C. of A.
(CIV) 1/88

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

'MAMOLIKE
NKHABU Appellant

v

SEPHIRI
SEKOELAME and others Respondent

HELD-AT-MASERU

Coram:

SCHUTZ P.

PLEWMAN
J.A.

ACKERMANN
J.A.

JUDGMENT

Schutz P.

The
appellant, 'Mamolike Nkhabu, sued the four respondents Sephiri
Sekoeleme, Motake Makhele, Lengana Thoahlane and Palo Mafelehetse
in
the High Court for the sum of M42,000 being maintenance lost to her
as a result of the death of her husband. His death was said
to have
been caused by an unlawful assault upon him by the defendants.

At the
end of the plaintiff's case absolution from the instance was ordered
against her by Allen J. The learned Judge stated that
in order to
succeed the plaintiff had to show on a balance of probabilities

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that the
defendants' actions caused the death of the deceased. He further
stated that evidence of an assault causing unspecified
injuries to
the deceased was insufficient. There ought to have been medical
evidence, he further stated.

The
plaintiff naturally bore the onus of proving the causal link between
the assault and her husband's death. But the test to be
applied at
the close of the plaintiff's case, where the defendants' case has not
been closed,is much less stringent than where
the cases of both
parties have been closed. The appropriate test is stated by De
Villiers J.P. as follows in Gascoyne v Paul and
Hunter 1917 TPD 170
at 173:

"At the close of the case for the plaintiff, therefore, the
question which arises for the consideration of the Court is, is
there
evidence upon which a reasonable man might find for the plaintiff?"

When the
defendant has also closed his case the question is,

"Is there such evidence upon which the Court ought to give
judgmentin favour of the plaintiff?" (my emphasis in both

instances).

As was
further stated by Pittman J. in Myburgh v Kelly 1942 EDL 202 at 206:

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"When absolution is asked for, as here at the the close of
plaintiff's case, the magistrate must bring to bear upon the evidence

not his own but the judgment of the reasonable man. Renouncing for
the time being any tendency to exercise a judgment of his own,
he is
bound to speculate on the conclusion at which the reasonable man of
his conception not should, but might, or could, arrive".

When
absolution has been granted in the circumstance in which it has been
granted in this case, and the appellate court considers
that this
order should be set aside, little should usually be said, as the
appellate court should seek to avoid anticipating the
decision of the
trial court. But I think it necessary to deal with some of the
arguments raised.

The evidence that has been led for the plaintiff can be summarized as
follows: A stone thrown by a defendant struck the deceased's

forehead, and he fell down, never to rise again. Another defendant
struck him on the head with the sharp end of an axe. The other
two
belaboured the deceased over the body with sticks. He was rendered
unconscious and he never regained consciousness. When taken
to his
village on an ox cart he sustained no injuries. He was then taken to
hospital where, six days later, he died. The evidence
as to the
nature of the wounds was very skimpy. He had wounds, on the forehead

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(caused
by the stonethrower) and on the back of his head (inflicted by the
axewielder). Or his body he had weals caused by sticks.

In this
Court the defendants' argument was that the skimpy evidence as to
wounds and the absence of medical evidence justified the
absolution
order. It was contended that there were possible causes of death
other than the assault, such as an accident involving
the vehicle
taking the deceased from the village to the hospital, professional
negligence at the hospital, death by natural causes
and so on. There
is, at this stage, not a tittle of evidence to support such
speculations, as they appear to me to be.

Take the
case of the trip to the hospital. Despite the deplorable carnage on
the roads, the great majority of trips do end safely.
Similarly
hospitals usually heal rather than harm. In my view a reasonable man
might, and perhaps even ought to reject such speculations,
when
presented with an evident cause of death such as is afforded by the
assault in this case. If that is so, the decision below
is wrong.
There can be no end to speculation as to possible but inherently
unlikely causes of death. If the reasonable man postulated
is allowed
to indulge himself one might even credit him with supposing that the
disaster that once befel a man in Athens of antiquity,
being struck
down

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by a
meteorite out of the sky, might have befallen the deceased also.

Nor do I
think that in a civil case it is always necessary to have medical
evidence. One can readily imagine cases in which a lay
person can
give quite satisfactory evidence of a cause of death, for instance
where he sees a man shot, and die five minutes later.
But I would
issue a word of warning to practitioners. Medical evidence should be
called if an appropriate admission cannot be obtained.
This case has
been slackly presented, and even though the appellant in this case
escapes an absolution finding, others relying
on slack evidence may
not be so lucky. In this connection the further an assault (to take
an example) is removed in time from the
death, the more difficult it
becomes to avoid absolution, if proper medical evidence is not led.

In the
result the appeal is upheld with costs. The following order is
substituted for that a quo:

"The application for absolution is dismissed, and all the costs
resulting from that application are awarded against the four

defendants, jointly and severally."

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Signed: ...........................

W. P. SCHUTZ

PRESIDENT

I agree Signed: C. PLEWMAN

JUDGE OF APPEAL

I agree Signed:

L. W. H. ACKERMANN

JUDGE OF APPEAL

Delivered
at MASERU this 27th of JULY, 1988.

For the
appellant. : Mr. M.M. Ramodibedi

For the
respondent : Mr. K.K. Mohau