CIV/T/396/90

IN THE HIGH COURT OF LESOTHO

In
the matter between:-

CECILIA SHABANGU PLAINTIFF

and

COMMISSIONER OF POLICE 1st DEFENDANT

ATTORNEY
GENERAL 2nd DEFENDANT

JUDGMENT

Delivered by the Honourable Mr Justice S.N. Peete on the
14th June 2000

In this case the plaintiff claims a total sum of
M66,758.00 from the defendants being damages suffered by her as a
result of wrongful
and unlawful killing of one Aubrey Bofihla Komane,
her natural son.

In reply to the request for further particulars the
plaintiff stated that at the time of his death, the deceased son was
27 years
old and that out of his monthly salary of M713.86 at Sasol
II Secunda, the plaintiff enjoyed maintenance in the

2

amount of M300.00 per month. She also annexed an
actuary's report of J.A. Carson & Partners who estimated the
pecuniary loss suffered
by the plaintiff as a result of the death of
her son, and put this at M66,758.00.

In their plea the defendants admit that they caused the
death of Aubrey Bofihla Komane on the 13th April 1990 at Hlotse in
the district
of Leribe but deny that the policeman who shot and
killed the deceased acted wrongfully or unlawfully because as the
policemen were
trying to arrest the deceased on suspicion that he had
committed an offence, he pointed a firearm at the policemen who were
affecting
the arrest and that:-

"In the process of resisting the aforesaid arrest
he seriously and in a most dangerous manner threatened injury to the
lives
and bodies of the (defendants) who in reaction thereto,
consequently caused the death of the deceased and as a result
defendants
deny that plaintiff has suffered damages as alleged or at
all".

The plaintiff then requested further particulars to the
defendant's plea in order to be able to replicate and the defendants
supplied
particulars to the effect that the deceased was
threateningly brandishing a firearm and pointing it indiscriminately
at people around
him and threatening and asserting that he would kill
them As he was doing the aforesaid, the deceased had his forefinger
of the right
hand bent on or around the trigger of the firearm."
These particulars were supplied by Mr Makhethe of the Office of the
Attorney
General on the 5th July 1991.

3

After a lull of seven years, an application was made by
Mr Makhethe for leave to amend the plea and further particulars in
terms of
Rule 33, and used in support thereof the affidavit of Tsolo
Raliengoane (the policeman who fired the fatal shot) in which he
described
the circumstances of the shooting. Paragraph 5 of his
affidavit is worth quoting in full on account of its relevance to the
inquiry
whether deceased was killed in self-defence.

"As we were approaching the scene of the said
incident, we recognised, on information, the said deceased AUBREY
BOFIHLA KOMANE
in the company

of another man of his size and probably age. They walked
in a staggering manner as if in drunken stupor. They were coming
towards
us, going the opposite direction to the one we were taking.
As they approached towards us and we finally got up with them a few
paces
in opposite directions, we introduced ourselves to them as
police-officers and ordered them to immediately stop. However, his
companion
who to this day we have not been able to identify, ran away
and disappeared away from our sight. Plaintiffs son complied and
raised
his hands. My colleague NEO MOKOTJO approached for purposes of
search. We were in uniform and carrying our SLR. rifles which are
being and easily recognisable. As NEO MOKOTJO approached, plaintiffs
son quickly reached for his waist, pulled out a 9 mm firearm,
which
is very powerful and is mostly recommended for Army and police
officers. He pointed it at NEO MOKOTJO who took cover, and lied
down.
Sensing the danger we were both in, I had no choice but to act to
save our endangered lives. The whole thing took hardly more
than two
minutes. It happened quickly. I shot plaintiffs son twice. The first
time I shot, I saw him still standing and pointing
his gun towards my
colleague NEO MOKOTJO. I shot the second time and it was then that he
fell down. When the deceased threatened
to shoot as aforesaid, in all
the circumstances it would have been very difficult to rule out that
if he succeeded shooting my colleague
NEO MOKOTJO he would not turn
to me. I acted in defence of our lives."

4

In his own affidavit Mr Makhethe explains that the need
to amend was necessitated by the incongruity between the original
plea and
the actual instructions of his clients.

On the date of trial, Mr Sello formally consented to
amendments to the plea and to the further particulars. Of necessity
it was agreed
that the lawfulness of the fatal shooting should be
determined by this court before the assessment of damages as claimed.
It was
also agreed that the onus of proof was on the defendants to
prove that the killing was excusable or justified under law. This
onus
may be discharged on a balance of probabilities.

First to be called by the defendants was Captain
Rakhongoana Mohanoe who informed the court that in April" 1990
he was a police
warrant officer stationed in Leribe (National
Security Services). He told the court that on the afternoon 13th
April 1990 he was
watching television in the private bar at Leribe
Hotel. At about 3 pm one person came in holding a quart of beer.
Having sat down
the man, unknown to him at the time, then pointed at
the television set and loudly remarked, "Leabua with his
soldiers have
killed our fathers!" and thereupon produced a gun
- 9mm colt - and pointing it upwards, said "Someone can
excrete."
Silence fell upon the private bar and people began
filing out. He says he became frightened as he did not have his own
service gun.

After this man had left the private bar, he says he then
went to the Hlotse police station and he noticed that the man was now
in
the public bar. He says he then made a formal report to Sgt.
Lepheane about the gun wielding man at the hotel.

5

Sgt Lepheane then patrolled out two troopers -
Raliengoane and Mokotjo to go to the Leribe Hotel. The two troopers
jumped into the
buck of his van and wore overall uniform and armed
with SLR rifles. He says that next to Pep Store they saw two men
coming towards
them. He then pointed out the man who had been
wielding a gun in the private bar. He says that at the time he
pointed him out, the—
man did not have anything in his hands. He
said after the two troopers had alighted, he drove on towards the
hotel intending to make
a u-turn. He said he then suddenly heard a
gun shot-even before he could make a u-turn. The gun shot was from
behind. He then turned
his vehicle and drove back only to find people
milling around a man who was prostrate on the ground.

He goes on to say that Trooper Mokotjo came up to him
and said "Here is the gun - we have it." He saw the gun
which Mokotjo
was then holding. It was the gun he had seen being
wielded in the private bar.

They then loaded the man onto the van and transported
him to Motebang hospital where he was later certified dead.

Under cross-examination by Mr Sello, the witness agreed
that it was rather unusual that there was no gun handed in at the
inquest.
He agreed that the deceased looked drunk when he uttered the
words "Leabua has killed our fathers" and was pointing the
gun upwards

"Question: What offence was committed by him?
Answer: Frightening the people

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He explained his purpose of going to report him at the
Charge Office was in order to effect his arrest and "not to
execute him"
(as Mr Sello put it). He says Mokotjo explained to
him that they shot the man because the man was also shooting them -
having produced
the gun - and that he had missed and that Raliengoane
shot him. It as brought to his attention that at the inquest neither
Mokotjo
or Raliengoane stated that the deceased had fired a shot
before he was shot by Raliengoane. He denied that he drove on so that
the
deceased could be shot.

He conceded that in his twenty years experience he had
never come up with a situation where a suspect who is confronted by
two armed
police, could draw out a gun to shoot. He says he heard
only one shot although Raliengoane says he fired two shots.

Next called was Trooper Raliengoane who told the court
that he is the member of the Lesotho Police having joined the force
in 1987.
In 1990 he was stationed at Hlotse Charge Office. On the
afternoon of 13th April 1990, Warrant Officer Mohanoe arrived at the
charge
office and made a report that there was a man brandishing a
firearm at the Leribe Hotel.

He goes on a state that Sgt Lepheane then patrolled him
and trooper Mokotjo to proceed to the hotel; they embarked the van
then being
driven by W/O Mohanoe. They were both wearing brown
overall uniforms and carried long SLR automatic rifles.

7

When they were near Pep Store or Dambah's Store, W/O
Mohanoe pointed out a certain man as the person who had been
brandishing a gun
in the hotel private bar. He says he and Mokotjo
then alighted and stopped the man and his companion having identified
themselves
as police. He says they then said "Hands up" and
one of the two men suddenly ran away leaving the deceased behind, who
had then raised his hands up. He says he said to Mokotjo "Go to
him" whilst he remained behind covering Mokotjo with his
gun at
the ready.

As Mokotjo approached the man suddenly lowered his
hands, took out the gun from his waist and pointed it at Mokotjo. He
says sensing
that Mokotjo's life was in danger he fired at the
deceased in order to protect Mokotjo and because he thought that
after shooting
Mokotjo the man would then turn upon him and shoot. He
says he shot at the chest; when the man did not fall, he fired again.
All
the time, Mokotjo stood still. The deceased then staggered and
fell down. He says he became frightened when deceased was pointing
the gun at Mokotjo.

"I thought that this man is shooting and might
shoot Mokotjo" he says, and continues to state -

"I did not consider shooting his hand as I thought
I might miss it."

He says after this he ran back to the charge office
where he made a report. When he came back he then looked at the gun
closely and
saw it to be a 9mm pistol.

8

He says the man was then searched by Sgt. Lepheana and
one 22 bullet was found in his pocket. The man was then transported
to the
Leribe Hospital where he was certified dead on arrival.

He told the court that he was later charged with
culpable homicide but was found not guilty (CR 536/94).

Under cross-examination by Mr Sello, this witness
explained that they had proceeded to the hotel because W/O Mohanoe
had reported
that a man was wielding a gun at the Leribe Hotel and
they wished to arrest him and had armed themselves with SLR
self-loading rifles
for self-defence. He said Sgt. Lepheana had
ordered them to arrest that man for his threatening behaviour.

He agreed that during their police training they are
taught martial arts and that depending on the circumstances, use of
force must
be resorted to as a last resort. He denied that the
deceased was "executed" in cold blood but "I shot him
because
he took out a gun," he says. "I wanted to disable
him. I did not shot at the arm. I aimed where he could not shoot
anymore
.... I shot at random aiming at the chest. My aim was to
disarm him." He also explained that when the man raised his
hands up
he had seen a gun on the right hip-underpinned by his belt.
He says the man had a jersey under which a gun was revealed when he
raised
his hands up.

9

At this point in time, his companion had fled. He went
further to say he did not remember asking Mokotjo to take cover nor
did Mokotjo
throw himself down and roll away.

Next called was P.W.3 Major Michael Raleaka to whom the
9mm gun was given by W/O Lepheana. He testified that later he sent
one policeman
Khobotlo to take the 9mm found at the scene for
ballistic examination and that this examination revealed that the gun
had not been
used at all. This 9mm was handed in as an exhibit at the
inquest (Leribe Inq. 808/92). On examination, this 9mm could be
described
an old, rusty firearm no longer in a working condition in
fact it could be 80 years old (It bears model- 1902). According to
the
Major the gun is not 9mm but an old. 38 which is shaped like a
9mm and appears to have been exposed to weather and rusty conditions.

On being asked by Mr Sello whether he could have
produced such a gun in the circumstances described, the Major opined
that it would
be to invite trouble from police armed with SLR rifles
- a drunk person would however unwisely do so. He agreed that the
police guidelines
on the use of firearms stipulate that the suspect
must be disabled in order to arrest him. The policemen are trained in
the shooting
techniques - that is about how and when to use a gun. He
agreed that shooting a man on the chest and twice so, indicates
intention
to kill. He says that there must be a warning shot - but
that this depends on the situation at hand.

P.W.4 - Maitumeleng Tsotetsi was then called to give
evidence. She told the court that she used to work as a bar lady at
the Leribe
hotel public bar. She says

10

that she used to know the deceased to whom she was
related and that on the 13th April 1990 the deceased had arrived at
the hotel in
the company of two men and one lady.

They bought beer and drank; then the deceased took out a
gun and said "This is my stick," as if addressing his
companions.
She identified the old gun before the court as the one
the deceased held on that day; the cross examination further revealed
that
the television set was not in the public bar but in the private
bar; and she in fact says that she did not see Mohanoe. The two men
who accompanied the deceased that day were Nkhasi and Malefane
Mohale.

P.W.5 was Detective Trooper Mokotjo who told the court
that in April 1990 he was stationed at Hlotse Charge Office. He says
that on
the 13th April 1990 he was on duty when a report was received
to the effect that someone was causing trouble at the Leribe hotel
in
that he was wielding a gun which had an unsettling effect on the
customers. He says Warrant Officer Lepheane then patrolled
Raliengoane
and himself to proceed to the hotel to apprehend the man
with the gun.

They proceeded towards the hotel in the van driven by
P.W.1 who had made the initial report. They were also armed with SLR
rifles
and wore brown police overalls. At the circle, Mohanoe then
pointed out one man as the man who had been wielding a gun at the
hotel.
They then alighted from the van and Mohanoe drove on. He says
they then ordered the man and his companion to stop. The man (the
deceased)
stopped but his companion suddenly took off ran away.

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He says they ordered the deceased to raise his hands up
and he complied; he says that as he was approaching him the man
suddenly dropped
his hands and immediately took out a gun and pointed
it at him. He was about two paces away when this happened. Being
shocked he
immediately dived to the ground and rolled away having
left Raliengoane behind to cover him. He says he then heard two gun
shots.
When he got up, he says he found the man already lying
prostrate apparently having been shot by Raliengoane and he says he
saw a
gun lying next to him. Raliengoane then rushed to the charge
office and returned with Lepheane; the man was then transported to
the
Leribe hospital where he was certified dead on arrival.

Under cross examination, witness Mokotjo insisted that
he actually dived to the ground and then rolled away to avoid being
shot; and
the court noted that at the inquest, there was no mention
made about diving and in fact Raliengoane before this court makes no
mention
of the fact that Mokotjo dived to the ground and rolled. This
fact was also not mentioned at the criminal trial at the Leribe
Subordinate
Court.

The defendants then closed their case.

Mr Sello having considered his position then elected not
to call any witnesses and also rested his case.

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It was common cause that the incidence of onus in this
case rested upon the defendants to show on a balance of probabilities
that
the killing of the deceased was justified in the particular
circumstances of the case.

In this inquiry one must be cautious not to import the
criminal standard and require that justifiability of the killing must
be proven
beyond a reasonable doubt. Under criminal law, factors or
considerations which may render the accused's act not unlawful are
usually
described as "defences" to criminal liability;
these statutory defences which may establish absence of unlawfulness
and
in appropriate circumstances can be relied upon by the accused to
escape conviction e.g. statutory defence under section 42 of the
Criminal Procedure and Evidence Act No.9 of 1981 is phrased as
follows:-

"42. (1) When any peace officer or private person
authorised or required under this Act to arrest or assist in
arresting any
person who has committed or is on reasonable grounds
suspected to having committed any of the offences mentioned in Part
II of the
First Schedule, attempts to make the arrest, and the person
whose arrest is so attempted flees or resists and cannot be
apprehended
and prevented from escaping, by other means than by the
peace officer or private person killing the person so fleeing or
resisting
such killing shall be deemed justifiable homicide.

(2) Nothing in this section shall give a right to cause
the death of a person who is not accused or suspected on reasonable
grounds
of having committed any of the offences mentioned in Part II
of the First Schedule, the offence of theft being limited for the
purposes
of this section, to theft in a dwelling house at night, and
theft of stock or produce."

13

As it can be observed the right to kill is a restricted
one under our law. Under the 1993 Constitution, Section 5 guarantees
"Right
to Life" with the following provisions:-

"(2) (1) Every human being has an inherent right
to life. No one shall be arbitrarily deprived of his life.

(2) Without prejudice to any liability for a
contravention of any other law with respect to the use of force in
such cases as are
hereinafter mentioned, a person shall not be
regarded as having been deprived of his life in contravention of this
section if he
dies as the result of the use of force to such extent
as is necessary in the circumstances of the case-

1. 
   for the defence of any person from violence or for
   the
   defence of property;

   
   

2. 
   in order to effect a lawful arrest or to prevent the
   escape of a person lawfully detained;

   
   

3. 
   for the purpose of suppressing a riot, insurrection or
   mutiny; or

   
   

4. 
   in order to prevent the commission by that person of
   a
   criminal offence,

   
   

or if he dies as the result of a lawful act of war or in
execution of the sentence of death imposed by a court in respect of a
criminal
offence under the law of Lesotho of which he has been
convicted."

Our law therefore recognises and guarantees the sanctity
of human life and a person can only be lawfully killed only in
circumstances
circumscribed by the law and it is upon the doer of the
deed that deprives a life to justify his act, hence the incidence of
the
onus of proof being cast on him.

14

Under our law a person who can prove that the deceased
had a duty to support him or her, is entitled to claim for the
patrimonial
loss of support resulting from the unlawful and culpable
killing of his breadwinner. The plaintiff has to firstly prove that
he or
she has a right of support against the deceased (Visser &
Potgieter Law of Damages (1993) pp 219, 375;

In the present case, the plaintiff's right as the
natural mother of the deceased to claim support has, however, not
been disputed.
What is in issue in these proceedings in whether the
killing of the deceased was justified in law and in the circumstances
of this
case.

The backbone of the case of the defendants is to the
effect that when he was shot, the deceased had whipped out a gun and
was pointing
it at Trooper Mokotjo who was then proceeding towards
him to search for a gun which he, deceased had been wielding in the
Leribe
hotel private bar. In fact, simply put, it was a killing in
defence of another, and it ultimately boils down to an issue of
credibility
of witnesses; in this case only the defendants called
witnesses and the plaintiff rested its case without calling any
witnesses.
The ultimate inquiry therefore is whether the defendants
have discharged the onus cast on them on a balance of probabilities.
In
a civil case the onus is discharged if the story of the party
bearing the onus is more probable than the other.

Whilst it is clear that the gun which was handed in
these proceedings was never fired nor was it capable of ever being
fired, being
an ancient piece of metal, it is a pertinent question of
fact whether on that day and occasion the deceased

15

suddenly dropped his arm, drew out the gun from his
waist and pointed it at Trooper Mokotjo. Regard being had to
circumstances it
would indeed be complete foolishness for the
deceased to have done so a few paces from two armed policemen. On the
other hand it
is also a real probability that Trooper Raliengoane
could have over-reacted by shooting at the man dropping his hand
because a gun
had been exposed when he raised his hands.

Although there has been no evidence called to gainsay
the evidence of the two policemen Mokotjo and Raliengoane, their
evidence must
however be tested upon their own credibility and
probability. It seems to me that it is more probable that Raliengoane
was a bit
quick to shoot when he saw he an exposed gun than a case of
the deceased pointing a rusted old hag of a gun at an armed policeman
who was also being covered by his colleague. I am also of the view
that the conduct of the deceased on the day of publicly displaying
the gun was blameworthy itself to say the least. It is irrelevant
that he was in fact toting what he knew was an old gun which could
never hurt a fly. Other people did not know that and were indeed
justified to treat the gun as capable of being fired. He the deceased
created and brought about a risky situation upon himself. It is
unfortunate that although Nkhasi and Mohale gave evidence at the
criminal trial, they were not called by the plaintiff if at all an
execution-style shooting was being alleged. These two men seem
to
have been present at the scene immediately before the shooting
occurred. This court is not going to conclude that the deceased
was
indeed "executed" without cause, without clear evidence to
that effect being adduced. That would be to speculate without
evidential foundation. The position of the gun shot wounds is also of
importance; if say,

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for example, the gun entry wounds were at the back of
the head or body, then perhaps the inference might be drawn that the
shooting
was unjustified. This court is the view that the more
plausible probability is that when he was shot at by Raliengoane, the
latter
believed rightly or wrongly that the deceased dropped his hand
or hands in order to draw out from his waist the gun which had been
exposed when the deceased raised his hands up. As I have already
pointed out, it is improbable that the deceased was shot at by
Raliengoane
without cause. I hold therefore that by wielding a gun in
the hotel and wearing it under his belt the deceased created for
himself
a hazardous if not a dangerous situation which further
created panic when he raised his hands exposing the gun under his
belt. The
two policemen could not be expected to have known that the
gun was old and utterly useless and totally incapable of harming any
one.
I dare say even if it was a Christmas toy-gun, their reaction
could still be similar if such a toy looked like a real gun!

On the other hand, I am of the view that the reaction of
Raliengoane to shoot when the deceased dropped his hands was a bit
panicky
and he could have swiftly disabled the deceased with his
automatic rifle without killing him. It is also the evidence of
Mokotjo
and Raliengoane that the deceased was staggering about as he
came along and appeared drunk. In my view shooting the man on the
chest
was not completely justified and was not the only option left.

Section 42 of our Criminal Procedure and Evidence Act
No.9 Of 1981 is worth referring to though neither Mr Makhethe or Mr
Sello referred
to it in these proceedings. It seems to me that
section 42 above purports to authorise the

17

taking of human life in certain circumstances; this
section however circumscribes this right to only those situations
where the deceased
has or is reasonably suspected of having committed
any of the serious offences under Part II of the First Schedule. It
is therefore
unnecessary to decide whether by wielding a gun (old,
loaded or unloaded) in a public place like the Leribe hotel the
deceased thereby
committed one of the offences listed under Part II
of the First Schedule. In the case of Raloso vs Wilson and others -
1998 (4) SA
369 where section 49 of the South African Criminal
Procedure Act 51 of 1977 was pleaded to justify the killing and its
constitutionality
was considered by the court ( see also section 5 of
the Lesotho Constitution quoted above).

It seems to me that generally speaking the killing may
be unjustified if it is the result of the use of force to such extent
as is
necessary in the circumstances of the case (a) for the defence
of any person from violence ... or (b) in order to effect a lawful
arrest or to prevent the escape of a person lawfully detained ... or
(d) in order to prevent commission by that person of criminal
offence. Section 5 of the Lesotho Constitution indeed crystalizes the
common law principles of private defence; each case must however
be
decided objectively upon its own particular circumstances - see R. v
Labuschange - 1960 (1) SA 632 per Schriener J. A. who noted
that
section 37 of Criminal Procedure Act 56 of 1955 (similar to our
section 42) afforded the police an extremely and, indeed dangerously
wide protection and opined that the Legislature could not possibly
have intended that recourse to shooting should be had light -
heartedly. The ultimate test should be whether the defendants have
proved on a balance of probabilities that there was no way in
which
the policemen could have

18

incapacitated the deceased save by killing him. Where
section 42 of the Criminal Procedure and Evidence Act does not apply
e.g. where
the offence committed or reasonably suspected to have been
committed is not listed in Part II of the First Schedule), the common
law principles applies, according to which the lawfulness of the
force used will depend on all the circumstances inter alia the
seriousness
of the offence must be weighed against the degree offorce
- Matlou v Makhubedu 1978 (1) SA 946; R.v. Britz - 1949 (3) SA 293 at
303
-4; Wiesner v Molomo - 1983 (3) SA 151. In the circumstances of
this case, I have already found that is not probable that the
deceased
actually pointed the firearm at Trooper Mokotjo as he
approached; at the same time it was not unreasonable for Trooper
Raliengoane
to have believed that when he dropped his hands, the
deceased was going to take out the exposed gun and shoot Mokotjo.
Trooper Raliengoane
all the time had his finger on his rifle trigger
(as any diligent policeman will do) and could have fired at the lower
limbs or torso
of the deceased to disable him. Here it must be
understood that Trooper Raliengoane could not be expected to shoot
with a cowboy
precision of wild Texas and to have shot the hand going
to grab the gun.

Whilst the evidence of the two troopers is not
satisfactory and congruent on certain aspects e.g. whether trooper
Mokotjo threw himself
to the ground and rolled away when the deceased
suddenly dropped his arms, their evidence cannot be discounted in
toto as fabrication
more so because their evidence has not been
gainsaid. At the same time it cannot be said the deceased was shot
and "executed"
for no cause at all. Probabilities point to
an over-reaction on the part of Raliengoane when faced with a sudden
emergency, and that
this was

19

precipitated by a foolish act on the part of the
deceased. There is in my view contributory fault on the part of the
policeman who
shot on one hand and on the deceased on the other. This
being the case, Section 2 of the Apportionment of Damages Order No.53
of
1970 is pertinent. It reads:-

"2. (1) (a) Where any person suffers damage
which is caused

partly by his own fault and partly by the fault of any
other person, a claim in respect of that damage shall not be defeated
by reason
of the fault of the claimant but the damages recoverable in
respect thereof shall be reduced by the court to such extent as the
court
may deem just and equitable having regard to the degree in
which the claimant was at fault in relation to the damage.

(b) Damage shall for the purpose of paragraph (a) be
regarded as having been caused by a person's fault notwithstanding
the fact
that another person had an opportunity of avoiding the
consequences thereof and negligently failed to do so."

Generally speaking the assessment of the extent to which
a plaintiffs compensation should be reduced in accordance with his
negligence
is obviously within the equitable discretion of a trial
court - South British Insurance Co. Ltd vs Smith - 1962 (3) S A 826
at 837;
Shield Insurance Co. Ltd vs Theron -1973 (3) SA 515 (A) at
518. In the case of Bay Passenger Transport Ltd vs Franzen 1975 (1)
SA
269 Trollip JA. at p.274 stated as follows "The best that a
court can do is to decide by the broadest general considerations
an
amount which it considers to be "fair in all circumstances of
the case"... the general rule that should be observed
in
assessing the amount is, I think, the well known

20

fundamental one that, in such circumstances of
difficulty and dubiety, defendants should be regarded with greater
favour than plaintiffs"-favorabiliores
rei potius quam actores
habentus (Digest 50.17.125). In other words, in striving to determine
an amount that will be fair in all
the circumstances, the court
should act conservatively rather than liberally towards the plaintiff
lest some injustice be perpetrated
on the defendant." - The
learned Judge of Appeal cited as follows from Pitt v Economic
Insurance Co. Ltd -1957 (3) SA 284 at
287 (Holmes JA)

" the court must take care to see that its award is
fair to both sides - it must give just compensation to the plaintiff
but
must not pour out largesse from the horn of plenty at the
defendants expense."

The learned Judge further noted that "one's natural
sympathy for an injured person does not result in overlooking the
fact..
That the figure of justice carries a pair of scales, not a
cornucopia - Innes vs Visser 1936 WLD 44/45 - See also Phae v Monyane
& others - 1974 - 75 LLR 285 Mohlaba vs Commander LDF 1995-96 LLR
235.

In assessing the amount of compensation the court should
pay regard to actuarial evidence which can play an important role in
assisting
the court in cases where parties cannot reach an agreement.
Although an actuary possesses the necessary skill to calculate
mathematically
the amount in a somewhat logical way the court still
has a bona fide discretion in the matter - Legal Ins. Botes 1963 (1)
SA 608
at 614. (For damages for loss of support caused by the death
of another, see generally Visser & Potgieter - supra page 374
etc)

21

Having considered all the circumstances of this case I
am of the view that fault must be apportioned proportionally and I
apportion
it proportionally at 40% (plaintiff) and 60% (defendant).
The plaintiff is therefore entitled to 20% of the amount claimed
assuming
the correctness of the actuary's assessment. This would then
come to M13,351.60.

S.N. PEETE
JUDGE

For Plaintiff: Mr Sello
For Defendants: Mr
Makhethe