IN THE HIGH COURT OF LESOTHO

 

 

HELD AT MASERU                                      CIV/T/87/1998

                                 

 

In the matter between:

 

 

RANTŠO TSOHO                                          PLAINTIFF

 

AND

 

THE ATTORNEY-GENERAL                        1^ST DEFENDANT

COMMISSIONER OF POLICE                     2^ND DEFENDANT

 

 

JUDGEMENT

 

 

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

On the 3^rd January, 2011

 

 

        Plaintiff issued summons claiming:

1.          Damages in the sum of M30,000.00;

2.          Costs of suit; and

3.          Further and/or alternative relief.

        The matter was defended.

 

        Plaintiff in his declaration at paragraph 3 has claimed on or about the 19^th night of September, 1997 he was wrongfully, unlawfully and intentionally assaulted by three police officers whose names he has not been able to secure and that AD paragraph 4 the said police officers did assault plaintiff in course of duty and within the scope of their employment as servants and employees of the Lesotho Government and Lesotho Government is vicariously responsible for the said acts and wrongs of the said police officers. Further (AD paragraph 5) as a result of the said assault plaintiff sustained injuries on the head, body and his left index finger was broken.  At para.6 plaintiff has alleged as a soldier he uses the finger to shoot in course of duty and as a result of the damage he is no longer able to use the finger.

 

        Plaintiff has broken down damages in the sum of M30,000.00 as follows:

(a)         Assault in the sum of M12,000.00;

(b)         Pain and suffering in the sum of M8,000.00;

(c)          Loss of amenities in the sum of M5,000.00; and

(d)         Disfigurement in the sum of M5,000.00.

 

        I have checked Exh.’A’ collectively the medical report and find it confirms injury to the head (skin laceration back of head, side of head); injury to the body (bruises back) and index finger the degree of force inflicted being considerate mild cancelled.  I may remark “considerate” was subject of argument for it appears the form was wrongly printed “considerate” the right word being “considerable” as in damage to the building was considerable; danger of injury to life was found to be negative (none), degree of immediate disability none, degree of long term disability none and plaintiff hospitalized from 20/09/1997 to 22/09/1997.

 

        Going by the medical form, although degree of force inflicted was considerable all in all it does not appear that as a result of injury sustained plaintiff life was threatened or that there was immediate or long term disability and plaintiff’s modest claim of M30,000.00 suggests overall not much damage was incurred.  Annexure ‘A’ collectively being letter of 23 February, 1998 also explains itself the doctor saying injuries to Rantšo Tsoho were:

“laceration of the scalp, fracture of the proximal        phalanx    of the left index finger and that on admission plaintiff      semi-conscious though soon fully conscious.  That wounds   sutured and the fracture managed conservatively though      the finger has residual stiffness as he cannot flex it.”

 

        Pw1-the plaintiff gave evidence on oath saying when he entered the disco he left his gun on the window sill where firearms are kept and a gentleman had instructed him to leave his firearm there for he was not allowed to go into the disco with a firearm.  The witness had admitted he does drink the witness has testified a policeman came to him, touched him saying they were to go outside for a chat.  He says on leaving their guns at the window sill they are given tickets and to retrieve his gun he has to produce a ticket.  The witness has testified outside the policeman said he was seeing a dangerous weapon on him and produced his gun saying:  this one.  The witness has testified another policeman came and whipped him on the head with a sjambok.  Asking them why they were whipping him they sandwiched him and snatched his gun and then assaulted him by hitting him with sticks on the head and sjamboking him on his body and he fled and as he crossed Kingsway Road he heard a gun report three times and he ran until he came to Boccassio.  He says they assaulted him a long time before he fled and he estimates this to have been about four (4) minutes.  As they beat him he was warding off the blows and next to Boccassio one of them hit him on the head with a stick, he fell down and they all fell on him assaulting him with sticks and sjamboks while he had fallen and as they beat him while he had fallen he fell unconscious having sustained serious injuries on his head and his index finger broken with bruises all over is body.  He says his finger did not heal for it is not in the shape it used to be and it does not point straight though at present it was not painful having been painful for three months and it looks ugly and he does not like it.  He says he no more uses the left hand and uses the right hand for the left index finger has lost power to squeeze a trigger.

 

        In a most arduous and concentrated cross-examination plaintiff denied all the allegations against him denying, amongst other things, that he entered the disco for he had been stopped by security guards to do so.

 

        Dw2 sworn has said Pw1 was in a fighting mood and he was vulgar uttering expletives at them and they acted against him as they did to bring him under control sober as he was their aim being to seize the gun from him for safety and in the ensuing struggle Pw1 bashed against walls and before the gun was seized from him he had shot four times and trained policemen as they were they denied Pw1 the chance to shoot them.  Dw2 has also claimed Pw1 losing control of the gun fled to a nearby corner pleading with them he was no longer fighting and they had said to him theirs is to defend justice, life and property and they were to go to the Charge Office.  He says Pw1 bashed himself against the wall. The witness has continued the gun came to them by application of force.  He denies they assaulted Pw1. He also says Pw1 did not fall unconscious. The witness has also testified in warding off blows Pw1 hurt his pointing finger; again, there was a time when Pw1 jumped upwards and in doing so could have hurt his pointing finger.

 

        In cross-examination it turned out it was not put to Pw1 that he did not go to the window sill to collect his gun nor was it put to him that he insulted the police.  The witness has also testified Pw1 was handled toughly to overcome him.  Put to him what he is saying is not true for the truth is that they assaulted Pw1 and the reason he fell unconscious the witness has testified Pw1 fell unconscious the moment they left him and had not fallen unconscious in their hands and it was untrue he fell unconscious because they handled him toughly; in the same breath Dw2 chose to say Pw1 fell unconscious because they were handling him roughly.  Dw2 has not denied that it was in course of warding off blows that Pw1 hurt his pointing finger. He has also agreed a person roughly and toughly handled is likely to jump up thereby getting injured and suffering pain nor has he denied in consequence of tough handling Pw1’s finger has become disfigured and can no longer be used.

        Going through both Dw1 and Dw2’s evidence:

 

(1)         It has not been denied that injuries sustained by Pw1 were caused by them even if as claimed it was to protect justice, life and property.

 

(2)         Dw1 and Dw2 have testified they were called by Victoria Hotel in defence because Pw1 was rowdy; Pw1 has denied this and Victoria Hotel staff members or whoever solicited Dw1 and Dw2’s help has not been called to gainsay Pw1.

 

(3)         If true Pw1 was rowdy and posing grave danger at Victoria Hotel by shooting, there was evidence that his shells were collected and if so why were they not submitted to forensic test and exhibited and, in any event, shooting is a threat to life for which Pw1 should have been made answerable.

                            

(4)         Even if Pw1 had forced his way into the disco it was wrong to assault him (note there is no evidence he did) it was wrong to assault him under the guise of disarming him because his evidence that he left his gun on the window sill has not been denied Dw1 and Dw2 not being witnesses to the time when he left the gun on the window sill and, in any event, this court has not believed Dw1 and Dw2 on this score.  How can a court believe witnesses who found spent cartridges on the scene and fail to exhibit them?  Handle a suspect in tough manner and fainting disclaim responsibility?

 

(5)         “Ho tšoara motho ka thata” literally translated as handling a person toughly is a popular police term and no more than an excuse to use violence against suspects.

 

(6)         To some people seeing a soldier is like being face to face with a wild animal but certainly not to policemen for the two are birds of the same feather save that policemen are trained to be more civil.  Before me plaintiff did not seem that wild deserving a hue-and-cry he seems to have been subjected to as if he was a wild animal roused from its lair.

 

        In his submissions Mr. Putsoane at paragraph 10 of his Heads of Argument has said it was put to Dw1 under cross-examination that, since he was not at the disco when the call was made to the police Dw1 could not deny that plaintiff had handed in the gun as required … and Dw1 admitted it was so and I would say actually, the gist of the matter is that Dw1 could not deny that plaintiff had handed in the gun as was required and if he did how could he have threatened the disco staff with the gun?  Importantly, it is Dw1 and Dw2 who claim there was disorder, something the plaintiff has denied.  Mr. Putsoane has also submitted (paragraph 11) the question of whether the gun had been handed in when the police arrived is not very material as regards why the police went to the hotel as they went there because plaintiff was allegedly violent, unruly and refusing to hand in the gun.  If plaintiff was among other things refusing to hand in the gun how can the question whether the gun was handed in not be material for it was because of the gun that police were allegedly called? We suggest this as admission by Mr. Putsoane that it is a fact that plaintiff handed in the gun.  In any event that plaintiff was violent and unruly refusing to hand in the gun has been denied by plaintiff and the Hotel Staff plus security not having testified Dw1 and Dw2’s assertions are a weal link not to be believed.  

        In paragraph 14 of his Heads of Argument, Mr. Putsoane has alleged when police arrived they found plaintiff outside the disco where security personnel were not allowing him in.  Of significance is that the police found plaintiff outside and importantly, security personnel were not allowing him in and if so where and when was plaintiff violent and unruly?  Indeed it may be asked when plaintiff went into the disco and became rowdy for, if so, security personnel would have testified as to his unruliness and violence having ejected him from the disco or wherever he was unruly.  Plaintiff having been found outside the disco engaged in a conversation how can this court believe that plaintiff was rowdy quite apart from the fact that those claiming he was rowdy and unruly have not given evidence to be subjected to cross-examination?  Also, according to paragraph 16 of Mr. Putsoane’s Heads of Argument, it was Dw1’s testimony that they were shown plaintiff as the troublesome one and yet there is no evidence to confirm this.  Mr. Putsoane has also said plaintiff and defence versions are irreconcilable and as already stated, I am of the view plaintiff’s version was not denied considering when he left the gun at the window sill Dw1 and Dw2 were not present and not positioned to deny the allegation bearing in mind it is common cause that Dw1 and Dw2 found plaintiff outside the disco chatting to someone and not violent or unruly there being no evidence of plaintiff’s violence or unruliness.

 

        That plaintiff was unruly comes from Dw1 and Dw2 and not the Hotel Staff.  The Hotel Staff was available to testify and if their version was true there is no reason why they did not give evidence to have it tested.  We have already said that there was no evidence plaintiff did not want to hand in the gun for he testified he handed it in and his evidence was not negated by those present when he left the gun on the window sill evidence that he did not hand in the gun (if any) being secondary.

 

        Mr. Putsoane has said in his paragraph 27 of Heads of Argument that plaintiff testified he had visible weal marks at the back of his body which were caused by whipping and that there is no record of that in the medical report.  Mr. Putsoane is wrong for the doctor noted “bruises back” whether they are weal marks or bruises being a question of terminology.  He has also alleged in paragraph 28 of his Heads of Argument that if plaintiff’s finger got broken the report would have indicated severe force was used and moreover that there are no injuries commensurate with belabouring with sticks and we draw attention to the fact that medical report Exh. ‘A’ collectively has indicated degree of force inflicted was “considerable” as remarked above “mild”, having been cancelled.  As far as there being no injuries commensurate with labouring with sticks, here again the exhibit above shows cause of injury: “assault with sticks” once again it being a question of terminological implication.

 

        At paragraph 30 Mr. Putsoane has persisted in his mistakes claiming injuries sustained by plaintiff arose as a result of lawful execution of duties by police in trying to bring plaintiff to order and control and yet as we have shown above and a fact admitted by the defence, when Dw1 and Dw2 came on the scene plaintiff was outside the disco engaged in discourse with someone and it was in course of exchange of words with the police demanding a firearm from plaintiff that things went out of hand because, according to the defence, plaintiff was being disarmed and he was resisting this and not without cause in that in my view when the police came to plaintiff peace and quiet reigned and plaintiff was surprised why he was being disarmed in that the security was barring him from gaining entrance into the disco.

 

        I am of the view Dw1 and Dw2 came to plaintiff with preconceived ideas for when they found him all was well having been barred from gaining entrance into the disco.  Indeed when they found plaintiff with a gun or demanded it from him there was nothing at stake and in attacking and injuring plaintiff as they did Dw1 and Dw2 were defending nothing and I find as a fact that force used was uncalled for and exceeded limits.

 

        I agree with Dr. Mosito in his computation of quantum of damages and the claim is granted as prayed but to the effect that defendants pay plaintiff jointly and severally damages in the sum of:

                              

        (a)    M5,000.00 (Five Thousand Maluti) for assault;

        (b)     M3,000.00 (Three Thousand Maluti) for pain and                     suffering;

        (c)     M2,000.00 (Two Thousand Maluti) for loss of                            amenities;

        (d)    M5,000.00 (Five Thousand Maluti) for disfigurement                         amounting in all to M15,000.00 (Fifteen Thousand                   Maluti).

 

 

 

G.N. MOFOLO

PUISNE JUDGE

 

 

 

For the Plaintiff                :       Dr. Mosito KC

For the Defendants  :       Mr. Putsoane