HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.L. Lehohla on the 3rd day of June, 1991.
plaintiff claims against the defendant a sum of M18,000 being damages
alleged to have arisen from an incident which occurred
in Thaba Tseka district where it is claimed that the defendant's
herdboys acting during the course of their employment
plaintiff and broke his left leg.
plaintiff's counsel sought to persuade the Court to the view that the
defendant's plea is a bare denial. The defendant's counsel
that the defendant's plea is a bare denial and buttresses his
contention by submitting that there wouldn't seem to be anything
to the point than for the defendant denying that the herdboys were
his. Reacting to this contention Mr. Ramodibedi for the
submitted' that indeed the defendant was required to do more than
contenting himself with saying the herdboys were not
his. The learned
counsel submitted that it was incumbent upon the defendant to state
what facts he relied on - such as for instance
say perhaps to whom
the herdboys belonged.
not be overlooked that the defendant is a
in that capacity has greater influence than the plaintiff who is a
evidence the plaintiff stated that before the incident the defendant
had issued threats against him pressurising him to remove
livestock from the cattle post where the plaintiff suffered the
plaintiff stated that on the day of the . incident, i.e. 19 March
1986, while he was at his cattle post the herdboys of the
arrived. The plaintiff's dogs attacked these herdboys before the
plaintiff saw them come. When he went to check he saw
herdboys were throwing stones at the dogs. No sooner had the
plaintiff gone to check what was going on than he discovered
defendant's herdboys had made a determined set-to at him pelting him
with stones. It was during this process that he says
he sustained an
injury of the left leg just above the foot joint.
plaintiff told the Court that when he issued summons on 14 Hay 1987
his leg was still in plaster of Paris cast.
plaintiff stated that he is 64 years old. His main occupation before
he sustained the injury that kept him in hospital for four
herding after his stock. He spent a further two months attending
check-ups at Queen Elizabeth II Hospital in Maseru.
He stated that he
also did some ploughing. But because of his condition which rendered
it impossible to live as he used to live
and do things that he used
to do prior to the condition he is now in he had to employ a herdboy
whom he pays M400 per year.
that his life expectancy is 94 years meaning that he hopes to remain
alive 30 more years from the date of the incident.
His counsel made
merit of the fact that despite this position the plaintiff is
claiming only 20 years' support amounting to M8000-00.
and suffering the plaintiff claims M10,000-00. With regard to the
amenities of life that the plaintiff stated he has had
to forego he
mentioned horseriding which causes him cramps since he sustained the
plaintiff handed in evidence Exhibit "A" being a medical
form showing that he suffered compound multiple fracture
with a blunt instrument on the left leg. The medical form also shows
that the degree of disability would be difficult
to assess as of 27th
November 1986 (as reflected on the date stamp) because that would
depend on the healing capacity of the patient.
significant that even as late as 23rd November 1989 according to the
medical form filled at St James Mission Hospital at Mantsonyane
doctor who examined the plaintiff showed that the plaintiff "has
undergone intensive treatment at several hospitals and
part of his leg" and with regard to the disability indicated it
is filled in the form "still difficulties
in walking, has to use
plaintiff also relied in evidence on Exhibit "B" which is a
charge sheet in respect of a charge preferred against
herdboys in the Subordinate Court for the assault meted out by them
on him. The herdboys named in the charge sheet
with the exception of
accused 5 were convicted and sentenced to pay each a fine of M100 or
serve a six months' prison term.
plaintiff contends that the defendant paid the fines imposed on these
herdboys and relies on this factor as a further support
for the fact
that the herdboys belonged to the defendant. The defendant denies
that he paid any fines for the herdboys.
Ramodibedi observed that the plaintiff had been taxed for not
including in his pleadings that he had been
by the defendant to remove his stock from the cattle post in
question. He submitted that pleadings are not meant to
matters which can properly be canvassed in evidence. He accordingly
submitted that the Court should take cognizance of
the fact that the
motive for the assault was that the plaintiff should remove his
cattle from that cattle post. He further sought
to high-light the
fact that under cross-examination it was elicited from the defendant
"the owner would protect what he regards as his grazing pasture
by expelling whomsoever he regards as a competitor for grazing
in the area".
the plaintiff called two witnesses to substantiate the fact that
those who attacked him were the defendant's herdboys.
witness for the plaintiff was a police sergeant Sekantsi who was a
policeman at Marakabei police post. He testified under
oath that he
met the defendant several times during one of which the defendant
told him that the herdboys who had attacked the
plaintiff were his.
This is the witness who testified that the defendant paid for all of
Ramodibedi invited the Court to take special note of the fact that
the defendant admitted that he was on friendly terms with
Sekantsi thus no reason could be advanced why despite these two being
on friendly terms the defendant could be heard to say
the other had
falsely implicated him on this issue.
Ramodibedi submitted that the probability is that P.W.3 was telling
the truth, the denial of which by the defendant should be
contended for the plaintiff that the defendant was evasive. It was
pointed out that at one
sought to shield his untruths behind some deliberate pretence that he
did not know the plaintiff. Mr. Ramodibedi invited
the court to take
account of the fact that the defendant had initially said he did not
know the plaintiff yet when pressed on to
doff his mask of pretence
he owned up that he was not telling the truth when he said he did not
know the plaintiff. It was further
stressed that the defendant
conceded in several other instances that he had not told his lawyer
what appeared to be hew brands
of invention of the evidence that he
proffered as he went along.
Nathane for the defendant submitted that the herdboys were not the
defendant's and that even assuming that they were, it was
they embarked on the conduct complained of during the course and
within the scope of their employment.
submitted that plaintiff bears the onus to show on a balance of
probabilities that the herdboys were the defendant's and that
assaulting the plaintiff they were acting within the scope and course
of their employment.
Nathane pointed out that the plaintiff conceded that he did not know
the earmarks of the defendant's stock even though he claimed
the herdboys employed to look after that stock by the defendant that
he claimed assaulted him.
score Mr. Nathane submitted that the plaintiff merely presumed that
these herdboys belonged to defendant for the plaintiff
had failed to
show what earmarks belonging to the defendant these animals under the
care of the herdboys bore.
stated that the plaintiff conceded that the area where the
defendant's stock are said to have been grazing is not used for
solely belonging to the defendant.
attacked P.W.2's evidence on the ground that even though P.W.2
claimed that the herdboys belonged to the defendant he was not
position to differentiate between animals belonging to the defendant
and those belonging to some other people else which nonetheless
herded by these herdboys.
primary reason for ear-marking stock is not so much for the
determination of whose herdboys look after whose stock as for
identifying to whom such stock belongs in the event of competing
claims for ownership of such stock between the parties.
not been suggested nor am I aware that anybody's claim to such and
such stock is adversely affected.
be applying fallacious logic if when two people dispute over whether
a third party has been employed by me as a driver
for my vehicle that
because the disputant asserting that the third party is my driver has
not said what the registration number
of the vehicle is then it
cannot be true that the third party is my driver. Likewise a herdboy
need not provide proof of his knowledge
of the party's earmarks to
establish his knowledge which is independent of such earmarks that
the stock belongs to that party.
It is important to note that this
Court has herded after stock and at no stage did it have to identify
anybody's herdboy by the
earmarks of the stock belonging to that
Nathane also sought to cast an aura of suspicion around P.W.3's story
that the defendant could at all have been seen paying
the fines in
the public prosecutor's office instead of in the Clerk of Court's
sought to water down the observation that the defendant did not
gainsay the allegation that when approached by P.W.3 during
investigations the defendant
disown these herdboys by pointing out to the court that it should be
borne in mind that the defendant is a chief and has
including among them some of the herdboys' parents and that in saying
the herdboys were his he didn't mean that they
were his herdboys but
that they were his in the sense of being his subjects. This may be a
good argument but it distinctly lacked
support in evidence where it
should have been canvassed fully.
I have no
doubt that the plaintiff who struck me as truthful as against the
defendant who was prevaricating and down right bent
on telling me
untruths has made out his case on a balance of probabilities.
defendant is held liable to him in my judgment.
though it was contended by the plaintiff's counsel that it was not
gainsaid that the plaintiff pays his employee who carries
which were the plaintiff's lot before the assault I feel that M400 is
rather far on the high side. I would reduce the
amount claimed under
that head to M240 per annum for ten years. For pain and suffering
then I would award M7,000 damages. In respect
of future damages based
on the plaintiff's life expectancy the amount awarded is M2,400-00
plus costs and interest calculable from
date of taxation of costs.
Plaintiff: Mr. Ramodibedi
Defendant : Mr. Nathane
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