CIV/T/223/2005
IN THE HIGH COURT OF LESOTHO
In the matter between:
'M'AMATSELA MACHEPHA PLAINTIFF
AND
COMMISSIONER OF POLICE 1st DEFENDANT
ATTORNEY-GENERAL 2nd DEFENDANT
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo On the 2nd April, 2007
Plaintiff issued summons against the Commissioner of Police and Attorney-General claiming:-
Payment of the sum of M50,000.00 as damages;
Costs of suit; and
Further and/or alternative relief.
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The declaration was amended splitting the claim into:-
Assault = M20,000.00
Harassment = M 10,000.00
Unlawful arrest = M 10,000.00
Unlawful detention = M 10,000.00
The matter was defended and yet on trial date neither the defendants or their attorneys appeared before court and as matter properly set down it proceeded.
In her declaration the plaintiff alleged at paragraph 4 that she was on 4 May, 2004 arrested and detained at Hlotse Police Station by NO.3339 Tpr Fusi and a certain policeman Mohale subordinates of the first respondent. While the said police officers were acting within the scope and cause of their employment as servants of the crown plaintiff being alleged to have committed theft and the reason for her detention in police cells at Hlotse Police Station. Subordinates of the aforementioned first respondent had:-
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5.1 Handcuffed plaintiffs feet and hands, chocked her with a plastic bag and assaulted her;
5.2 Took plaintiff at midnight to Hlotse river her feet and hands cuffed, threw her into the river and interrogated her;
5.3 On return to the police station plaintiff and another inmate 'M'atekile Kaaba cuffed together hands and feet, chocked with plastic bags and whipped with a hose-pipe all over the body, plaintiff fainting as a result;
5.4 Plaintiffs clothes removed and left nude and naked with her feet and hands jointly fastened and stick being placed between her thighs and hung on roof of the cell room;
5.5 While hanging, Fusi took out a stick pointing to plaintiffs parts of the body directing the plaintiff to
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call them by name while the policewoman was watching and amused;
5.6 Fusi ended up touching plaintiffs private parts and genitals by hand until he was satisfied;
5.7 Later plaintiff was untightened and assaulted with a hose-pipe. Her feet and hands were swollen and bruised and unable to walk;
5.8 On expiry of two days detention the policeman applied for her further detention, not being allowed to see the Leribe Magistrate,
but further detained.
At paragraph 6 the witness has alleged the interrogations, brutalities, harassment, ill-treatment and torture and inhuman behaviour meted out to her to coerce plaintiff into admitting an offence she never committed case NO.Cr 286/04 being finalised on 23 October and plaintiff acquitted.
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Plaintiff went into the witness box reiterating facts as appear in her declaration adding, on questions by the court, that she is
self-employed selling leather jackets and for the seven days she was detained had lost profits to the tune of M500.00 a day; unfortunately
for plaintiff loss of profits has not been claimed in her summons.
Plaintiff handed in a medical report which shows she was assaulted with fists and handcuffs. Abrasions and bruises have been shown on the sketch and the doctor has written on the report "complaining weakness in the legs, headache, and bruised ears.
Cause of injury said to be "fists and handcuffs."
Degree of force inflicted : Mild
Dangers of injury to life : None/Light
Degree of immediate disability : Moderate Degree of long term disability : None And she was treated as an out patient.
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In Whittaker v Roos and Bateman 1912 I.D. 92 at 118 where plaintiff claimed damages for assault, the court warned "abuse of
authority ought not to be treated as a venial act to be condoned by the payment of a few pounds and that punishment of the accused person should only begin when the prisoner's guilt has been established in court. At p.125 of the same case Innes, J said:-
"A deliberate aggression upon personal dignity and personal liberty is not a trivial matter; and awaiting trial prisoners, as being in a position of peculiar difficulty and helplessness, are entitled to the special protection of the court".
And in Manamela v Minister of Justice and Others, 1960(2) SA 395 (A.D.) at p.401 Schreiner, JA said:-
"Circumstances of each case govern but any comparison may be made though in the instant case appellant was treated worse than
Whittaker." These facts apply with
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equal force to the plaintiff who has complained of "weakness in the legs, headache and blocked ears."
In Sibiya v Swart, N.O. 1950(4) SA 515 (A.D) a constable after completing the arrest of the appellant and while taking him to the police station committed assaults upon the appellant causing him severe bodily injuries. Court per Centlivres JA held assault committed while the constable was performing a statutory duty i.e. taking appellant to the charge office. Held further, as the duty did not depend on the exercise by the constable of any personal discretion and he was acting as a servant of the crown and was under its control in carrying out this duty, that the crown was liable in damages. As facts of the instant case are similar to facts in Sibiya's case above, judgment is entered for the plaintiff as prayed.
As to quantum, reference is made to Whittaker's case above plus the degradation and loss of personality that the
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plaintiff was subjected to, factors which, in this court's view, aggravate the assault.
Defendants are accordingly ordered jointly and severally, the one paying and the other to be absolved to pay the sum of:-
M10,000.00 for assault
M10,000.00 for unlawful arrest and
M10,000.00 for unlawful detention amounting in all to M30,000.00 no award being made in respect of harassment which, in this court's view, borders on sentimental damages. Defendants are to pay plaintiffs costs jointly and severally the one paying and the other to be absolved.
G.N.MOFOLO JUDGE
For the Plaintiff : Mr. Tsenoli
For the Defendants : No appearance
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