CIV/T/415/84

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

P.A.
'NOTO Plaintiff

and

THABISO
SEKELEOANE Defendant

JUDGEMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 7th day of April, 1989.

Plaintiff
herein sued defendant for payment of M5,016 as damages or
compensation, interest at the rate of 12% p.a. and costs of
suit.
Defendant intimated intention to defend the action and duly filed his
plea. A pre-trial conference was held after which plaintiff
set down
the matter for hearing. On the date of hearing defendant failed to
show up and judgment by default was entered against
him in the amount
of Ml,518 comprising M1,500 damages and M18 medical expenses, costs
of suit and interest at the rate of 12% per
annum a tempore morae.

By
agreement of the parties the default judgment was subsequently
rescinded and defendant allowed to proceed with his defence of
the
action.

In her
declaration to the summons Plaintiff stated that on 12th February,
1983 she was struck and injured by a bullet negligently
fired by
defendant. As a result plaintiff suffered

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damages
(for which defendant was liable) in the amount of M5,016-00 made up
as follows:

1. M5,000-0C
   for pain and suffering.

   
   

2. M16-00
   for medical expenses.

   
   

Wherefor,
Plaintiff claimed against defendant as aforesaid.

In his
plea defendant denied that Plaintiff was, on 12th February, 1983
struck and injured by a bullet negligently fired by him.
He denied
therefore, that he was liable in damages to Plaintiff in the amount
claimed or at all. Wherefor, defendant prayed that
plaintiff's claim
be dismissed with costs.

In an
attempt to curtail the duration of this trial the parties held a
pre-trial conference in which it was agreed that at the material
time
defendant did fire three (3) shots from his pistol in self-defence
against three (3) attackers. One of the bullets strayed
and hit the
plaintiff who was admittedly not one of the attackers. However,
defendant denied negligence and, therefore, liability
to plaintiff.

In as far
as it is relevant, the evidence heard by the court was that adduced
by the defendant himself who told the court that on
the evening of
12th February, 1983 he left his restaurant at Waggon Wheel in the
Industrial area of Maseru on his way home at Ha
Thamae. He was
travelling in his combi and went via Maseru Location.

When he
approached Jabavu's shop in the location, defendant noticed three (3)
boys standing in the road. Thinking that the boys
were under the
influence of intoxication he stopped the combi. One of the boys
walked past but the other two opened the door

3

of the
combi and started hitting him with fists. He fell' out of the combi.

When he
got up defendant took out his pistol and chased the three (3) boys.
As he passed next to Jabavu's shop he fired two shots
at the boys but
missed. He fired a third shot which hit one of them. Defendant then
went and reported to the police.

At about
8.15p.m. he was informed by the police that there had been shooting
at the home of the Plaintiff. He - denied knowledge
of it and told
the police that at the time he fired shots with his pistol he was in
front of Jababu's shop. Defendant and the police
went to examine the
place where he had been firing shots. They then went to Plaintiff's
house in the vicinity. The police entered
into the house whilst he
remained outside. He did not, therefore, know what transpired inside
the house. He, however,denied that
Plaintiff was struck and injured
by any of the shots fired by him on the evening in question.

Defendant's
testimony that when he was next to Jabavu's shop he was attacked by
three boys was corroborated by P.W.3, David Jabavu,
the owner of the
shop. According to him P.W.3 was, at the material time, standing
outside his shop when he noticed three (3) "Tsotsies",
one
of whom was Zakaria, fighting the defendant in the street. He went to
intervene by telling the "Tsotsies'to stop it but
all in vain.
He confirmed that eventually Plaintiff took out a firearm and chased
the "Tsotsies" who were then running
away. As he chased
them in the street defendant fired shots at the "Tsotsies"
one of whom was struck and injured by a
bullet fired by him
(defendant)..

4

In her
testimony plaintiff told the court that she was a nurse by
profession. On the evening in question, 12th February, 1983, she
and
her husband were preparing to attend a dinner party at Lesotho Sun
Hotel, Between 6.30 p.m. and 7.00 p.m. she was standing
at the
entrance of her kitchen giving instructions to her gardner when she
heard gun reports in the street. She then noticed that
she had been
injured and blood was running down her leg. She did not feel pain at
the time but on examining her leg plaintiff found
that there was a
wound which penetrated through the flesh of her thigh just above the
knee. She looked around and noticed a bullet
on the floor next to the
zink in the kitchen. It appeared the bullet had hit her on the thigh,
penetra­ted through the flesh
and hit the zinc before dropping
down on the floor.

Plaintiff's
evidence was in all material respects corroborated by her husband
David 'Noto who testified as P.W.2 in this trial.
According to him
P.W.2 was collecting the ignition keys of his car from the bedroom
when he heard gun reports and the noise of
something hitting the zinc
in the kitchen. He pro­ceeded to the kitchen to find out what was
happening. He found Plaintiff
standing at the entrance of the
kitchen. She was clearly injured and bleeding from the thigh. . He
rushed her to Queen Elizabeth
II hospital where she was medically
treated as an out­patient by a certain DR. Masemene who, however,
did not testify in this
trial.

Although
Plaintiff believed that P.W.2 had paid M2-00 for the medical
treatment at Queen Elizabeth II hospital the latter was not
certain
that the M2 was in fact paid, in any event neither

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plaintiff
nor P.W.2 could produce any receipt as proof of payment of the M2.00.

On the
following day Plaintiff's wound was still bleeding and she had to go
to Dr. Patel who on two occasions gave her medical treatment
for
which she paid a total of M16-00. As proof thereof plaintiff handed
in Exh "A" - a receipt issued on 22nd March,
1983 by Dr.
Patel who in turn referred her to Dr. Siddique of Queen Elizabeth II
hospital. To the best recollection of both Plaintiff
and P.W.2 no
fees were charged for the examination carried out by Dr. Siddique who
was not even called as a witness in this trial.

According
to her, plaintiff suffered continuous pains for about 3 weeks as a
result of the injury she had sustained on 12th February,
1983.
Thereafter she had only periodical pains.

It is
significant that in his evidence defendant denied that Plaintiff was
shot and injured by a bullet negligently fired by him.
There is,
however, no evidence that on the evening in question any other person
besides the defendant fired shots in the vicinity
of plaintiff's
house. That being so, it seems to me the only logical inference to be
drawn is that plaintiff was struck and injured
by one of the bullets
admittedly fired by the defendant in the vicinity of her house.
Indeed, this was conceded by the parties
in the minutes of pre-trial
conference in which defendant was legally represented by Mr. Mphalane
then of the firm of Attorneys
styled Cooper and Sons, Co.

It is
perhaps convenient to mention at this juncture that it was contended
in argument that in his power of Attorney

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defendant
had authorised Stefan Carl Buys and/or Louis Johannes Pienaar to
represent him in this case. He had authorised neither
Mphalane nor
the firm of Attorneys styled Cooper and Sons, Co. to do so. Defendant
could not, therefore, be bound by the admissions
made in the minutes
of pre-trial conference by either Mphalane or the firm styled Cooper
and Sons, Go.

It is not
really disputed, however, that Messrs Buys. Pienaar and Mphalane were
all member of the firm styled Cooper and Sons, Co.
which in his
application for the rescision of judgment defendant/applicant clearly
referred to as his attorneys -vide para. 3,
4 and 7 of the founding
affidavit. Indeed ad para 5 of his Replying Affidavit
defendant/applicant specifically referred to Mr.
Mphalane of Cooper
and Sons, Co. as his attorney.

The
contention which defendant now raises in argument viz. that he had
authorised neither Mphalane nor the firm of Cooper and Sons,
Co. to
represent him in the main action was not pleaded. It is, therefore,
an attempt to extend the plea he had filed with the
Registrar of this
court. This, in my view the defendant/applicant cannot be permitted
to do. The principle is that he must stand
or fall by his pleadings.

The
important question for the decision in this matter is whether or not
in firing shots, one of which struck and injured the Plaintiff,
the
defendant acted negligently. On one hand plaintiff says he was. On
the other hand defendant says he fired the shots in self-defence

against his attackers of whom Plaintiff was admittedly not one. He
contends, therefore, that he was not negligent.

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In his
work Principles of South African Law (1956 Ed.) at p.519 by Wille,
the learned author states that in the absence of evidence
that it was
due to inevitable accident (i.e. vis divina "Act of God" or
wild animal) the injury must have been due to
the act or omission of
some human being, in other words, some person must have been
negligent.

In the
instant case it cannot, even by any stretch of imagination, be held
that plaintiff's injury was the result of vis divina
or wild animal.
I have found on evidence that Plaintiff sustained injury as a result
of the act of defendant who (on the authority
of what Wills said op
.cit) must be held negligent. It follows, therefore, that the
question I have earlier posted viz. whether
or not in firing shots,
one of which struck and injured the plaintiff defendant acted
negligently must be answered in the affirmative.
That being so, it
must be accepted that defendant is liable in damages to plaintiff.

As it has
been pointed out earlier in this judgment, the quantum was assessed
in the amount of M1,500 under the heading of general
damages. Regard
being had to the fact that the bullet fired by defendant only
penetrated plaintiff's flesh causing an injury for
which she was not
even hospitalised, I am of the opinion that the claim of M5,000 for
pain and suffering was crossly inflated.
Consequently I have no
quarrel with the assessment of Ml,500 made by my brother Levy,
A.J.,as he then was.

As
regards the award of M18 made by the learned Judge for medical
expenses it is worth noting that plaintiff had claimed only M16
which
she was able to support by the receipt issued on 22nd March, 1983 by
Dr. Patel. The M2 allegedly paid for

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plaintiff's
treatment by Dr. Masemene at Queen Elizabeth II hospital could not be
supported by any receipt. That being so, I find
no justification for
awarding Plaintiff the M2-00 as damages for medical expenses. I shall
accordingly allow damages for medical
expenses in the amount of only
M16-00 which plaintiff had in fact claimed and was able to
substantiate with the receipt issued
by Dr. Patel.

In the
result, judgment is entered against the defendant in the amount of
M1,516 as damages, interest at the rate of 12% a tempore
morae and
costs of suit.

B.K.
MOLAI.

JUDGE.

7th
April, 1989.

For
Plaintiff : Mr. Moiloa

For
Defendant : Mr. Nthethe.