CIV/T/118/78

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

MAKOMORENG
VITALIS MACHAI Appellant

v

NKO
MAHLOANE 1st Respondent

MAHLELEHLELE
MAHLOANE 2nd Respondent

SEBOKO
MAHLOANE 3rd Respondent

JUDGMENT

Delivered
by the Honourable Chief Justice, Mr. Justice T.S. Cotran, on the 18th
day of April, 1986.

This
action was filed in November 1978 The trial commenced in May 1980,
resumed in February 1986, and completed finally on the 18th
March,
1986. The delay may not be a record but I think it is the duty of
counsel and attorneys to ensure that delays of this magnitude
are
avoided.

The
plaintiff claims from the three defendants jointly and severally the
sum of M5.000.00 as damages for personal injuries allegedly
inflicted
by them. 'The particulars state that the sum claimed is for "pain,
shock, suffering, contumelia and loss of amenities."

The first
defendant admits assaulting the plaintiff but pleads justification on
the grounds that he did so in self defence when
attacked with a knife
by plaintiff who damaged his bags of sorghum The second and third
defendants deny they assaulted the

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plaintiff
at all and maintain that they were trying to restrain him from
assaulting the 1st defendant when he was causing damage
to the bags
of sorghum.

The
defendants admit the medical evidence, such as it is (Exh A) It is a
photocopy and not very clear. We learn that the plaintiff
had two
wounds on the head, and a very small wound on the left hand The
wounds were not dangerous to life, but the doctor thought

considerable force was used. The degree of disability was light to
moderate. The plaintiff was admitted to hospital and spent 8
days. He
attended hospital twice since discharge. He suffered from nothing
thereafter, and suffers from nothing now.

The
plaintiff swears he was hit on the head by D1 and D2 from the rear
and on looking back saw 03 join D1 and 02 D1 was holding
a knob kerne
The plaintiff says he slipped and fell down and D1 knocked him on the
mouth. Plaintiff says he lost his two front
teeth. He denied that any
of the defendants 2 and 3 attempted to intervene. Plaintiff maintains
his sister and mother tried to
intervene but were in turn assaulted
when they arrived. The plaintiff was supported by Lebusang Thetsane
P.W 2 and the daughter
(who did not testify) of the owner of the
complex, one Amelia Nko, a widow who died in July 1977

The
events leading to the incident, which were mostly common cause,
should now be summarised.

Amelia
Nko was widow. She lived with her sister, who was the plaintiff's
mother. Amelia Nko had no living sons. For the past

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thirty
years or so the plaintiff was a friend, a relative and a provider and
to some extent, the manager of her homesteads and arable
lands He did
not live at her home regularly. Nor did Amelia's daughter. She
apparently lived a distance away.

It is now
common cause that the first defendant is the heir to Amelia's estate
he being the eldest brother of her late husband.
The other two
defendants are junior brothers but all three assorted their rights by
moving into Amelia's complex, to the resentment
of the plaintiff",
his mother and Amelia's daughter

A At the
time of Amelia's death the sorghum from the lands had been reaped
(eitner fully or partially) and placed on the floor of
one of the
huts in her complex On her death the three defendants arrived (and
laid claim to all her property including the loose
sorghum which they
tried to put, into bags

There was
great tension because the plaintiff claimed that he is entitled to
the sorghum. He says he paid for the ploughing for
the seeds, ana for
the labour. I believe the plaintiff in this respect and indeed the
defendants do not appear to deny he is entitled
to some but not all
of the sorghum but they apparently occupied the widow's house and
deprived the plaintiff's mother and Amelia's
daughter of access. The
defendants started filling the sorgnum into the bags.

Now the
plaintiff immediately complained to the chief who ordered that the
status quo remain as before until the courts decide the
issue.

It would
seem there was some delay in disposing of the case

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and the
defendants went back to the chief and told him that the sorghum will
deteriorate on the bare floor, and they proposed to
put it into bags.
The chief, acceding to defendants, but admittedly in the absence of
the plaintiff or anybody on his side told
them

"You are the heirs and it you want to fill the the sorghum into
bags it will be your affair "

The chief
himself did not testify, so what the chief said is hearsay, but be
that as it may Amelia's daughter travelled to Maseru
and informed
plaintiff (who had just returned from a conference) of what happened

The
plaintiff rushed to Amelia's home. He says he was calm The defendants
say he was furious, in a fighting mood and carrying a
knife. He
started slashing the filled bags of sorghum allowing the sorghum to
flow on the floor and they were simply trying to
restrain him

I think
the truth lies somewhere in between, I do believe that the three
defendants did assault the plaintiff as he describes. The
defendants
interferred with the order of the chief in the first place and the
alienation that the chief countermanded his first
order has not been
substantiated. None of the defendants suffered any injury

As usual
in these cases it is difficult to assess the quantum of damages. I
think that plaintiff is partly to blame. The injuries
were not
serious, there were no after effects, and I think the time taken to
prosecute this case must somewhat weigh

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against
plaintiff.

My award
is M1,200 to plaintiff with costs.

T.S.
COTRAN

CHIEF
JUSTICE

18th
April, 1986.

For
Plaintiff - Mr Maqutu

For
Defendants - Mr. Matsau