CIV/T/37/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

MASAPO
KALAOANE Plaintiff

V

SEMAMELI
TUKE 1st Defendant

FOLAE
PALI 2nd Defendant

MOTIKI
LETSEMA 3rd Defendant

LEPOTA
LETSEMA 4th Defendant

LEBAMANG
TUKE 5th Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 2nd day of March, 1987.

Plaintiff
herein claims against the defendants jointly and severally payment of
M17,250 as damage resulting from the assault and
the injuries they
have inflicted upon him. Although they were duly served with the
summons on 4th March, 1984 the defendants have
not filed appearance
to defend this action which accordingly proceeded uncontested.

In his
evidence Plaintiff told the court that he was a self-employed tailor.
On 5th July 1981 he impounded 5th defendant's horse
which was
trespassing in his maize field. As he was driving the horse from the
field the defendants arrived. 1st defendant then
told him to stop so
that they could have a chat. He complied. 1st defendant asked him
where he was taking the horse to. He replied
that he was impounding
it for damaging his crops.

The
defendants then started throwing stones at the Plaintiff. One of the
stones landed on his head when he

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fell to
the ground. He apparently lost consciousness and the next thing he
found himself tied up with ropes. He was then escorted
by the
defendants to a village called Letimala where he was left at a kraal
while the defendants went to buy sesotho beer from
one of the houses.

According
to the Plaintiff, on the way to the village the defendants had
brutally assaulted him with sticks and sjamboks all over
the body.
After drinking the sesotho beer 1st defendant escorted him to a place
higher up the village where he hit him a blow on
the nose with a
sjambok. As a result of the assaults Plaintiff sustained multiple
injuries viz, a wound on the nose, a wound behind
the right ear, two
wounds on the back of the head, several bruises end he had one of his
fingers cut.

Plaintiff
told the court that after they had come to the village of Letimala
his wife also arrived in the company of a certain teacher
by the name
of Phoka. 2nd defendant then escorted him to the house of the 1st
defendant on the latter's instructions. On the way
he, however,
managed to take out a knife with which he cut the rope that was used
to fasten him and ran away. 2nd defendant chased
him on horseback.

During
the chase plaintiff turned round and stabbed 2nd defendant who fell
to the ground. He took the horse that was used by his
wife and raced
home with 1st defendant and others chasing him. At home Plaintiff
locked himself in his house from where one Mashabela
and another
later conveyed him in a vehicle to Mokhotlong hospital. He was
hospitalised for a month The medical doctor made him
a report which
he (Plaintiff) handed in as exhibit "A" in this trial.

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According
to the medical report Plaintiff was referred to a doctor by the
police in Mokhotlong on 5th July 1981. The medical examination

revealed only the following injuries: two (2) sculp wounds, abraision
on the knee, amputation of the tip of the 4th finger of the
right
hand and a haematoma on the right scapula. From these findings the
medical doctor formed the opinion that the degree of force
applied to
inflict the injuries on the Plaintiff was savage The injuries
sustained were, however, not dangerous to life. The decree
of
disability was also of a light or moderate nature.

It
appears on 11th August 1981 Plaintiff was again examined by the
medical doctor when it was noted : "Tip of finger missing
and
still not healed on 11th August, 1981". According to the medical
report there is no indication that Plaintiff was ever
hospitalised
for a month on 5th July. 1981.

Be that
as it may, Plaintiff testified that as a result of the assaults and
injuries inflicted upon him by the defendants he suffered
damages for
loss of earnings in the amount of M6000, for pain and suffering in
the amount of M8000, for medical expenses in the
amount of M250, and
for contumelia in the amount of M3000,

As
regards the loss of earnings it is to be observed that Plaintiff's
evidence that he was hospitalised for a month and therefore
unable to
carry out his business of tailoring is not borne out by the medical
report. Assuming he was hospitalised for a month
as he wishes the
court to believe Plaintiff's evidence does not disclose how much he
was earning a day, a week or a month so as
to arrive at a figure of
M6000 claimed in the summons under this heading.

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Likewise
no receipt has been produced to support Plaintiff's claim of M250 as
medical expenses. On the contrary the medical report
gives the
impression that on 5th July 1981 the police referred Plaintiff to
Mokhotlong Government hospital for medical treatment
and there is no
indication that any fees were charged.

In my
view the onus is on the Plaintiff to prove on a balance of
probabilities, that he has incurred damages under the abovementioned

two headings. He has not, in my opinion, satisfactorily discharged
the onus that clearly rests with him. Consequently I am unable
to
award him any damages for loss of earnings and medical expenses.

Regard
being had to Plaintiff's evidence and the medical report there can be
no doubt that Plaintiff was assaulted and some injuries
inflicted
upon him on 5th July 1981. Assuming the correctness of his evidence
that Plaintiff was assaulted and injured for impounding
a horse that
had been trespassing in his maize field and the assault continued
even after he had been tied up with ropes it seems
to me that the
assault was totally uncalled for and therefore unlawful.

If a
comparison is made between his evidence and the medical report
regarding the injuries sustained it may be Plaintiff has somewhat

exaggerated, especially on the number of injuries inflicted during
the unlawful assaults. However, there can be no doubt whatsoever
that
the assault on the Plaintiff was so brutal that he sustained, inter
alia, two (2) scalp wounds and lost a portion of one of
his fingers.
That being so, he must have suffered a lot of pain for which he is
entitled to an award of damages.

If
Plaintiff ( a married man) was tied up with ropes

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and
beaten up as described in the evidence there is no doubt in my mind
that he suffered contumelia for which I am again prepared
to award
him damages.

The
amounts of M8000 and M3000 as damages for pain and contumelia,
respectively, are however crossly inflated and in my view justice
of
the case will be met by awarding him a total of M2000 under the two
headings.

Judgment
is accordingly entered for Plaintiff in the amount of M2000 plus
costs

JUDGE,

2nd
March, 1987

For
Plaintiff : Mr. Pheko

For
Defendants : In Person