CIV/T/558/87

IN THE HIGH COURT OF LESOTHO
In the
matter between:-

MAKHENKHE SEKEI Plaintiff

AND

PETROSE MAJORO 1st Defendant

MOEKETSI MAJORO 2nd Defendant

NONE MAJORO 3rd Defendant

PANDA MOFOLO 4th Defendant

MOZELELA LAMANE 5th Defendant

TLHOPHEHO MOLATO 6th Defendant

BABY MPHEPHE 7th Defendant

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 2nd day of February, 1990.

On the 14th September, 1987 the plaintiff issued summons
against the defendants in which he claimed M23,090-00 as damages for
the
loss of his sheep and goats which were negligently killed by the
defendants. He also claims interest at the rate of 22% per annum
a
tempore morae and costs of suit.

All the defendants were served with the summons on the
17th April, 1988. Only the first, the fifth and the 6th defendants
have

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filed their pleas. On the 19th October, 1989 the
plaintiff's counsel, Mr. Rakuoane, indicated that he was proceeding
against the second,
third, fourth and 7th defendants who have not
filed any Notice of Appearance to Defend. He then called the
plaintiff and one Mookameli
Ngenaphe to give evidence.

In his declaration the plaintiff avers that at all
material times hereto, he was a farmer who was lawfully permitted by
the Chief
of Matebeng to graze his animals at a place called
Pekamollo near Mount Tsolo. He annexed a copy of a permit No.617563
dated 20th
January, 1986 which confirms that he had permission to
graze his animals there. According to the permit one hundred and
eighty-seven
goats and eighty-four sheep were covered by it.

In February, 1986 the defendants wrongfully and
unlawfully seized his sheep and goats at Pekamollo and impounded
them. The Chief of
Matebeng intervened and released animals to
plaintiff.

On the 8th March, 1986 the defendants again wrongfully,
unlawfully and maliciously seized plaintiff's animals and impounded
them.
The plaintiff alleges that his animals were kept in the custody
of the , defendants for five days and that during that period one
hundred and forty-one goats and seventy-three sheep died. The death
of the animals was caused solely by malicious, reckless and/or
negligent methods of keeping the animals by the defendants in that :

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1. 
   The 1st Defendant's kraal where they were
   kept was
   small to accommodate the number
   of animals which were about Seven
   Hundred
   (700) in all and therefore the small and
   weak ones
   were trampled upon by the others;

   
   

2. 
   The animals were not let out to graze and
   drink
   water.

   
   

3. 
   The animals were not passed to the Ward Chief
   who
   would appoint a person to look after them
   as it is provided in
   Laws of the Country.

   
   

ALTERNATIVELY

The Defendants themselves and/or through their agents
failed to exercise reasonable care to safekeep the animals and
therefore they
negligently caused the death of the animals. The
defendants failed to discharge the duty of care once they had taken
the animals
in their custody.

The plaintiff testified that after he received a report
that his animals had been impounded by the defendants he sent one
Napo to
go and pay pound fees for them so that they could be
released. Napo went and came back and told him that the defendants
wanted M37-00.
From his home the plaintiff could see the kraal in
which his animals were kept and he noticed that for the five days
that they were
kept there they were not allowed to graze. He gave the
amount of M37-00 to Napo to go and pay for his animals. The following
animals
were missing when Napo returned:

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85 She - goats

37 he - goats
19 kid

23 hammels

38 ewes
12 lambs

214

The plaintiff claims M100 for each of he-goats, she -
goats and hammels; M80 for each ewe and M50 for each kid lamb; M2000
for the
loss of wool and mchair earnings and M3000 for trespass.

Mookameli Ngenaphe testified that the defendants (except
the first defendant) arrived at the cattle-post where he was herding
plaintiffs
animals. They told him that they were instructed by the
first defendant to seize the animals and to impound them for grazing
at that
place which was reserved pasture. He assisted them to count
all the animals under his care including some that did not belong to
the plaintiff. All the animals were driven to the home of the first
defendant and put in a small kraal which had an area of about
120
square metres. The kraal was so small that some animals remained
outside; but the defendants caught them and threw them into
the kraal
on top of others. The kraal was muddy. The animals suffocated and
died. When the first defendant that the animals were
suffocating he
ordered the defendants to take out some of them. They complied and
took out only nineteen of them. However, it was
too late because some
had already died while others were dying.

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5

Mookameli said that during the afternoon of that same
day he managed to escape because he was also under detention. He
reported the
impounding of the animals to the plaintiff.

I have come to the conclusion that the plaintiff has
established a prima facie case of negligence on the part of the
defendants against
whom he has decided to proceed. The prima facie
case must now become conclusive proof because the defendants decided
not to give
any defence.

I have assessed the damages claimed by the plaintiff and
have come to the conclusion that they are not unreasonable. However I
was
not satisfied that the plaintiff was entitled to damages for
trespass. If the first defendant is the chief of Tsolo as alleged by
the plaintiff in paragraph 12 of his decla­ration I do not see
how trespass can arise. A chief has a right to declare any area
under
his jurisdiction a reserved pasture. Now if he impounds animals he
finds grazing in that area he cannot be accused of trespassing.

Judgement is granted for plaintiff against the second,
third, fourth and seventh defendants who are severally and jointly
liable the
one paying the others being absolved, in the following
amounts:-

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4

1. 
   M18,090-00 being for the loss of the animals
   that
   died;

   
   

2. 
   M2,000-00 being for the loss of wool and
   mohair;

   
   

3. 
   Interest at the rate of 11% with effect from the
   date
   of this judgment and

   
   

4. 
   Costs of suit.

   
   

J.L. KHEOLA
JUDGE

2nd February, 1990

For the Plaintiff - Mr. Rakuoane
For the Defendants
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