C OF A
(CIV) NO.22\96

C OF A
(CIV) NO 20\96

C OF A
(CIV) NO 21\96

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between :

PAUL
SEBETE MOHLABA Appellant

TS'EPE
TS'EPE Appellant

TS'OLO
JOSEPH PHIRI Appellant

and

COMMANDER
OF THE ROYAL LESOTHO DEFENCE

FORCE
1st Respondent .

THE
ATTORNEY GENERAL 2nd Respondent

HELD AT
MASERU

CORAM:

STEYN,
A.P.

LEON,
J.A.

VAN DEN
HEEVER, A.J.A.

For
Appellants : Mr Sello

For
Respondents: Mr Mohapi

JUDGMENT

LEON,
J.A.

It will
be convenient to refer to the parties as the plaintiffs and the
defendants as the respondents. Three actions, based upon
similar, but
not identical facts, were heard together.

In the
first action the plaintiff MOHLABA claimed the sum of M250,000
against the defendants as damages in consequence

2

of his
unlawful detention in the Maseru Maximum Security Prison for a period
of one year and assaults upon him by members of the
Royal Lesotho
Defence Force during his detention. This plaintiff was awarded the
sum of M35,000.

In the
second action the plaintiff PHIRI claimed the sum of M120,000 against
the defendants as damages in consequence of his unlawful
detention
for 23 days from the 27th November 1990 at the Maseru Maximum
Security Prison and for assaults committed upon him by
members of the
Royal Lesotho Defence Force during the period of his detention. He
was awarded the sum of M8,000. ,

In the
case of the plaintiff TS'EPE he claimed damages in the sum of
M120,000 in respect of his unlawful detention in the same prison
for
a period of six months and for assaults comitted upon him by members
of the same defence force while he was in detention. In
his case the
trial Court awarded him damages in the sum of M20,000.

In their
pleas the defendants denied liability but during each of the trials
liability was admitted on behalf of the defendants
leaving only the
question of the quantum of damages in issue.

Each of
the plaintiffs has appealed against the award of damages and there is
no cross-appeal by the defendants.

In the
case of the plaintiff MOHLABA it is claimed in

3

the
Notice of Appeal that the Court a quo erred in awarding him damages
for pain, suffering and contumelia leaving him without redress
for
his unlawful arrest and detention (see page 149).

In
TS'EPE's case the Notice of Appeal alleges that the quantum of
damages awarded by the Court a quo is grossly inadequate thus

entitling the Court of Appeal to interfere.

In
PHIRI's case the same ground of appeal is taken as in TS'EPE's case
save that it is amplified by the further point that the trial
Court
erroneously took into account, to the prejudice of this plaintiff,
that he was only a private in the army.

Before I
refer briefly to the evidence which was led in each case there are
certain preliminary observations which I wish to make.
Firstly, there
is a striking and sordid similarity in the cases both in regard to
the manner of the detention; the conditions under
which each of the
plaintiffs was detained, the manner of the assaults (although not
identical in each case), the food that was
supplied, and the toilet
and ablution facilities that were available if they can be dignified
by such a description. Secondly,
the background to these cases is
that certain moneys had been misappropriated at the Labour
Construction Unit. The plaintiffs were
suspected of being involved in
this offence. They were detained for different periods, taken to what
the learned Judge a quo referred
to as the "torture chamber"
where they were viciously assaulted in an

4

attempt
to force them to admit that they ware involved in the offence. The
attempts failed, and later, as a result of a habeas corpus

application the assaults ceased, they were allowed food from their
relatives and ultimately released. The last preliminary matter
to
which I wish to refer is the circumstance that no medical evidence
was led. The reason for this appears from page 260 of the
Record
where the plaintiffs' Counsel stated that the medical reports were
not legible but that he would make an effort to have
them typed in
the hope that they would assist the Court. In the event no medical
evidence was adduced. Nor did the defendants lead
any evidence.

The trial
Judge was left only with the evidence of the plaintiffs and she had
to do the best she could with the evidential material
which was
available. In her judgment she referred to the matters that were
common to each of the plaintiffs i.e. the cell, the
bedding, the
toilet and ablution facilities and then dealt in each case with the
manner in which each of them had been assaulted.
She also took into
account the length of time in which each had been detained following
an unreported decision of this Court in
NKAU MATETE vs THE MINISTER
IN CHARGE OF POLICE AND 2 OTHERS C of A (CIV) No.24 of 1987
(unreported) holding that the greater the
number of days the
plaintiff lost his freedom the greater the amount of damages that
should be awarded. I pause to interpolate
that in each of these cases
a globular amount of general damages was claimed. Nc distinction was
drawn between the arrest, the
detention and the assaults. The sums
claimed were alleged to be in respect of all

5

of these
matters nor did the defendants request any further particulars in
respect of the sums claimed. In the course of her judgment
regarding
the plaintiff PHIRI the learned Judge observed that :

"the injury to his dignity is not the same as the injury caused
on the dignity of the Captain of the Army" (The plaintiff

MOHLABA was a captain in the army).

I shall
presently describe the nature and extent of the assaults perpetrated
on the plaintiffs. What is common to each of the three
cases is the
cell in which each was housed, the lack of proper bedding or toilet
facilities and the lack of proper ablution facilities.
The cell was
described by one of the plaintiffs as being about the size of a
toilet. It had extremely limited ventilation. It was
dark by day as
well as by night. There was no lighting and the solitary window which
could not open was painted dark green. There
was some kind of chamber
pot in the cell but no toilet paper although the latter was later
provided after a habeas corpus application.
The plaintiffs slept on a
thin rubber mat which was about the size of a car mat. Two worn
blankets were provided but no pillow.
To add insult to injury the
plaintiffs were placed in these cells naked, although as the learned
Judge found it is probable that
when their families were allowed to
visit them then they were wearing clothes. Each morning the
plaintiffs were requested to walk
300-350 metres to wash out their
chamber pots and to wash themselves. But there was neither soap nor
hot water. The food given
to them was unfit for human consumption,
one of the plaintiffs vomited when trying to eat it while the others
were unable to do
so. All

6

these
matters were not called into question in cross-examination which was
in each case quite perfunctory . The only real matter
raised was that
there was a degree or exaggeration in the evidence of each of the
plaintiffs in that, vicious as, the assaults
undoubtedly were, they
were not so vicious as to prevent the plaintiffs from walking 300-350
metres the following morning to empty
the chamber pots and attempt to
wash.

The
assaults upon each of the plaintiffs are described in great detail in
the judgment. I shall not repeat that exercise but shall
refer
briefly to the salient features thereof.

The
plaintiff MOHLABA was 44 years old when he gave evidence. He was then
a farmer but had been a Captain. He was arrested on 2\5\90
and
detained for a year. He was taken to cell 26 which was dark,
estremely small with virtually no ventilation. He was stripped
naked.
There was a ladies chamber pot in the cell and no water. He spent the
first day in the cell until a dish was pushed inside
his cell. It
contained a kind of "pap" which caused him to vomit. The
next day he was ordered to wash. He went to a pump
where the water
was cold and there was no towel. All he could do was to wash his face
and dry it with one of his blankets. He returned
to his cell and was
given some so-called porridge which he was unable to eat. After about
a month and as a result of a Court order
he was allowed cold food
from outside. He described his life in the cell as "a life for
animals".

7

On the
night of 10th May his cell was opened, his hands handcuffed behind
him, a blanket placed over his head and he was taken to
what the
learned Judge referred to as the "torture chamber". He was
asked about stealing the Government money which he
denied. A rubber
tube was twisted around his neck which suffocated him. If he wanted
to talk he was ordered to stamp his feet which
he did in order to get
some air. But he refused to confess. They held his feet and he fell
to the ground hitting the cement floor
with his forehead. They
suffocated him with the tube again and he felt that he was dying. He
tried to hit the floor but he did
so with his nails as he was lying
down. He lost a toe-nail. One of his tormentors suggested the use of
electricity. The plaintiff
became so frightened that he urinated all
over himself. He was then made to kneel on crushed stones. Both his
nose and the place
where his toe-nail had been, began to bleed. His
testicles were twisted. Because of the pain he was carried back to
his cell.

During
this episode he was assaulted three times in the same fashion with
intervals of 15 minutes between each incident. After he
had been
returned to the cell one THETSANE visited him and saw blood all over
the cell and said that he would report the matter
to his superiors.
He was still numb on the left side of his face. He was visited by
Doctors Choy, Ankra and Yenke. An ointment
was applied and his wounds
were bandaged. He was not allowed any exercise nor did he have a
single bath during his period of detention.

8

About a
week later he was taken back to the torture chamber but it was then
observed that he was bandaged and he told them that
he had reported
the assaults to Mr Monyoli. He was then returned to his cell.

An
application was made for his release which was granted in June but as
he stepped out of the prison gates he was re-arrested and
spent a
further 10\ll months in gaol before his final release. He was not
assaulted again but he had to endure the same miserable
and
depressing conditions of solitary confinement. If he wanted water he
had to bang on hie cell door and walk to the pump. Blotches
appeared
all over his body. He still suffers from chronic headaches. His other
pains lasted about 6 months after his release. He
had a week without
food.

As to the
number of assaults his evidence is not entirely clear. In his
evidence-in-chief he stated that he was assaulted three
times on the
first occasion with 15 minute intervals yet right at the end of the
cross-conversation he suggested that he was assaulted
daily for 7
days.

The point
made in the notice of appeal that the learned Judge ignored the
arrest and the detention of this plaintiff does not seem
to me to be
borne out by the judgment. I shall return later to the question of
damages.

The
plaintiff TS'EPE: This plaintiff was 31 years of age when he
testified. At the time of his arrest and detention

9

at the
Maseru Maximum Security Prison he was a private. He was detained for
six months. The circumstances and manner of his detention
were
substantially the same as in the case of the previous plaintiff. He
was stripped naked, placed in a similar sized cell with
no light,
with a plastic toilet bucket and a thin rubber mat to sleep on, with
no pillow, and with two worn blankets. He described
the darkness as
terrible.

On the
day of his detention he was handcuffed from behind, a blanket was
tied around his neck and he felt that he was being strangled.
He was
taken to the torture chamber and suffocated with a tube. He was also
asked about the stolen money and told to stamp his
feet if he wished
to speak. He did so but claimed that he knew nothing about the money.
He was aasaulted in that fashion about
three times that day. He was
also assaulted with a blunt iron object on his right foot. He could
not walk and was carried back
to his cell.

On the
next day he was assaulted in like manner but in addition his
testicles were pulled about 5 times. Something cut him, he bled
and
was carried back to his cell.

The third
day he was assaulted yet again. But on this occasion he was thrown on
the floor, one stepped on his neck while the others
kicked him behind
with booted feet. He was placed on crushed stones and then carried
back to his cell.

The
assaults continued thereafter. He was not able to

10

count how
many but they only stopped as a result of a Court order. But the bad
uneatable food continued. Once a week he received
food from his
family.

He
developed a rash all over his body. A doctor saw him and said that
this was caused by the suffocation and lack of ventilation.
Toilet
paper was provided but only occasionally.

In the
habeas corpus application brought on his behalf he was examined by Mr
Justice Kheola who found that he had sustained injuries
and who
referred to them in his Judgment.

At the
end of his evidence-in-chief this plaintiff's claim was amended to
M150,000, In cross-examination he said that, despite his
assaults of
the night before when he was unable to walk, he was able to walk on
the following morning albeit very slowly to rinse
out his mouth at
the pump and throw water over his face. The luxury of soap was denied
to him. He was obliged to walk because he
had to empty the toilet
bucket.

The
Plaintiff PHIRI was 36 years old when he testified. When he was first
detained he was subjected to the humiliation of having
his anus
searched. He was detained at the same time as the plaintiff TS'EPE
and incarcerated in similar squalid and degrading conditions.
His
tormentors came to his cell handcuffed him behind his back, took him
to another room and

11

began to
beat him with what felt like a sock filed with soil. He was assaulted
on the ribs. He fell on the cement floor, his forehead
hitting
crushed stones. He bled but was assaulted all over his body, then
covered with a blanket and suffocated with a rubber tube.
His
torturers wanted him to be an accomplice witness. His testicles were
twisted.

He was
thrown on the floor and passed out.

He was
assaulted every day for about a week, the same methods being used.
The assaults stopped as a result of an application being
brought by
his wife in the High Court. When he appeared before Mr Justice Kheola
in a habeas corpus application he was limping
and the learned Judge
observed wounds on both his wrists.

He was
seen by Dr Makenete in prison. When the learned Judge observed that
the injury to this plaintiff who was a private was not
the same as
the indignity suffered by a captain I think she was wrong.
Humiliation, indignity, pain and suffering can be suffered
in equal
measure by any human being. Shylock's anguished plea in the Merchant
of Venice bears eloquent testimony to that.

When I
read this record I was. appalled that human beings could be treated
in this Kingdom in such a barbaric fashion. The conduct
of the
offenders warrants the strictest censure for it is reminiscent of
some of the excesses of the KGB, the Gestapo as well as
the treatment
meted out to the late

12

Steve
Biko.

The
question is whether this Court can interfere with the quantum of
damages awarded.

There are
no scales by which pain and suffering can be arithmetically measured
in money. I am also fully aware of the fact that
the trial Court had
a discretion as to the amount of general damages which should be
awarded. One does not lightly interfere with
such discretion. Apart
from the case of the plaintiff PHIRI the learned Judge has not
misdirected herself in any way.

However
giving this matter the best attention that I can and having regard to
the disgraceful manner in which each of the plaintiffs
was
incarcerated and treated there is a striking disparity between the
amounts which I would have awarded and that awarded by the
learned
Judge. That conclusion justifies interference by this Court.

In my
judgment the plaintiff MOHLABA should have been awarded the sum of
M75,000, the plaintiff PHIRI the sum of M25,000 and the
plaintiff
TS'EPE the sum of M50,000. In reaching this conclusion I have not
overlooked other cases which have been pressed upon
us in argument
but the facts in such cases are never quite the same and such cases
are not particularly helpful.

13

In my
judgment the appeal must be upheld with costs and the award of
damages by the Court a quo must be set aside and be substituted
by
the amounts referred to in the previous paragraph.

Signed:

Judge of
Appeal

I concur

Signed:

J.H.
STEYN

I concur

Signed:

L. VAN
DEN HEEVER

Acting
Judge of Appeal

Delivered
this 29th day of June, 1996.