CIV/T/71/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of

FRANCINA
'MAMATSIEFSO RANKHELEPE Plaintiff

v

JOE
NTEBELE Defendant

JUDGMENT.

Delivered
by the Hon Mr. Justice J L Kheola on the 12th day of June, 1985.

The
plaintiff, Francina Rankhelepe, is suing the defendant, Joe Ntebele
claiming damages for personal injuries she suffered at her
hands She
also claims damages for the replacement of her spectacles which were
broken by the defendant during the assault

The
plaintiff gave evidence to the effect that in 1982 she was a student
at the National University of Lesotho On the 27th September,
1982 she
went to the refectory at about 12 noon and found that the door of the
refectory was not yet opened. She and other students
waited near the
door While they were waiting there she saw the defendant passing them
and going to the second window from the door.
He looked through the
window at the placards on the noticeboard and then ran round the
refectory and entered through the back door
He went to the notice
board and removed three placards posted there. Out of curiosity the
plaintiff had immediately gone to the
window through which the
defendant had been peeping and she saw the three placards. They were
removed before she read them She
asked the defendant why he removed
the posters He put them on a table and asked her whether she had
anything

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to do
with those posters Her answer was in the negative

At this
stage an altercation ensued, the plaintiff told the defendant that he
had no right to remove those posters as he was not
a member of the
student union. He said that he had every right to remove them and
that he would show her that he was entitled to
do so. He came nearer
to her while they were still arguing, however there was a table
placed against the wall which was about 4
feet wide Although the
window was open, there were burglar proofs The plain­tiff says
that as they were still talking the defendant
suddenly punched her
with a fist on the face. The blow landed on her right eye breaking
the lense of her spectacles and causing
some injury around the eye He
delivered the second blow but missed her because she had retreated
slightly She denied that she sustained
the injury when her face
bumped against the burglar proofs during the struggle for the
possession of the posters

The
doctor who treated the eye of the plaintiff describes the injury as a
small haematoma below the right eye. He was of the opinion
that the
immediate disability caused by the injury was light and that there
would be no permanent disability. His report is Exhibit
"A".

Sentsuoe
Lenka testified that she was one of the students who were waiting
outside the refectory when the fight took place She confirmed
the
story of the plaintiff on a number of points, however there were some
contradictions. The plaintiff said that when the defendant
removed
the posters he rolled them and put them on a table before he went to
her at the window, but Sentsuoe's evidence is to the
effect that
after rolling the posters the defendant put them under his armpit and
went to the plaintiff still carrying them under
his armpit She denies
that the plaintiff sustained the injury during the struggle for the
possession of the posters when her face
Damped against the burglar
proofs. She also says that the defendant opened the window when he
talked to the plaintiff, but the
version of the plaintiff is that the
window was already open when the defendant first peeped through it.

3

The
second witness called by the plaintiff is Teboho Seholoholo who was
also among the students near the door of the refectory His
version is
the same with that of Sentsuoe Lenka except that neither the
plaintiff nor Sentsuoe said that the defendant said the
plaintiff was
a silly woman.

The
defendant's version of what took place that day is as follows He was
working in the student's club when he received information
that there
were placards on the notice board in the refectory which were
defamatory of him. He rushed to the refectory and saw
them through
the window. As the front door was still closed he entered through the
back door and removed the placards. He folded
them and put them under
his armpit in such a way that the longer part of the roll was
projecting infront of him. At that time the
plaintiff called her. He
wont to her She told him that he had no right to remove those posters
because he was not a student He
told her that he had a right because
what was written in the posters tarnished his reputation. As the
altercation went on the plaintiff
suddenly put her hand through the
burglar proofing and got hold of the front end of the roll of
posters, he held the other end
and there was a tug-of-war He pulled
one end of the posters while she pulled the other It was during this
struggle that the plaintiff
hit the burglar proofing bars with her
face and broke her spectacles and sustained the injury. She released
the posters as soon
as she bumped against the bars with her face. The
defendant said that he struggled for the possession of the posters
because he
did not want them to be seen by a large number of the
student body, he also intended to take legal steps against whoever
was involved
in the writing of those posters.

Francis
Toloane told the Court that at the relevant time he was employed by
the university as a refectory supervisor. His evidence
is that on the
Z7th September, 1982 he entered into the refectory through the nark
door intending to open the front door so that
students could

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have
their lunch As he walked towards the front door he saw the struggle
between the defendant and the plaintiff for the possession
of a
poster. The former was inside the refectory while the latter was
outside the window which had burglar proofing bars He observed
this
tug-of-war for only a very short time and proceeded to the door and
opened it After opening the door he noticed that the struggle
was
over and the defendant had the poster in his hands and was going out
through the back door.

The
defendant called two other witnesses namely, Thabo Motlamelle and
Tlhoriso Mareka Their version of what took place was substatially
the
same with that of the defendant.

It is
trite law that in a civil case the party who bears the onus must
discharge it on a balance of probabilities. In the case 01
Miller v
Minister of Pensions,(1947) 2 All E.R. 372 at p. 374 Lord Denning
formulated the civil standard as follows

"It must carry a reasonable degree of probability but not so
high as is required in a criminal case. If the evidence is such
that
the tribunal can say 'we think it more probable than not,' the burden
is discharged, but if the probabilities are equal it
is not "
(My underlining)

I stated
earlier in this judgment that the plaintiff's evidence is in direct
contradiction with that of her own witnesses as to
whether at the
time he went to her at the window he was still holding the posters I
think this point is of some great importance
because the defendant's
story is that he was holding them and that the plaintiff grabbed
them. Her version is that when the defendant
came to her he was not
holding any posters because he had folded them and put them on a
table Her own witnesses say that the defendant
had them under his
armpit when he approached her. They therefore corroborated the story
of the defendant on this important point.
I am now wondering why the
plaintiff wanted to give the impression that the placards were not in

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the hands
of the defendant just before the trouble started Did she deliberately
mislead the court or merely forgot what exactly
happened that day? I
do not know, but the fact is that her evidence on this point is at
variance with the evidence of her own witnesses
as well as that of
the defendant and his witnesses.

There is
no doubt that the plaintiff was entirely against the idea of the
defendant removing the placards from the notice board
before she and
the other students had had the chance to read what was written in
them. She was eager to see what was in them and
she was convinced
that the defendant had no right to remove them because he was not a
student It seems to me to be highly likely
that if the placards came
within her reach she would have snatched them because of her
conviction that they had fallen into the
wrong hands It was never
explained to this Court why the plaintiff felt so strongly about the
removal of those posters as they
were not posted up by her nor did
she know their contents

It is
probable that if the plaintiff got hold of the posters while the
defendant was still talking with her he would pull them very
hard
because he knew that their contents tarnished his reputation. It is
therefore possible that in that struggle the plaintiff
could easily
have bumped her head against the burglar proofing bars because she
would not have released them without a struggle.
It was suggested
that if such a struggle had taken place the placards would have got
torn without much struggle. I do not agree
with this suggestion
because the placards (which ware more than one) were wrapped up into
a roll, in addition to that they were
made of a paper thicker than
the ordinary paper.

The
plaintiff told the Court that her face was very close to the burglar
proof bars when she talked to the defendant. All of a sudden
the
defendant charged at her like a wild beast and punched her with a
fist. It must be remembered that there was a table place
against the

6

wall and
separated the defendant from the plaintiff. In order to reach the
plaintiff the defendant would have to bend over the table
It must
also be remembered that the parties were angry I do not agree with
them that they spoke gently and very politely. My difficulty
is that
I do not understand why the plaintiff did not retreat in time to
avoid the blow I do not think that the plaintiff would
have remained
so close to the window when he saw that the plaintiff was charging at
her In any case the defendant's reach was limited
by the fact that he
had to lean over a table

On the
evidence as a whole I came to the conclusion that the story of the
defendant is more probable than that of the plaintiff
The action is
dismissed I shall make no order as to costs.

J L
KHEOLA

JUDGE.

14th
June, 1985

For the
Plaintiff Mr. Pheko

For the
Defendant Dr Tsotsi.