CIV/T/284/84
IN THE HIGH COURT OF LESOTHO
In the matter of:
'MATSOTLEHO LEKHOLO Plaintiff
and
'MAKALI LETSIE 1st Defendant
'MANYANE LETSIE 2nd Defendant
'MALETSIE LETSIE 3rd Defendant
JUDGMENT
Delivered by the Hon. Acting Mr. Justice M. L. Lehohla on the 29th January, 1987
Duly assisted by her husband to whom she is married under customary law plaintiff issued summons against the three defendants, the first two being the daughters of the third, for :
the sum of M5,000.00 damages for pain, suffering medical and incidental expenses as also contumelia,
costs of suit,
further and/or alternative relief.
The defendants are sued jointly and severally the one paying the other to be absolved.
In her declaration the plaintiff has set out that on 31st January 1984 at the Bus Stop near the Market place Maseru, the defendants assaulted her by biting her on the finger, ear and cheek. She further set out that
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as a result of the said assaults 1st and 2nd defendants were convicted by the Magistrate's Court in Maseru and sentenced each to a fine of M60.00 or 6 months' imprisonment.
She further says she had to undergo medical treatment as a result of the bodily injuries caused by the defendants' wrongful and unlawful assault. She alleges that she suffered substantial pain and suffering as well as contumelia as a result of the assault on her executed in the presence of the members of the society/among whom she worked.
The action was opposed by all three defendants. In response to the request for further particulars filed by the defendants, plaintiff
stated that it was the 2nd defendant who
bit her on the left third finger which was not amputated.
She also stated that it was the 1st defendant who bit off her right ear lobe. She further stated that the 1st defendant also bit her on the right cheek which has since recovered.
Plaintiff also indicated that she underwent medical treatment on 31st January, 1984 at Queen Elizabeth II for injuries sustained from assaults by defendants. She further stated that a medical report was attached. However it emerged from evidence that documentary proof of her treatment went missing and could not be recovered from papers entrusted with her then attorney of record Dr. Tsotsi. But because both counsel in the present proceedings have had cause to refer frequently to the criminal proceedings in the Magistrate's Court and because a copy thereof was made available to me I have consequently had cause to refer to it and in it I discovered that the Report on injuries consists of:-
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" Human bite : missing - of the outer ear.
Laceration below (R) eye and the last laceration on finger third (L)" '
I have read that the injuries were caused by "human bite" and that the degree of force used is said to have been considerable and that however the patient was not admitted; a factor used by Mr. Khauoe in closing addresses to in-dicate that the claim based on this head ought at best to be reduced.
Plaintiff in complying with the request to state Clearly how the sum of M5,000.00 is made up supplied her answer in the form set out below:-
Past medical expenses ... ... ...... M 50.00
Future medical expenses . ... ... ... M 90.00
Loss of Income past .. ... ... ... M1,500.00
Future loss of income ... ... ... ... M2,360.00 .
Pain and suffering and disfigurement ... M1,000.00 M5,000.00 "
In their plea the defendants deny that they assaulted plaintiff and further state that 'Makali Letsie the 1st , defendant was also injured by the plaintiff on the scalp and sustained a wound which had to be stitched by a doctor.
They further concede that even though plaintiff underwent medical treatment they deny liability for the injuries suffered by her
because:-
" The assault was "not" wrongful or unlawful in that the action was in self defence." . ...
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" The injuries sustained by plaintiff were minor confirmation thereof being that the plaintiff was not hospitalised.
Defendants deny in toto the plaintiff's declaration that she "consequently suffered substantial pain and suffering as well as contumelia "and put her to proof thereof as well as assert that her claim of items enumerated under para 7(a) and (b) are exaggerated as a result of being based on exaggerated pain and suffering.
The minutes of the pre-trial conference are very brief and seem to have done very little by way of shortning proceedings in this trial. The only and scarcely helpful achievement they made was the admission of the names and identities of parties to these proceedings a matter that to me does not seem to have required the holding of a pre-trial conference to resolve.
Otherwise matters not admitted in the pleadings were accordingly referred to trial.
In the medical report submitted by 1st defendant as Exhibit "B" it is revealed that she was examined on 1st February 1984 for injuries sustained in a fight. Of importance was confirmation by her doctor that her pregnancy was not harmed. However the medical report showed that she had a scalp wound which was stitched at Queen Elizabeth II Hospital (hearsay) and that she had pains on the sides of the body including some undecipherable mackle consisting of two words preceded by the phrase "there were no" concluded in the word "then".
The evidence led by plaintiff is to the effect that on 31st January 1984 she was at the market place for the
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purpose of selling peaches. While there at about 5.00 p.m. the three defendants came to her in the following order:- 1st, 3rd and 2nd defendants. Then the 1st defendant stood opposite,plaintiff and uttered these words:- "my mother can be tormented butt not by these "likhohloana""meaning ill-bred stripplings." She uttered that expression three times whereupon P.W.2 'Mants'asa Nts'asa a matronly lady in her late 60s who has been living apart from her husband for. upwards of 30 years entered the lists and addressing herself to 1st defendant said "Hey you strippling, who do you say is a strippling?" The 1st defendant replied that she was not referring to P.W.2 but rather to this one pointing at the plaintiff who was sitting with her nephew on the buck of the bakkie. Indeed plaintiff says when 1st defendant uttered these words she was looking at plaintiff whereupon she said if 1st defendant was referring those words to her she (1st defendant) is a strippling. P.W. 2 in re-examination explained that the word "serathana" is an ill-fed little child whereas the word sekhohloana is a young child whose mother fell pregnant while that child was still at suck. I thus have no doubt that it is an insolent word to refer to anybody.
After plaintiff had retorted thus to 1st defendant the latter hurled a mug at her but because she ducked otherwise took avoiding action the mug flew wide of the
target.
Plaintiff then meaning to run away as she realised that the defendants were bent on a violent set-to at her took off one of her shoes to avoid tripping on landing from the bakkie. Her shoes are what are referred to as pencil heeled shoes having rather high heels.
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Before she could take off the other shoe the defen-dants had closed in on plaintiff. Finding herself thus hemmed in with no possible avenue of escape from the defendants and while 1st defendant was trying to grab at her plaintiff hit her with the shoe she was holding. However the other defendants managed to grab plaintiff and pulled her off the buck of the van to the ground.
Immediately thereafter 2nd defendant bit plaintiff on the 3rd finger of her left hand while 1st defendant bit her on the cheek and immediately thereafter on the ear. Plaintiff was overpowered by the defendants because they were many and she could not break free of their grip.
P.W.3 Pitso the plaintiff's husband came while 1st . defendant had her teeth fast stuck in her ear. In his attempt to separate 1st defendant from plaintiff P.W.3 was horrified to notice that part of plaintiff's ear was removed as it was stuck between 1st defendant's teeth. Much blood flowed from plaintiff's finger and cheek. She was sent to the dispensary for treatment. She swore that her injuries on the ear and finger underwent treatment for six months.
She testified that she does not have full use of her finger. Her occupation is to knit jerseys. She testified that for knitting she used both hands but mostly the left and that before receiving the injury on her finger she produced between two and three jerseys per day. But since being injured and taking a spell of six months from then as she spent it recovering she barely manages one jersey or even less per day.
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Before receiving the injury on her finger she would collect M100 from her husband who used to sell the jerseys for her. She estimated that during the six months of her recovery she may have lost M1,500 of her earnings. To date which is about 11 years after the injury exclusive of the six months of her inaction she estimates that she has lost about M6,000.00.
The plaintiff testified that she did not provoke the attack on her. It took place at the specific place of her work. The mug had been thrown at her and she was dragged to the ground by the defendants.
She submitted as her reason for including the 3rd defendant the fact that 3rd defendant was holding plaintiff's shoe and waving it about to hit and prevent people who were trying to intervene on her behalf. However P.W.3 who came to intervene was not hit by 3rd defendant. At the Magistrate's Court where 1st and 2nd defendants were being charged with assault on plaintiff they alleged that plaintiff had alleged that they were in love with her husband. They did not allege that plaintiff was the attacker justifying their action to defend themselves. Under cross-examination it was put to her that 2nd defendant never said plaintiff alleged either she or 1st defendant was in love with her husband.
Reference to the record of depositions at Magistrate's Court shows that 2nd defendant never said plaintiff alleged that she was in love with her husband.
It was also revealed that on 28th May 1984 plaintiff was examined by Dr. Phooko whose report showed all the wounds had healed. However
plaintiff insisted that she still had
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to go to Queen II hospital because of the discomfort suffered due to her injuries. She testified that even as of 28th May 1984 her ear was being,treated with smearing lotions prescribed by Queen II even after she had been to Dr. Phooko.
Plaintiff said 3rd defendant did not hit her nor does she know or is she aware of anything that prevented her from hitting her. However she said she saw 3rd defendant hitting an intervener. The Magistrate's Court record does not suggest that plaintiff complained of 3rd defendant's conduct. Asked about this she said other defendants facing the charge never asked her about their mother. However she insisted that in her evidence in chief she told the magistrate that 3rd defendant hit a potential intervener and suggests that the magistrate did not record this portion of her evidence. Nonetheless she said the magistrate recorded correctly her statement in the Court a quo.
Plaintiff said she failed to point out that she was assaulted with a stone on the cheek because no question was put to her to enable her to point out this fact. However when it was pointed to her that her Counsel had asked her what other injuries she had sustained and that she never mentioned use of stone she conceded she could not reasonably account for her failure. She further said that she did not mention this fact before this Court because she did not mention it at Magistrate's Court. In truth plaintiff did not mention use of stones in Magistrate's Court.
Plaintiff said she failed to send her finger for further medical treatment or therapy after June 1984 because she had no money.
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She also asserted that her hearing is no longer normal since receiving the assault. She cannot hear unless one shouts at her. This has caused tremendous strain on relations between her and her husband. She is so embarrased by the cut on her car that she has to wear her doek in a manner that ensures that the cut is covered and thus hidden from view.
From January to June 1984 she could not knit jerseys from her station because she was not working then on account of sickness. She could not sell peaches either because of the same reason. She cannot recall how many finished products her husband sold for her nor say how many she had remaining in her stock because she had handed her book containing these recordings to Dr. Tsotsi who misplaced them.
It was put to her that it was very strange that despite her failure to hear properly since receiving injury on her ear she never told any doctor about this problem even though she wanted her hearing to be restored. She suggested that she expected the doctor to diagnose this inability to hear without being told.
Plaintiff denied that she entered a quarrel between P.W.2 and 3rd defendant and insulted the latter.
She said the degree of her disfigurement is so great as to warrant M1,000.00 damages.
To the question put to her finally regarding the fact that plaintiff presently requires no damages for future medical help because Dr. Phooko shows that she is healed she conceded by saying "I don't."
Under re-examination she said she could not go to Bloemfontein for therapy because she was unable to raise
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the M95 required for that purpose.
P.W.2 Mants'asa Nta'asa did to a large measure corroborate P.W.1 as to the events of that day. She testified that she saw defendant 1 approaching P.W.1 who was sitting at the back of her van stationed four paces from her own. Defendant 1 uttered the words complained of and P.W.2 asking inquired by referring them to her whether defendant 1 was calling her a strippling. Defendant 1 said she was referring those words to P.W.1 who retorted and referred those words to defendant 1. There and then 1st defendant hurled a mug at P.W.1 who dodged it. Then 1st and 2nd defendants grabbed at P.W.1 and led her where they came from. When plaintiff got down from the van she hit 1st defendant on the forehead with the heel of a shoe.
A short while after being careered from the immediate vicinity plaintiff screamed and P.W.2 came following. Her approach to the place where 1st and 2nd defendants had engaged plaintiff in a set-to was obstructed by 3rd defendant who was waving plaintiff's shoe against whoever was trying to intervene. She testified further that at the time 1st defendant was biting plaintiff's ear while 2nd defendant was biting her above the cheek. A girl who had been sowing nearby rushed to the scene only to be slammed between the shoulders with a shoe by 3rd defendant.
Before the words complained of were uttered P.W.1 had not said anything to defendants.
Asked if in the Court a quo she did not include the finger among injuries she observed she replied that she was not asked about the finger. She said she mentioned an injury on plaintiff's elbow. The record does not however make
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reference to an injury on this elbow. She was surprised that P. W. 1 never mentioned any injury on the elbow.
Asked whether she is aware that the doctor showed that injuries were on the right ear and cheek and therefore could not have been inflicted simulteneously she said that was possible. She said 2nd defendant bit plaintiff on the right cheek and she saw her. She said she was not surprised that the victim of the assaults said the injury on her cheek was inflicted by 1st defendant because "As she was being fought and screaming she could not have seen,"
Confronted with the question put to her in the Court a quo, by second defendant namely "Did you say I bit P.W.I on the cheek or on the finger - ?" She replied "I remember that question" "What was your answer - ? That I saw you bite her on the cheek." "But you are not telling the truth again. You said on the finger - ? No I did not say so." Needless to say the record of the Court a quo shows on page 5 that P.W.2's answer to defendant 2's question "Did you say I bit P.W.1 on the cheek or on the finger" was "on the finger."
Again she denied saying to the Magistrate that she did not notice if 2nd defendant bit P.W.1 but rather saw her bending over her. Again in her evidence in chief in the instant case P.W.2 said 3rd defendant did not hit her because she took avoiding action by moving backwards but under cross examination she said 3rd defendant hit her. The record had to be read back to her and she took shelter under lack of memory.
From this point P.W.2's evidence is not anything but muddled; contradicting not only her previous statements in the Court a quo but her own evidence in chief and evidence
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given by her own self under cross-examination including P.W.1's evidence in the present proceedings.
She denied that the source of the quarrel between herself and 3rd defendant or the involvement of defendant 3 in the earlier encounter
was that defendant 3, had been asked by P.W.3 to sweep for him where his stand was. Even though P.W.1 says this was the case P.W.2 says P.w.1 was not there. She denied that in the Court a quo she said P.W.1 threw the shoe at 1st defendant. Yet on page 4 of the record in that Court that is what,she said..
It,is due to P.W.2'9 evidence that to a large measure it became necessary to free 3rd defendant from liability.
P.W. 3 is plaintiff's husband a layman of the illeterate variety. He corroborated,his wife's evidence. He is the one who separated,defendant i from P.W.I and in the process P.W.1'3 portion of the ear remained stuck between 1st defendant's teeth. As he approached the scene he saw defendant 2 coming from the direction of the fight and when almost opposite him she spat out some blood. I did not . think it served much purpose to subject him to intense cross-examination about calculations because he was illeterate. All in all his evidence was tolerably good.
Evidence for the defence was given by 1st defendant and 2nd defendant.
1st defendant said plaintiff had a, stand from which she sold peaches a few paces from her own. On 31st January 1984 1st defendant went to work as usual. She saw,3rd defendant sweeping the place where P.W.2 works. This place, was used by P.W.3 as well. P.W.2 asked 3rd defendant why she swept that place and was replied that it was in
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compliance with P.W.3's instruction whereupon P.W.2 swore at her and called her an old witch. There and then P.W.1 entered the lists. 2nd defendant was not there when P.W.1 entered the quarrel. P.W.1's husband was called by defendant 3 while P.W.2 remained swearing at her within defendant 1's hearing. P.W.3 came and explained that he sweep had asked defendant 3 to sweep the place in question and left. Immediately thereafter P.W.1, raised an objection to the effect that 3rd defendant talks to her husband but not. to her and hurled abuse at 3rd defendant saying of her "You have this sort of habit you devil of an old woman.". Defendant one did not feel obliged to stand by when her mother was thus being abused. Then the exchange of abusive words relating to "sekhohloana" took place except that an additional factor was brought into scale namely that P.W.1 is alleged to have said to defendant 1 "If you say I am sekhohloana, sekhohloana is your mother," further that defendant's mother's front passage was referred to abusively by P.W.1 who did not mince her words but rather laid emphasis on what woman she was referring to by saying "this very one with whom you defendant 1 are walking about."'
Defendant 1 wants the court to believe that defendant 2 was not engaged in the fight. She concedes that at the time she threw the mug at P.W.1 she was in no danger of any attack from P.W.1. She said she fought P.W.1 because the latter had sworn at her mother. Asked what her mother did when being sworn at she said she did nothing. Asked why she did not follow her mother's example and go and fetch someone to reprimand P.W.1 for swearing at her mother defendant 3 said she was angry.
Confronted with the statement she made in the Court
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a quo about the source of the fight, namely that P.W.1 said 1st defendant was in love with her husband 1at defendant conceded. She also conceded that in the Magistrate's Court she said she, bit P.W.1. on the ear and cheek and said . she still adheres to that statement. Much as defendant 1 was trying to protect defendant 2 by saying she was not at the scene of the fight till its very tail end, however; she was placed in a cleft stick when it was pointed out to her that in giving evidence in the Court a quo at page El defendant 2 said she was there and she said her mother should not be insulted by P.W.1 for the two are not equals. Defendant 1 conceded this point. Needless to say defendant 2's testimony in that Court shows that she was not only there but she participated in the fight for what she felt was a just cause, namely intervention on her mother's side lest her mother be abused with impunity in her own presence. She bit P.W.1 on the finger. There is no reason why she could not cross-examine P.W.1 on the point if she did not in fact bite her as P.W.I alleged.
' In the light of what was revealed concerning defendant 2's testimony in the Court a quo much of her story in this Court is mere fabrication and an attempt to minimise her role in the unlawful attack on P.W.1.
At page 9 of the Magistrate's Court her final answer to the prosecutor's question about gives a coping-stone to the entire edifice of her falsehood in the present proceedings: "Is it correct that you were not there when the fight started - ? I was there." In this Court she said she was not there when the fight started. She further made an attempt to show that contrary to P.W.1's statement that she was not producing any jerseys during the period
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of her six months' recovery, P.W.I was producing newly knit jerseys.
Because of the foregoing I have rejected the 1at and 2nd defendants' defences. 3rd defendant is freed from any liability and is awarded the coats.
Much as plaintiff has not been able to produce expert evidence regarding various items in her claim I have formed a firm opinion that she was truthful! Plaintiff is of apparent age of 38,/is/aelf-employed,but is not a sophisticated woman.
I have taken the view that the attack on her was unprovoked and unlawful. Indeed she did hot do much by way of adducing expert evidence or even employ means of effectively mitigating damages. However I have come to the conclusion that plaintiff has nonetheless proved her case on the balance of probabilities.Regard being had to the fact that she is not a sophisticated lady and that her marriage to an illiterate husband does not put her any near the position to live up to the standard of reaction expected from a sophisticated married couple, and the fact that there is a high degree of probability that she failed to have her injuries attended to by physio-therapists and -specialist surgeons because of inability to make ends meet, I conclude that the little that she did by way. of continuing to knit jerseys albeit her production was much reduced la sufficient to show that she did in fact do something to mitigate damages. decided to give effect to that recognition.
Consequently she is awarded damages as follows:-
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past medical expenses in the amount of M 50.00
(b), future medical expenses in the amount . of................................. M 75.00
loss of past income in the amount of M 900.00
future loss of income ................. M1,950.00
pain and suffering disfigurement and contumelia...............___......... M 500.00
Total M3,475.00
See : Henning vs South British Insurance. Co.. Ltd. 1963(1) S.A. 272. Hollond vs Bendix in the quantum of damages 1969 at page 356. Bay passenger Transport Ltd vs Franzen 1975(1) S.A. 269. Also : Bell vs De Villlers 1970 Vol.11 : Quantum of damages at "385.
M. L. LEHOHLA
ACTING JUDGE
29th,January, 1987
For the Plaintiff : Mr. Monyako
For the Respondents : Mr. Khauoe
