CIV/T/92/85
IN THE HIGH COURT OF LESOTHO
In the matter of:
BREVETON SOBANTU MZOZOYANA Plaintiff
v
MAHLALELA PHALATSANE Defendant
JUDGMENT
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 21st day of October 1988
The plaintiff brought this action against the defendant for damages for the wrongful deprivation of 31 goats and 6 sheep in September 1983.
Both parties are Xhosa. The plaintiff is a retired agricultural officer from Matatiele District in Transkei. The defendant is a resident of Melikane in Qacha's Nek District. He was not served with the summons until 6 January 1987 and he has not entered an appearance. The matter was before the Court ex parte for formal proof of claim.
The animals were alleged to have been removed by the defendant and other people from the cattle post at Makomorong in Matatiele District of Transkei and brought into Lesotho at Qacha's Nek. With regard to the jurisdiction of this Court Mr Ngakane for the plaintiff quoted from
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Herbstein & Van Winsen (3rd Edn) pages 32-33, to the effect that this Court can exercise jurisdiction over any incola domiciled or resident within the area of the Court's jurisdiction. In such a case the Court will exercise jurisdiction on this ground alone and it does not matter where the cause of action arose or whether the plaintiff is a peregrinus. That being the case I allowed the plaintiff to proceed with his claim.
The plaintiff stated that he owned cattle, horses, sheep and goats. In September. 1983 his stock was kept at Makomorong cattle post in Matatiele. His herdboy reported that some animals- were missing and the plaintiff went to the post and discovered that 47 goats and six sheep were missing. With the assistance of the police at Qacha's Nek he recovered 16 goats and some people were arrested. There was a criminal case before the magistrate at Qacha's Nek which resulted in acquittals. According to the plaintiff the trial magistrate was not satisfied with the identification of the recovered animals. The plaintiff then filed this action for damages for the loss of the animals in February 1985.
Such suits are usually brought for the recovery of the property removed or converted with damages as an alternative. In this instance there was no prayer for the property to be returned. By the time this suit was filed, nearly one and a half years after the incident, it might have been difficult to recover the same animals. Now, five years after the incident, it would probably not be possible to do so.
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The fact that the defendant was served and has not entered an appearance indicates that he did not intend to contest this claim and so liability can be taken to be admitted.
With regard to the quantum of damages, the plaintiff claimed a total of M.6323.82 as special damages only. No general damages were claimed. He stated that, from his experience as an agricultural officer and as a private farmer, the average market value in Transkei at that time of goats was R35 and of sheep was R40. Of the six sheep five were ewes which,in the two seasons for which this claim was made,would be expected to pro- duce on average a total of ten lambs. There were twenty females among the 31 goats taken and in two seasons they would be expected to produce an average of 40 kids.
Thus a total of 16 sheep (including progeny) at R40 each would be R.640. A total of 71 goats (including progeny) at R.35 each would be R.2485.
The plaintiff claimed R3 for wool from each of 16 sheep for two seasons, but I consider that only the wool from the six adult sheep should be taken into account. That would produce (6x3x2) R.36,
Similarly, I would allow the mohair claim with regard only to the 31 adult goats at R.4 per goat for two seasons which comes to (31x4x2) R.248. The remaining claim was for the loss of two bells
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attached to two of the animals taken away. The plaintiff claimed R.12 for each bell, but he was unable to produce receipts and they were some years old at the time. I shall allow a total of R.15 for both bells.
In the currency of this Court the total amount allowed comes to M.3424, which is slightly over a half of what was originally claimed by the plaintiff. With regard to the date for interest on this amount I can find no evidence that the defendant was in any way to blame for the very long delay in having this matter heard and disposed of.
Accordingly, judgment is entered in favour of the plaintiff in the sum of M.3424 special damages with interest at 11% from the date of this judgment, together with costs in the suit.
P. A. P. J. ALLEN
JUDGE
21 October 1988
Mr Ngakane for plaintiff ex parte
