CIV/T/384/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MABAHLAKOANA
MOLETSANE Plaintiff

and

TEBOHO
MOLAPO Defendant

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 4th day of June,
1990.

In this
action the plaintiff is claiming:

1. Payment
   of for thousand Maloti (M4,000.00) damages for unlawful assault;

   
   

2. Payment
   of two thousand Maloti (M2,000.00) for contumelia;

   
   

3. Payment
   of four thousand Maloti (M4,000.00) damages for pain and suffering;

   
   

4. Payment
   of fifteen Maloti (M15.00) medical expenses;

   
   

5. Costs
   of suit;

   
   

6. Further
   and/ or alternative relief.

   
   

2

It is
common cause that on the 3rd May, 1987 the plaintiff and the
defendant fought with each other in the house of the plaintiff.
The
plaintiff sustained certain injuries which led to her admission at
Semonkong Methodist Hospital from the 4th to the 6th May,
1987. On
examination her injuries were found to be a bruised left eye and
oedema. She also complained of pain on the left side
of the chest. On
the 13th May, 1987 she went for a check-up and it was found that the
left eye was still bruised and she had a
contusion on the ribs. Her
medical reports are Exhibit "B" and "C". It is
common cause that she paid M15-00
as medical fees.

It is
common cause that the defendant also sustained some minor injuries
and was also examined by a doctor at Semonkong Methodist
Hospital but
was not admitted. On exami­nation it was found that he had a
minor laceration on the left earlobe about 1cm long
and another 1cm
long laceration on the left flank. His medical report is Exhibit "E".

It is
also common cause that on the 15th May, 1987 the defendant was
charged with assault and causing injuries to the plaintiff.
He
pleaded guilty to the charge and was sentenced to pay a fine of
M40-00 or to undergo imprisonment for a period of four (4) months.

The
plaintiff testified that at about 4.00p.m. or 5.00p.m. on Sunday the
3rd May, 1987 she was in one of her two houses when the
defendant
passed near the house in which she was doing some cooking. She was in
the company of one Mapiloko Molapo who is

3

now late.
Some time after the defendant had passed she went to her other house
to take some mealie meal. When she entered she found
the defendant
sitting on her bed. She asked him what had put him on her bed and
what he wanted there.

Even
before she finished uttering those words the defendant caught hold of
her and threw her on the ground or bed and pulled down
her panty. A
struggle ensued during which the plaintiff tried to resist the
pulling down of her panty and also kicked the defendant.
The
plaintiff says that it was very clear that the defendant wanted to
rape her but she was stronger than him and foiled the attempt.
Seeing
that he was unable to achieve his purpose, the defendant started
kicking the plaintiff and hitting her with fists. She sustained
an
injury on the left eye and on the left flank. The plaintiff was
screaming during the fight. As a result of her screams Mapiloko

Molapo came and tried to separate them but failed because he was an
invalid. The defendant stopped the fight after he had satisfied

himself.

The
plaintiff denied that she started the fight by hitting the defendant
with a pick-axe handle on the left ear and stabbing him
with a knife
on the left flank.

The
defendant's version of the events of that day differs from that of
the plaintiff in very material respects. He testified that
at the
relevant time the plaintiff was his lover. On the morning of the day
in question he accompanied his father to Semonkong
because he was
going back to work. Defendant came back and arrived

4

back at
about 3.00 p.m. At about 5.00 p.m. the plaintiff arrived and invited
him to her house. He told her that he was still putting
the cattle
into the kraal and that he would come as soon as he had finished. The
plaintiff went away but came back at about 6.00
p.m. At that time he
had finished his work. They went to the house of plaintiff. On
arrival there they entered into the house and
the plaintiff locked
the door. She immediately confronted him and asked him where he had
gone during the day. According to their
agreement he had to tell her
before he went anywhere. She also had to do so. He explained that he
had accompanied his father to
Semonkong and that because of the
presence of his father at home he did not have the chance to report
to her in advance.

While he
was explaining the plaintiff took a pick-axe handle and struck him on
the left ear. He fell down and probably fainted and
when he came to
the plaintiff stabbed him with a knife on the left flank and
continued to belabour him with the pick-axe handle.
He managed to
stand up and got hold of the plaintiff and hit her with fists in self
defence. Mapiloko Molapo came and tried to
open the door but found
that it was locked. After some time he managed to force it open and
found them still fighting. He ordered
him to stop and to go to his
home. He complied.

This is
one of those cases where you have the word of the plaintiff against
that of the defendant. The only eye-witness who could
help this Court
is late. Mr. Mohau, counsel for the

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plaintiff,
submitted that self-defence was never raised in the defendant's plea.
I agree that self-defence does not appear in the
plea. The plea was a
bare denial with no indication as to what the defendant's version of
the events of the 3rd May, 1987 was.

Rule 22
(3) of the High Court Rules 1980 requires that the defendant must, in
his plea, admit or deny or confess and avoid all the
material facts
alleged in the declaration or state which of the said facts are not
admitted and to what extent. He must clearly
and concisely state all
material facts on which he relies.

The
defendant's plea does not comply with the requirements of the above
Rule. It seems to me that the self-defence he is now raising
before
this Court is an afterthought. No reason has been given why the
defendant's plea is a bare denial when he had good defence
of
self-defence as he now wants this Court to believe his story. I do
not believe that the attorney who drafted the plea may have
made a
mistake because there is another fact which supports my conviction
that the self-defence raised for the first time during
the trial is
an afterthought.

On the
15th May, 1987 the defendant appeared before Semonkong Local Court
charged with assault and causing injuries to the plaintiff.
He
pleaded guilty and never alleged that he was defending himself. He
elected not to go into the witness box and

tell the
court that he hit her with fists in self-defence. I know that some of
our people who are not familiar with court procedures
often

6

plead
guilty without raising self-defence in cases where they have caused
severe injuries to their victims who were the original
aggressors. In
the present case I do not think that this was due to ignorance of the
court procedures because even when the matter
was handled by his
experienced attorney the issue of self-defence was not raised .

I find it
improbable that the door was locked when the late Mapiloko Molapo
tried to intervene in the fight. There is no evidence
that the lock
or the door was found to be broken after the fight.

The minor
laceration on the left earlobe does not seem to me to be consistent
with a heavy blow with a pick-axe handle. The impression
created in
my mind by the evidence of the defendant was that considerable degree
of force was used to inflict the injury because
the defendant even
fell down from the impact of that blow. If this were true the injury
ought to have been fairly severe and the
earlobe and the area around
it would have been bruised. The doctor who examined the defendant
found no contusion. I have come to
the conclusion that the defendant
cannot be telling the truth that the plaintiff used a pick-axe
handle.

On the
other hand the injuries sustained by the plaintiff are consistent
with severe kicking with boots and hitting with fists.
She testified
that the assault was so severe that after the defendant had left she
was still unable to stand. Her evidence is

7

confirmed
to some extent by the doctor who examined her on the following day
that she could still not walk straight. On the 13th
May, 1987, i.e.
ten days after the assault the bruise on the left eye and the
contusion on the ribs were still there and were seen
by the doctor
who examined her on that day (See Exhibit "C").

An
illicit love affair between a married woman and an unmarried young
man is usually kept as a secret. I find it most improbable
that the
plaintiff, who is a married woman and not a common prostitute, could
jeopardize her marriage by attacking this young man
so fiercely that
the whole village would know her love affair with him. Her husband
would also eventually come to know although
at the relevant time he
was at the mines in the Republic of South Africa. I do not think that
this was the risk the plaintiff would
have taken expecially because
she did not find the defendant with another woman. I did not get the
impression that the plaintiff
was such a foolish woman or a simpleton
who could be expected to do such a thing.

I agree
that there is a very remote possibility that by instituting these
proceedings the plaintiff is actually trying to save her
marriage. I
think the possibility is so remote that it has to be discarded
outright.

My
impression of the plaintiff as a witness was that she was honest and
truthful. She gave her evidence well and answered questions
very
well. The defendant's demeanour did not impress me favourably. He did
not appear to be honest.

8

In my
view the plaintiff has proved her case on a balance of probabilities
and she is entitled to some damages. However I think
she has inflated
her damages very much. The tendency is now common of inflating
damages in order to bring the case within the jurisdiction
of the
High Court. The jurisdiction of the Subordinate Courts has been
increased in such a way that only very serious cases have
to be
brought to this Court (See Subordiante Courts Order, 1988). The
present case is not a serious case at all and could have
been heard
in a Subordinate Court.

The
plaintiff claims M4,000-00 for the unlawful assault and M4,000-00 for
pain and suffering. I shall award her M1,500-00 and take
the two
heads as one. Under Contumelia she has claimed M2,000-00. I shall
award her M500-00 and M15 for medical expenses.

In the
result judgment is granted in favour of plaintiff in the total amount
of M2,015-00 with costs.

J.L
KHEOLA

JUDGE

4th June,
1990.

For
Plaintiff - Mr. Mohau

For
Defendant - Mr. Nathane.