula Phafane, the defendant's employer, Peter Ramakhula, and a cashier called 'Mabeta Kuena. An agreement was drawn up in Sesotho (exhibit 'C') and signed by all present. The translation reads:
I Hatla Molefi of Phahameng Morija under Chief Masupha Seeiso, do hereby agree on this 17th June, 1983 that on the 16th June, 1983, I was driving my motor vehicle registration number A5611 on the Maseru-Mofoka road when I was at Ha Mantsebo in the District of
Maseru I drove into Motlalepula Phafane's motor vehicle of Ha Tsilo under Chief Masupha Seeiso. His vehicle is registration number A2768 and that vehicle was damaged.
I therefore undertake on this 17th June 1983 that I shall fully bear the costs of repairing the said motor vehicle A2768 to the
satisfaction of both Mr. Phafane and myself.
I further undertake to pay monthly instalments towards the purchase price of the said vehicle until it is once
again roadworthy. I undertake further to pay 50% of the said vehicle's driver's monthly salary until the vehicle has been fully
repaired. I will make all the aforementioned payments between the 28th and 30th of every month. I am requesting Mr Phafane to assist me effect repairs to the vehicle aforesaid.
Parties to the agreement: Signed: H. Molefi M. Phafane
Witnesses : Signed: P. Ramakbula M. Kuena
Salamane Phafane
The defendant agreed that the meeting took place and that he signed the document, but he added that his employer Mr Ramakhula persuaded him to sign it and advised him that he would lose the case if the plaintiff took it to court. The defendant said that he disagreed but he was frightened so he signed it. No threats were made and he did not say what caused him to be frightened. He admitted that he already knew the plaintiff, so he was not among strangers. In 1983 he was aged 36 years, a mature man with a responsible job. Furthermore, there was no mention of this agreement, nor a repudiation of it, in his plea and counter-claim. Again I think that this was an afterthought, and a very unconvincing one at that.
On the other hand, the plaintiff did not mention at all this agreement in his declaration and so he was plainly not relying on it. I do not regard such
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agreements as being of very great importance in traffic running-down cases. These are actions in negligence and the Court will decide them in accordance with the facts revealed concerning the events at the scene rather than what was discussed at a subsequent meeting. At any rate the defendant paid nothing and this suit was eventually brought.
The question is which version is more probably the true one. The defendant said that his vehicle was almost across and just leaving
the junction when he was struck by the plaintiff's vehicle. The plaintiff said that the defendant's van ran into the right side of the taxi on the junction itself. It is thus necessary to look at the damage caused.
If the defendant's version was correct then the front of the plaintiff's vehicle would have struck the left side and rear of his van. But his van was damaged only at the left front, that part which the defendant said was already across the junction and on to the gravel side road. There was no damage to his left side and rear at all. Furthermore, it would not explain the extensive damage caused to the right side of the plaintiff's taxi.
The plaintiff's version describes the defendant's van coming from the side road without stopping and then colliding with the right side of the taxi. The damage to the front of the taxi being caused by the resulting collision with the stationary bus. Thus the damage to both vehicles fits in reasonably well with the plaintiff's
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version but not with the defendant's version. I would accept the plaintiff's version as being more likely to be accurate. I did not find the defendant to be either convincing or truthful as a witness.
Furthermore, the defendant had no driving licence at the time. This was shown on the police accident report and not denied by the defendant. He was thus a person who was not competent to drive a motor vehicle and he should not have been on the road at the time. That alone is prima facie evidence of negligence by the defendant. It is puzzling why the police did not prosecute him.
The law is very clear with regard to right of way. Vehicles on a main road always have right of way. Vehicles coming from a side road are required to stop at a junction with a main road. They must wait until the main road is completely clear and safe before crossing it or turning into it. A collision in such circumstances is prima facie evidence of negligence by the driver from the minor road.
Mr Mafisa for the defendant submitted that this was not so. He referred to two very old cases in support of his argument. In Robin Bros. v Henderson 1928 A.D. 138, a collision occurred between two motor vehicles at a cross-roads in the town of Durban. There was evidence that although the plaintiff's car had right of way, his driver saw the defendant's car approaching the crossing
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and continuing across without stopping. In spite of this the plaintiff preferred to ignore him and to drive across because he had right of way and he expected the defendant to respect his right of way. The Court of Appeal held that the trial court had come to the proper conclusion in holding that the plaintiff was guilty of contributory negligence because he acted unreasonably in the circumstances. But this did not change the basic fact that the defendant was in the wrong and negligent as he should have stopped.
This was not applicable to the present case in which the plaintiff's driver had no time to see the defendant before he came into the junction and ran into the side of the plaintiff's vehicle. I can see no contributory negligence there.
In De Kock v Silva (1934) T.P.D. 150, a similar collision occurred at a cross-roads in Johannesburg. The plaintiff motor-cyclist had right of way at a crossing a proceeded across. He saw the defendant's car approaching but the defendant did not see him, nor did he stop. In fact he drove on to the wrong side of the road and struck the plaintiff's rear wheel. On appeal the plaintiff was held clearly not to blame as the defendant negligently failed to observe him and also drove on the wrong side of the road.
I cannot see how this case can help the present defendant since it, too, was an instance of negligence by the driver coming into a junction where he should have stopped.
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Mr Mafisa submitted that even though the plaintiff had right of way he should have tried to avoid the accident. This is so when a driver can see the other vehicle in time to take avoiding action, but, in this instance, the defendant came from a side road into the main road without stopping and struck the plaintiff's vehicle in the aide. There would not appear to have been any effective avoiding action for the plaintiff to take in such circumstances since he did not see the defendant in time to do anything about it. I do not consider that the plaintiff's driver was guilty of any contributory negligence. On the balance of probabi-lities I find that the defendant was clearly negligent and was solely to blame for the collision.
With regard to damages, the plaintiff's first claim was for M13,500 for loss of earnings from the taxi over a period of "about three months" while it was being repaired from July to September 1983. However, no specific dates were given, as they ought to have been, and I shall take it that the period July to August and August to September in fact covers a period of only two months (60 days) and not three months.
The plaintiff put in a thick wad of documents (exhibit 'E') purporting to be daily records of his taxi for 40 days from 1 May to 9 June 1983 showing that, after deductions for food and fuel, the daily takings ranged from M138 to M168. He said it averaged M150 per day, which in fact is about right.
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The plaintiff said that he operated the taxi for seven days a week and that it gave no trouble as it was a new motor vehicle. He added that if the driver took a day off he, the plaintiff, would take over and drive it in the week-ends. However, I cannot accept that since the plaintiff had earlier stated that he did not hold a permit to drive a public motor vehicle. He cannot claim for loss resulting from the illegal use of the vehicle. Furthermore, in 1983 the vehicle was already two years old and, aside from defects and repairs which must have occasionally occurred, it would have had to have been serviced fairly frequently as well, due to the continual use of it on these daily journeys.
Thus for the driver's days off and for days when the vehicle might have been off the road, I would deduct ten days from the 60. So that leaves 50 days at M150 per day, giving a total of M7,500.
The other part of the claim was for M3,514.68 for repairs to the plaintiff's vehicle, which was not disputed. No general damages were claimed.
One last point is that in his final address to the Court Mr Mafisa decided to attack the locus standi of the plaintiff on the grounds that he was not the re-gistered owner of the taxi and the repair quotation and the alleged agreement were both made out in the name of the plaintiff's brother.
However, counsel's final address after trial is not the proper time to bring up matters of locus standi
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for the first time. It is much too late then. There should have been such a challenge made in the defendant's plea and again at the commencement of the hearing before the evidence was recorded. Once the trial has taken place the defendant and the Court can be taken to have accepted the locus standi of the plaintiff. Furthermore, in the circumstances of this case I think the plaintiff was entitled to bring this claim.
Accordingly, the counter-claim is dismissed and judgment is entered in favour of the plaintiff in the sum of M7,500 for loss of income and M3,514.68 for the cost of repairs to the vehicle; that is a total of M11,014.68 damages with interest at 11% from the date of judgment and costs in the suit.
Mr Mohau for plaintiff
Mr Mafisa for defendant
