CIV/T/30/92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

CHIEF
NARE MOLAPO PLAINTIFF

V

SETLALEBATHO
MOLAPO DEFENDANT

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 15th
day of March, 1993.

For the
Plaintiff : Mr. S. Malebanye

For the
Defendant :

JUDGMENT

Cases
referred to:

(I) Matekane v Attorney-General CIV/T/465/86.

The
plaintiff's claim is for damages. Judgment in default of appearance
was entered for the plaintiff and. the issue before me is
the aspect
of quantum.

The
declaration reads in part as follows:

"3. On or about 16th June, 1991 at or near Leoana-Letsoana
Pela-Tsoeu in the Leribe

2

district Defendant wrongfully, unlawfully and intentionally set fire
to Plaintiff's two houses as a result of which Plaintiff's
said
houses and some property therein were extensively damaged.

4. At
   the time Defendant set the fire aforesaid Plaintiff, his wife and
   three minor children were sleeping in these two houses respectively.

   
   

4. As a
   result of the aforesaid setting of fire Plaintiff feared for his
   life and safety and suffered a nervous shock which Defendant

   reasonably foresaw that his aforesaid acts would result in.

   
   

4. As a
   result of Defendant's wrongful act Plaintiff has suffered damages
   all in all in the sum of Thirty-Two Thousand Four Hundred
   and
   Fifty-Four Maloti (M32,454-00) calculated as follows:-

   
   

1. Damage
   to Two Houses = M13,454-00

   
   

2. Damages
   to Property therein = M 4,000-00

   
   

3. Nervous
   Shock = M15,000-00

   
   

3

TOTAL = M32,454-00

for which
Defendant is liable."

The
plaintiff, is a Chief, he is aged 82 years, he testified that the
defendant is his fourth son. He was apparently experiencing
some
family difficulties with the defendant at the relevant time. The
latter had taken away some of his animals. The plaintiff
arranged a
family meeting to discuss the matter. On the 16th June, 1991,
however, about midnight, the defendant set fire to the
plaintiff's
two houses. At the time the plaintiff was sleeping in the main house
with his wife, aged 56 years. and three minor
children aged six to
sixteen years.

There
were three doors in the main house. The plaintiff was awake at the
time. When the house went on fire, "I was frightened",
he
said. He was the first to get out of the house. Then came the
children and then his wife. "None of the children were burnt",

he said and his wife "was nearly burnt". He made no
reference to any burns suffered by him. and as he was the first out

of the house, I presume he did not suffer any burns.

The
plaintiff testified that others were extinguishing the fires. He "was
heartbroken": "I felt I

4

was about
to die", he said. He testified that he was, over a year later,
"still undergoing treatment for my chest",
but he did not
stipulate the nature of such treatment or adduce any medical evidence
thereof.

The
plaintiff testified that the main house was valued at M13,454 and the
other house at M8,900, that is, a total of M22,3544. He
testified
that the main house was built of concrete blocks with a corrugated
iron roof. containing five rooms. The smaller house
was a rondavel of
one room, built of stones with red bricks on top and a thatched roof.

When it
was pointed out to him that he had claimed M13,454 for both houses,
he stated that he was "probably confused"
at the time, as
he was "still confused": he had obtained the figure of
M13,454 from a builder who wrote the figure on
a piece of paper,
which was at home. The Court granted an adjournment to enable the
plaintiff to produce documentary evidence.

At the
adjourned hearing, the plaintiff produced a document, which is
apparently a photostatic copy of the manuscript original.
Someone
wrote (apparently in a different handwriting) "30-11-1989"
at the top of the document. Further, the document
bears the
plaintiff's own

5

date-stamp
(as a Chief) for "30-11-1989". The document is entitled,
"Plan of a House of the size of 10.60 x 8.60
x 7.40". It
contains a list of building materials, all adding up in price to a
total of M22,182-00. The original, or perhaps
a photocopy, was signed
by one "Matli Lesoetsa".

The
plaintiff tendered the document as an invoice prepared by "the
person who built house for me". The original document
contained
no letterhead whatever. There is nothing to indicate that Matli
Lesoetsa had any degree of proficiency as a builder,
such that the
Court could place any reliance on the estimate. There is nothing to
indicate that the document was ever more than
an estimate, that is,
there is nothing to indicate that the plaintiff ever paid any of the
amounts contained in the document. I
had expected to have sight of an
estimate for the future construction of the houses damaged in the
fire: instead of that the plaintiff
produced an apparent estimate for
a construction in 1989. Furthermore, while he claimed M13,454 for two
houses in his declaration,
he then produced a document for one house,
in the total of M22,182, which amount, I observe, approximates to his
oral evidence
of the value of two houses, namely M13,454, plus
M8,900. that is, M22,354. Further again, the plaintiff testified that
the main
house was constructed of concrete

6

blocks
with a corrugated iron roof. The 1989 document itemises "17,000
small bricks" at M5,100 and "Ceiling tiles
and planks"
at M6,360. There is no mention of any concrete blocks or corrugated
iron.

There is
a well-used maxim that a litigant "cannot throw damages at the
head of the Court". Damages must be proved. The
plaintiff cannot
claim M13,454 damages and then, without any notice to the defendant,
tender evidence, if one can call it such,
of a grossly inflated
amount. The exhibit before the Court is of no probative value. I
proceed therefore solely on the basis that
the sum of M13,454 has
raised no objection from the defendant and would seem to be a
reasonable amount for two village houses and
I do not propose to
award the plaintiff any amount beyond that figure.

When it
comes to property, it will be seen that the plaintiff's claim is in
the amount of M4,000. He gave evidence of purchases
of furniture
(without any invoices) totalling some M5,684. That included items,
however, valued at M1,700 some 40 years ago and
M2,300 some 25 years
ago. The furniture was then extremely old and perhaps bordering on
dilapidation. Doing the best I can, I would
estimate its value at no
more than one-third of cost price, that is, at M1,895.

7

When it
comes to the claim for nervous shock. I agree with Mr. Malebanye that
the particular damage was clearly forseeable by the
defendant. While
the plaintiff was understandably mainly affected by a personal
apprehension of danger, he must to some extent
have also feared for
the safety of his wife and children. Nonetheless the shock must have
been short lived: he was awake at the
time, and he was the first to
get out of the house. Neither he nor his family suffered any burns.

The
plaintiff adduced no medical evidence whatever of any condition
resulting from the fire. Despite his age. he seemed to be extremely

fit and displayed remarkable mental alertness and control in the
witness box. In brief, I consider that he greatly exaggerated
both
his claim for damages and his evidence of any lasting effect of the
initial shock suffered. I do not consider e.g. that the
award should
be of the same quantum as that in Mateka v Attorney-General (1), to
which Mr. Malebanye refers. Doing the best I can.
I would award
M2,000 under this head.

The total
award under the various heads shall then be as follows:

Damage to
the two Houses : M13,454

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Damage to Property Therein: M 1,895

Nervous Shock : M 2,000

TOTAL : M17,349

I
accordingly give judgment to the plaintiff in the total amount of
M17,349 with costs.

Delivered
at Maseru this 15th Day of March, 1993.

B.P.
CULLINAN

CHIEF
JUSTICE