Mokutlulu v Solicitor General and Others (CIV/T 221 of 80) [1983] LSCA 35 (29 April 1983)

CIV/T/221/80 IN THE HIGH COURT OF LESOTHO In the matter of : LEHLOHONOLO MOKUTLULU Plaintiff v 1. SOLICITOR GENERAL 2. TROOPER RAMOKOKA 3. TROOPER MONARE J U D G M E NT Defendants Delivered by the Hon. Chief Justice, Mr. Justice T. S. Cotran on the 29th day of April In this action the plaintiff, a man who said he was 53 (and appeared to me to be in his mid fifties) claims damages for assault from two police officers in the stock theft unit, defendants 2 and 3, and their employer (the Commissioner of Police), the Solicitor General(lst defendant) being nominally cited as the representative of the Government of Lesotho. The plaintiff had testified that on the 8th April 1978, at about dusk, two civilian messengers of Chieftainess Mankhala under whose jurisdiction he falls, came to his home, and told him he was required at her headquarters. He was handcuffed and taken there. That same evening he was interviewed by defendant 2 and defendant 3 in one of the chieftainess' premises who asked him whether he possessed a horse and two donkies and if so the place from where he had acquired them. He. answered that the horse was bought in the Orange Free State three years before and was registered by the chief who gave him a bewys to cover it, and the donkies were his own progeny their mother having been sold a short / w h i le -2- while previously. They asked him if he knew one Neku and he replied that he did not though he heard of the name. Then they asked him of the whereabouts of the horse of Mantaile, a fellow villager, and he replied he did not know either. It is clear from this short resume, and from the two defendants testimony that were suspecting plaintiff of having stolen, or being involved in the theft of, a horse or other animals and that he was denying any knowledge of having committed the crime or crimes. The plaintiff testifies that the two police officers, in the presence of another prisoner in the same room who had been arrested earlier, one Molefi Rasilimane, had. released the handcuffs before they began questioning him and when his replies were in the negative, i.e. denying knowledge of animals or theft, the handcuffs were put again one of them saying to the other "Fasten that dog so that he will be able to reply" and he was tightly handcuffed. What followed was a long story but the gist of it is this : after being told that they would make plaintiff excrete, they proceeded to hit him with fists and sticks on the face and all over his body causing him to bleed from the nose and ears, during which he was constantly asked about this or that person's animals. He was denied water and when he tried to help himself from a pot, the water was poured over his head. When both defendants got tired of assaulting him he was left in that room all night. On the following morning he was transferred to another, room in the chieftainess' premises; In that room he was in solitary confinement, though without handcuffs. During the day his wife and children brought him food but he was refused access to it. The chieftainess had called him during the day to her presence and he asked if she was aware of the manner that he, one of her subjects, had been treated the previous night. She said she had heard. He was returned to solitary confinement. At dusk defendant 2 and defendant 3 arrived with 3 other /prisoners - 3- prisoners one of whom was a certain Mojalefa. Defendant 2 and defendant 3 kept the others in another room and returned to plaintiff's room to continue his interrogation. He was handcuffed and assaulted. His handcuffs were then removed and he was ordered to strip naked and told to stand against the wall holding to the rafters. Defendant 3, using a stick, put it across his neck and pressed it whilst defendant 2 was kicking him with his boots. The stick broke. He was again handcuffed up his forearm and with a stick inserted in between, they twisted the handcuffs, causing one to break. A belt was used to throttle him. Defendant 3 exclaimed to defendant 2 that if they go on like that he (plaintiff) would not reach the camp (Hlotse) and he was given a temporary reprieve. He lost consciousness and when he came round he saw defendant 2 and defendant 3 sitting smoking on a bed. When he opened his eyes he stood up. Defendant 3, saying he thought they had killed him, kicked him and he (plaintiff) fell reeling under a table. Later that day they took him to Join the other prisoners and in the afternoon, he together with the other prisoners, were marched to Leribe camp. The plaintiff himself says he was handcuffed to Mojalefa and was made to carry a skin when his hands were aching and swollen. They reached Leribe on the 12th April and he was released to go back home on the 15th. No charges were preferred and he was never brought to trial. The two defendants deny the plaintiff's story in its entirety. On asked why the plaintiff should fabricate they suggested that as the plaintiff was out of work, after having been invalidated as a result of a mining accident, the purpose of the claim was to extract as much money from the State by concocting this story. The plaintiff admits he received a bad injury at the mines but this was to his back and not to his hands and arms and was still able to pursue farming. The plaintiff's evidence was impressive. The only fault /I find - 4- I find in it is that he probably exaggerated the extent of his injuries. The plaintiff's evidence of assault on his person is supported by two other prisoners who had been rounded up. The first was Moseo Mapetla (PW2). He confirmed seeing the plaintiff in the chieftainess prisoners' hut but says plaintiff was separated and confined to another hut only six paces away from his and the other prisoners. During the night Moseo says he heard cries of pain coming from inside the hut where plaintiff was confined and in the morning he saw the plaintiff with a swollen face; mucous and blood oozing from his nostrils and ears. He was still in handcuffs. He saw swelling and wounds below plaintiff's elbow. The other witness was Rasilimane already referred to who witnessed the earlier assault where the plaintiff was called to the defendants hut in the first instance when he was initially interrogated.. These two witnesses did not strike me as liars, on the contrary, there was no reason for them to lie. The plaintiff did in fact see a doctor (Dr. Makenete) but this unfortunately was a month later after plaintiff came from his home to consult lawyers. The report was admitted by consent and appears as Exhibit A. The report reads : " re: LEHLOHONOLO MOKUTLULU I have to-day examined the above. He has encircling skin bruises on both forearms with healing abrations. He has clawing of both hands more on the right indicating ulnar nerve weakness and slight weakening of the power grip of both hands. He has slight tenderness over both scapula but no external injuries are visible. The injuries of the forearms are very consistent with handcuffs pressures on or about 8th April, 1978 with some nerve injury which will probably recover completely after some 6 months. Date Stamp: 10th May, 1978. " Sgd. S. T. Makenete /When -5- When the case started in September 1982 the plaintiff (at the request of the Court) consulted Dr. Makenete again. The purpose was to find out, four and a half years after the event,if there was indeed complete recovery as the doctor had hoped or anticipated. This report, Exhibit B, was not copied and unfortunately the original was mislaid or lost, This necessitated another consultation on 14th April 1983. The plaintiff still' suffers from "clawing of the hands" and "weakness which are likely to become permanent" (Exhibit C ). On balance of probabilities the plaintiff discharged the onus placed upon him. The plaintiff claims M4000, M3000 for pain and suffering including M36 for medical treatment (excluding the cost of the last visit to the doctor) and M1000 for contumelia. The question of assessment of damages is always a- difficult problem. The plaintiff was in fact disabled from an accident in the mines before the assault on him by the defendants. It is therefore difficult to say how much he suffered by way of loss of amenities, but he was able to earn a living as a farmer and his hands are now impaired. No doubt he cannot plant and sow with the same ease as before. I award M1500 under this head. I think he is also entitled to damages for loss to his dignity. He was badly treated and since no charges were preferred against him, it must be assumed that he was innocent of the crime which the defendants suspected him of committing. I would award him M250 for contumelia. The total amount would thus be M1750 which would include the amount claimed by him for medical treatment. The defendants will also pay his taxed costs, For Plaintiff : Mr. Sooknanan For Defendants: Mr. Mafisa CHIEF JUSTICE 29th April,1983