IN THE HIGH COURT OF LESOTHO

 

 

HELD AT MASERU                                    CIV/T/401/2006

                                 

 

In the matter between:

 

 

‘MABOITHATELO MAKHASANE                    PLAINTIFF

 

AND

 

COMMISSIONER OF POLICE                     1^ST DEFENDANT

ATTORNEY-GENERAL                                2^ND DEFENDANT

 

 

JUDGEMENT

 

Delivered by the Honourable Acting Judge Mr. G.N. Mofolo

On the 3^rd January, 2011

 

 

Plaintiff has issued summons claiming:

 

1.          Twenty Thousand Maloti (M20,000.00) for arrest and detention;

2.          Thirty Thousand Maloti (M30,000.00) for verbal and physical assault;

3.          Ten Thousand Maloti (M10,000.00) loss of business and goodwill;

4.          Twenty Thousand Maloti (M20,000.00) for contumelia;

5.          Costs of suit; and

6.          Further and/or alternative relief.

 

The claim is defended.

 

According to paragraph 4 of Plaintiff’s declaration, on31st December, 2008 members of the LMPS stationed at Peka Post arrived at Plaintiff’s business premises and opened teargas inside the premises.

 

Again on 01January, 2009 members of LMPS stationed at Peka unlawfully arrested and detained Plaintiff for four (4) hours and during the said unlawful arrest and detention the Plaintiff was cuffed at the back of a motor vehicle and some members of the LMPS detaining Plaintiff verbally and physically assaulted Plaintiff (para.5, 5.1 and 5.2).

Again on the 19^th day of January 2009, the LMPS officers from the same Police Post surrounded the said Plaintiff’s business premises and there upon shot repeatedly in the air acting within the course and scope of their employment as Policemen in the Lesotho Mounted Police Service (paras 6 and 7).

 

In paragraph 8 the Plaintiff has alleged the unlawful arrest and detention as well as the assault and violent conduct alleged in paragraphs 4 and 6 took place in public and within sight of members of the public.

 

In support of her claim the Plaintiff PW1 duly sworn has testified though I must first mention Mr. Mosotho for the Plaintiff has drawn the court’s attention to the fact that by consent of the parties it is common cause that at the material time Plaintiff was operating a business at Peka under the style name THOLA-NGOANA PUBLIC BAR; also common cause that members of Peka Police arrived at the said place of business on the 31^st December, 2008 and on 1^st January, 2009.

 

As indicated above, Plaintiff has testified on oath that on 31^st December, 2008 when she looked at the watch it was about 10 she told customers she is closing business and they should go.  The witness testified her business is liquor restaurant fully licensed; she has testified she also proceeded into the tavern and told customers as it was time to close she was closing.  As she checked money she saw a group of customers coming into the storeroom and in response they said the police were beating them and spraying them with teargas she then asked her younger brother Lesole Makhasane who was bleeding on the forehead that he fought and he said a policeman struck him with a stick.  She says customers were wild and she was trying to calm them and outside she saw a policeman shooting into the air.  She says one policeman shot into the air and another one was lying on the floor.  She has testified customers were going wild and angry because a colleague had been struck and they wanted to fight.  Two policemen had then taken a policeman who was lying on the ground into a vehicle and drove off and she had had no conversation with the police except awaking her husband and dispersing customers with the hope police would return and say what they wanted but the police did not return.  She says these were events of 31^st December and as for events of 1^st January, 2009 in the morning her husband was looking for bullets the reason being events of the previous night had scarred him.  It was while sweeping was going on that five policemen came out of the vehicle.  Her husband was asked whether he was aware of what happened the previous night and in attempting to reply one of the policemen holding handcuffs about to handcuff her husband she intervened saying you cannot handcuff him because he doesn’t know anything about what transpired.  One of the policemen asked for a license and the witness gave it to the policeman.  The policeman had asked whether she was owner of the premises and she agreed and the policeman asked her to get into the vehicle not saying why she should get into the vehicle.  She says it was a police van and she was at the back of the van.  At Kotola’s two policemen alighted and one of the policemen tried to handcuff her and the driver who was senior discouraged him.  The van stopped at Tabola and three policemen alighted.  En route two policemen alighted and one of them wanted to fasten her hand onto the buggy and they were so angry they were telling her she was a pompous and proud old woman and the vehicle proceeded to Ramosalla’s.  She says she was handcuffed and sitting uncomfortably and at Ramosalla’s three policemen alighted and they headed to the chief’s place.  Two policemen had just alighted and she had just answered a phone call and one policemen got into the buggy trying to seize the phone from her and she resisted and he tread on her feet hitting her with an open arm on her face and took the phone reminding me how selfish I am for not allowing them to handcuff my husband who is a miner and he tightened the handcuffs on her wrists.  The three policemen who had alighted returned and drove to Rantuba’s.  The witness has testified every time the vehicle came to a stop three policemen alighted going to a building next to the road and she did not know what for they went there while the others left behind shouted at her and ultimately they got to Peka Police stations.  The senior having asked the witness to alight the latter asked how she was supposed to alight and she invited him to come to her and realized she was handcuffed, shook his head and asked keys to be brought and he unfastened the handcuffs, taken into the office and chained strapped to her feet and the senior policeman asked me what time we closed our business and I said it was at 10 o’clock at right.  She added the other year when she was a member of association called Leroa they requested government to extend hours to close at twelve o’clock especially at Christmas, Easter and the New Year the reason being our businesses were in rural areas and it was the only time their earnings improved.

 

The policeman then took what seemed to me to be a gazette turned a few pages but never told the witness whether the time was right or not and then handed it over to her, her license.  Asked if she was aware a policeman was struck the previous night of 31^st she said she had no knowledge and the other two policemen were telling me I did see when the policeman was struck.  Apparently the policemen saw somebody who wore a Samson overall and another a top written Brazil and yellow and green and the witness told the police wearing Samson was Motlalepula Mpiti and the other one in a yellow top was Tankiso Malikelle and forced the witness to admit those two are the ones who struck the policeman but the witness disagreed.  They saw chains on the witness’s feet asking the witness to bring along her brother and husband.

 

She says police took her into custody.  She says from the time the police took her from her business premises and brought her to her business premises she was in police station and chains put on her.  She says she was released at Peka Police Station at about 9 o’clock am.  Leaving the police station she met two gentlemen namely Katiso Phalatsi and Thabo Molapo who looked at her hand that was handcuffed and realized it was swollen and asking about the Commander I said it was a lady I never saw but asked the witness to accompany them to the police station.  Apparently Mr. Molapo is Member of Parliament for Peka Constituency.  A portion not interpreted related to the Commander not accepting that the Plaintiff was mishandled by police who, after all, had the right to handcuff her.  The witness has testified aware the Commander was shielding her policemen she asked for a medical form.  The police said they would not give the witness a medical form and the witness went away and after three days she went back to Peka to ask for a medical form seeing her hand was still swollen and they refused her a medical form and she got one at Hlotse Police Station and her hand was till swollen and she saw a doctor at Motebang Hospital, Hlotse.  She says she showed the doctor that her hand was bruised.  The witness has continued to say she closes at 10 pm and on the occasion when police came she closed at 9.45 pm.  She says her husband found two spent shells.  She says her husband kept the two shells as there was enmity between him and the police and they were still with him.  There was a lot of riff-raff about handing in spent to shells - not that they could not be handed in but that they necked to be marked to be handed in quite apart from the fact that these are police material to be released to the police and if not already released to be released to them.  She says a person who shot was a policeman.

 

She says on 19 January, 2009 at 4 am, she and her husband were preparing to go to the fields and after starting the engine she heard gun report behind her business premises and her husband said he saw vehicle lights at 4 o’clock in the morning before sunrise still a bit dark and after getting out of the yard her husband fired once. There was a long, exhaustive questioning of the witness about police harassment of Plaintiff’s business in an attempt presumably to establish loss of business as a result.  She says she lost 5 days of work and as to going up-and-down to establish what was the problem she says it’s not easy to calculate and to date she has not been charged.

 

Plaintiff’s evidence-in-chief was very long it needn’t have been that long as will become obvious later.  And so was the cross-examination running into 40 typed scripts doing very little to discredit the Plaintiff in material respects except in cross-examination a question was asked in course of shooting was any of your property damaged and the Plaintiff denied.  In cross-examination a question was posed to Plaintiff that the reason her rights were not spelled out to her and told she was under arrest only told to accompany the police to the police station was because Plaintiff’s husband was hostile and while this was denied it will be noticed the police did not straight away take Plaintiff to the police station nor was she told why she was wanted at the police station going by Plaintiff’s evidence.  It also transpired that in course of interrogation at the police station a statement was taken from the Plaintiff.  It also came to light that from where Plaintiff was picked up by police two villages are passed Kotola and Tabola and then St. Rose.  It will also be noted although the crown contention was that Plaintiff was wanted by police to make a statement regarding events of the previous night when a policeman was fatally injured, Plaintiff in cross-examination was also grilled about closing time giving an unmistakable impression that Plaintiff was taken to the police station to explain herself about her business – something for which she could have been arrested and in cross-examination it now transpires that the Plaintiff did not immediately ask for medical form immediately after release.

 

I have failed to appreciate what the lengthy cross-examination of the Plaintiff was intended to achieve considering police did not go to Plaintiff’s business to calm a rowdy crowd and by going there armed caused rowdiness.  If it was to check closing time this is something that could be done by one or two policemen without a whole armed police troop and if it was intended to take a statement from the Plaintiff a message to call at the police post would have been sufficient.

 

Pw2 – Katiso Phalatsi has testified on oath he was at Pw1’s bar on 31/12/2008 and Pw1 had said they should drink up as she wished to close the bar.  The witness has testified going out she was confronted by a headlight and soon policemen were alighting from a vehicle carrying sticks and a knobkerrie and police fired a shot and he heard a person scream and he noticed somebody had fallen on the stoop that was carried away by policemen.  Going back into the bar he found Pw1’s brother had sustained injuries it being claimed police had struck him with a stick and others tear gassed and the bar was closed and the following day he was telephoned that police had arrested Pw1 and he preceded to the police station with Pw1’s husband and a businessman.  Along the way they met Pw1 and it was suggested they go to the police station as Pw1 appeared to be arrested from what she showed them of her heads her face and wrists being swollen.  He also recalled events of 19/02/2009 while at house hearing gun reports in the morning at about 7 am and policeman wanted tobacco and when the salesman wanted money he was hit with the bolt of the gun.  He says these events made him uncomfortable and after their occurrence he decided not to go to the bar to forget about the humdrum of daily affairs and disturbed they are unlikely to return there least of all coming face to face with armed police.

 

Once more there was lengthy and tedious cross-examination of this witness fact being all the riots and discomforts in the bar were caused by police presence.

 

Pw3 – Lintša Mpiti was also testified on oath he resides at Peka, Liphakoeng and remembered events of 31/12/2008 when on this evening he left home at sunset to go to Makhalanyane’s to watch television with his wife who bought drinks and they set down to drink and he proceed to the snooker room with Makhalanyane who is Pw1’s husband.  As they played Pw1 entered saying it was after 9 pm and she intended to close and the witness set down with Pw2 to drink and after Pw1 went out he saw a headlight of a vehicle and policemen carrying sticks and a knobkerrie assaulting people and they fled the whole teargas was used and outside he heard a gunshot and he ran to the kitchen and outside she found Pw1’s brother bleeding from his head saying he was struck by a policeman without saying why they were assaulting people.  In the morning of 01/01/2009 he was going to Ramosalla’s when en route he came across a vehicle and two policeman going towards it where there were also two policemen and in the vehicle he saw Pw1 handcuffed and fastened to the vehicle rails and at home she told his wife she saw Pw1 in police vehicle her face swollen like she was assaulted. On 19/01/2009 the witness testified he heard a gunshot and dismissed the affair believing the police were after dagga smugglers or chasing thieves.  Because of police intimidation the witness has testified before the events he visited the bar but after the events he was afraid and they can’t even send children especially when there is a police vehicle around.

 

Plaintiff closed her case.

 

Motšoane Jacob Libetso has testified on oath that he stays at Maputsoe Ha Nyenye and he is a Police Constable at Police Post, Peka and in December 2008 he worked there and he knows Pw1 and the case is all about, on 31/12/2008 his Superior Officer gave him a task concerning a Liquor licensed Restaurant as to its closing time and adhering to terms of the licence and was given policemen to assist in the operation being Tpr Moloi, Velaphi, Mapota and Molibeli plus a vehicle and two big guns that is to say rifles and he was the driver and a minute after 10 pm, they went to a restaurant at Makhaketsa’s their purpose being to check whether bars licensed and closed at time stipulated in the license.  At Liphakoeng they shared work with Maputsoe police and at 11 pm, they came to Thola-Ngoana Restaurant and they found many people inside the yard who, when they parked, fled the scene and Velaphi on alighting proceeded towards the bar asking where the owner was and Pw1 emerged having been involved with her in a burglary and said to Pw1 they had come to check her licence and turning found a policeman had fallen and people in the bar were wild wishing to disperse and those outside throwing stones there being general panic.  He says he believes the gun report came from the police because it was a rifle sound.  He says they were not carrying sticks or a knobkerrie but rifles and there was no teargas the policeman having been treated as an out-patient and a docket for assault opened.  On 01/01/2009 at 6 am they proceeded to Pw1’s business the road was blocked by stones and they removed them to pass to Pw1’s business premises, explained to her they were investigating assault of the policeman and Pw1 said she had no problem making a statement and as the statement could not be made there and then whether she would go to the policemen.  He says he did not check whether business closes timeously.  He says they did not handcuff Pw1 for from there they went to Tabola and Liphakoeng and at Tabola they alighted leaving Pw1 in the vehicle alone.  He says they took Pw1 just after 6 am and went with her from place to place returning her to the police station at about 8 am.  The witness has testified they told the station commander they were not able to take Pw1’s statement at her home because of problems they encountered.  He says he does not know Pw1 being denied a medical form considering she did not complain to him about the so-called assault.

 

Pw2 – Tpr Katleho Velaphi sworn has testified he knows Pw1 in respect of whom the commander detailed them to check licences and closing time of liquor restaurants and at Pw1’s bar in Liphakoeng people were fleeing and he heard stones hitting their vehicles and as tones rained he turned round and was struck on the head with a stick and he was treated as an out-patient.

 

Dw3 – Tpr. Nkonyana Mapota sworn testified and he handed in occurrence book marked Exh. “A”.  He says they went to Makhaketsa’s to check bars and found some were closed while others were open and at Liphakoeng at about 12 midnight though he did not check time and some people were saying it was New Year businesses could not be closed and trying to remonstrate with them there was a gunshot and noticed someone had fallen down and found it was Constable Velaphi.  He says he was carrying a rifle as was Tpr. Molemo there being no teargas and they left hurried by stones throwing.

 

He says the following morning on 01/01/2009 he found a woman accompanied by two men and he was with Liketso, Molemo, Molibeli and Velaphe and they explained themselves to Pw1 (note their route was not blocked with stones and they were not sent by the Commander to Pw1 to take a statement regarding affairs of the previous night).  He says Pw1 seemed hostile if reluctant for her statement to be taken and there was around a hostile man who would not listen to them and they asked to accompany them to their offices to take a statement.  Although Dw3 was with the other police witnesses, he has omitted the bulk of other witnesses’ testimony like he was not with them and I am wondering how I can seriously take the defence case as true?

 

The defence has closed its case.

 

Facts of this case are that apparently a number of police were detailed by the Commander of Peka Police Post to check on liquor restaurants as to the validity of their licences and closing time. I have already remarked that as to when Plaintiff’s business premises were checked defence evidence differs materially some saying it was just after 10 pm and where and in particular the commanding officer Dw1 Motšoene Jacob Liketso saying “at about 1 pm at night we came to Thola-Ngoana Restaurant … and called the owner Pw1 I had known before …” and having explained to Pw1 the reason they were at her business premises there was a gunshot and general pandemonium probably as a result of an injury to Constable Velaphe who was treated as an out-patient.

 

According to the witness the following day on 01/01/2009 early in the morning at 6 am him and other police proceeded to Pw1’s business premises and told her they were investigating an assault on a policeman and whether they could take a statement from her.  According to this witness he did not check whether business closed timeously but in any event went around several places with Pw1 who, according to him, was not handcuffed returning to the police station with Pw1 at about 8 am explaining they were not able to take Pw1’s statement at home because of problems encountered and denied knowledge of Pw1 being denied a medical form.

 

Mr. Mosothofor Plaintiff has submitted it is trite law that physical integrity is nearly of protection and corpus is protected against infringement being of most valuable legal interest.  I entirely agree in that human dignity is protected and may not be infringed considering the African Charter enumerates a number of civil and political right attributable to the individual these including “the right to the respect of human dignity” transcending boundaries of nation, station in life, and belief.  It was hardly proper to have meted treatment complained of to the Plaintiff considering she was not found to have breached terms of her licence and even if she had hardly deserved being molested, handcuffed and manacled as she has complained.  Those of us who have been through horrors of racial discrimination are alarmed some treatment others the way they were treated in those infamous days.  Among some of these political rights as enshrined by the African Charter is the right to liberty and freedom of movement which was arbitrarily denied Plaintiff recalling according to Pw1 Liketso Head of the Operation their mission to Pw1 was check on her licence, and closing time something that was not done while on 01/01/2009 the mission was to investigate an assault case on Velaphe and yet, according to Dw3 Mapota they were detailed by the commander to take a statement regarding affairs of the previous night.  And while the mission was the same, facts on the ground differ for according to Liketso Pw1 had no problem the statement being taken and yet Dw3 Mapota says Pw1 was hostile to her statement taken as was someone who would not have the statement taken and they asked Pw1 to accompany them to their offices to take a statement, something which did not happen Plaintiff being taken from place to place and subjected to molestation as she has testified like she had committed a wrong.

 

Mr. Mosothohas submitted injuria is wrongful deprivation of liberty by which a person is deprived of his physical freedom without justification all that is required being Plaintiff to prove defendant or his agent or servant deprived him of his liberty neither intent nor negligence being necessary to found liability in that it is a form of liability without fault.  I agree.  He has further submitted assault is a form of physical infringement of a person’s corpus all that the Plaintiff has to prove being that he/she was assaulted the onus of denying the allegation resting on the defendant.  Pw1 was corroborated by Pw2 Katiso Phalatsi that “her face was swollen and wrists” and moreover Pw2 told the court the station commander said it was right that Pw1 was handcuffed and it will be noted these allegations were not denied.  There was further corroboration by Pw3 that “I found a police vehicle and there were two policemen next to the vehicle and in the buggy I found Pw1 handcuffed and she was fastened to the vehicle rails … and her face was swollen like she was assaulted.”

 

Mr. Mosothohas further submitted a person’s dignity embraces his/her subjective feeling of dignity or self-respect and any insulting words or belittling or contemptuous behaviour infringes on the right to dignity and I agree Plaintiff as treated contemptuously by the police.

 

As to damages, Mr. Mosotho has submitted this is a case of abuse accompanied by brutality the police disregarding citizen’s rights and hefty compensation was called for.  Mr. Mosotho has further submitted damages are awarded to put the Plaintiff in a position she or he would have been but for the wrong committed against her/him.  I agree.

 

Mr. Mokobochomore concerned with quantum has submitted Plaintiff was detained at 8 am and released at 10 am and as for as the medical form is concerned it came 2-3 weeks after the incident it was Plaintiff’s evidence that the police at Peka refused her a medical form the court nevertheless satisfied that there was evidence Plaintiff sustained injuries.  So far as verbal assault is concerned Mr. Mokobocho has submitted there is no evidence Plaintiff’s dignity was infringed and in presence of whom though I must mention the taking away of a person by police unless the act is explained amounts, to ordinary villagers, as arrest and in any event Pw3 witnessed the handcuffing which was not denied to Plaintiff’s husband and those accompanying him.  Mr. Mokobocho has also submitted loss should be a kind resulting from an unlawful act and while this is admitted there were evidence some people had seized going to Plaintiff’s business and supporting her because of police events of 31/12/2008.

 

The court’s comes to the conclusion that the Plaintiff has proved her case on a balance of probability but that damages sustained overall do not seem to have been of a serious nature in that concerning malicious arrest this lasted at most for only 6 am to 8 am being two hours according to Dw1 Liketso commander of the operation while much as Plaintiff was assaulted it was a minor assault.  Unfortunately, there was no proof of loss as there should have been from daily takings before and after the incident the court having to estimate what is reasonable loss in the circumstances though, unfortunately, it does not appear in her summons Plaintiff has claimed damages from a particular day to a particular day having claimed general damages.

 

In the assault Plaintiff is awarded damages in the sum of :

        1.     Malicious arrest and detention     =   M2,000.00

        2.     Verbal and physical assault        =   M2,000.00

        3.     Loss of business and goodwill      =   M1,000.00

        4.     Contumelia                                   =   M3,000.00

                Amounting in all to M8,000.00 plus costs.

 

 

G.N. MOFOLO

PUISNE JUDGE

 

For the Plaintiff                :       Mr. Mosotho

For the Defendants  :       Mr. Mokobocho