Nkaota v Makhasane (CIV/T 235 of 86) [1989] LSCA 9 (13 February 1989)

CIV/T/235/86 IN T HE H I GH C O U RT OF L E S O T HO In the matter of: KHAUHELO NKAOTA Plaintiff v MOETI M A K H A S A NE Defendant J U D G M E NT Delivered by the Hon. Mr. Justice Sir Peter Allen on the 13th day of February 1989 This is a claim for damages for assault which w as alleged to have occurred in November 1985 near Ha Ramoholi in Qacha's Nek D i s t r i ct At that time the plaintiff (PW1) was a 25 years old mine worker and the d e f e n d a nt was a 29 years old butchery p r o p r i e t or The plaintiff was visiting or staying with his father Palo Nkaota (PW2) in the village of Ha Matee which is next to the defendant's village of Ha Ramoholi. Apparently on 23 November 1985 the plaintiff and his wife had quarrelled and she had run away. According to the plaintiff and his father (PW2) they both went to look for her and, at around d u s k, they went to the house of one M a m o t e b a n g, the sister of the plaintiff's w i f e, in But while the course of their s e a r c h. She was not there /there - 2- t h e re they saw a man s t a n d i ng in the s h a d ow of a wall of the h o u se with a b l a n k et around his h e ad The p l a i n t i ff asked him who he was s t a n d i ng t h e re in a d a rk p l a ce and m a n, who in fact was t he d e f e n d a n t, r e p l i e d, "If you w a nt was the to know you can f o l l ow me " The p l a i n t i ff and his f a t h er then left the p l a ce a n d, a c c o r d i ng to t h e m, this a p p a r e n t ly small and i n s i g n i f i c a nt i n c i d e nt a m o u n t ed to w h at they called a q u a r r el and r e s u l t ed in the later a s s a u lt of the p l a i n t i f f. I find it very d i f f i c u lt to b e l i e ve The d e f e n d a n t 's v e r s i on was that it h a p p e n ed in the d ay t i me not at d u sk and t h a t, when the p l a i n t i ff asked him who he w a s, the d e f e n d a nt r e p l i e d, "How can you ask me who I am d u r i ng the day t i m e ?" He added t h at the p l a i n- tiff was v e ry d r u nk at the time and that he tried to stop the d e f e n d a nt from w a l k i ng away by s t a n d i ng in f r o nt of him. But the d e f e n d a nt m e r e ly walked around him and w e nt home, The d e f e n d a nt said that he did not speak and did not t a ke o f f e n c e. He left the p l a i n t i ff u t t e r i ng " s c o l d i n g" w o r ds as M a m o t e b a ng and o ne called Lokali a r r i v ed at the p l a ce He said he did not m e et the p l a i n t i ff again t h at n i g ht and did not a s s a u lt him. A c c o r d i ng to the p l a i n t i ff and his f a t h er ( P W 2 ), the p l a i n t i ff was not d r u nk and both men s w o re t h at they never t o u c h ed a l c o h ol of any sort at any time They both said that it was d a rk by the t i me they started to w a lk back home but t h e re was b r i g ht m o o n l i g ht and they could see well. On the way Palo ( P W 2) w e nt to a r i v er to r e l i e ve h i m s e lf and the p l a i n t i ff waited or p r o c e e d ed slowly. As /Palo ... - 3- Palo left the river and started to catch up with the p l a i n t i f f, the d e f e n d a nt appeared from the o p p o s i te direction. He was carrying a panga and, w i t h o ut a w o r d, he aimed it at the p l a i n t i f f 's head and cut his cheek below the left eye and he fell u n c o n s c i o u s. Palo (PW2) said that he was then about five paces away from them and he recognised the d e f e n d a nt whose head was uncovered He asked him, " M o e t i, why are you hitting the child?" and the d e f e n d a nt r e p l i e d, "If you are like him you are Q. K. too " Palo said that he seized the d e f e n d a n t, holding him around his w a i s t, and they struggled and Palo slipped and fell down The d e f e n d a nt then ran back to the p l a i n t i ff and cut him with the panga on the head once again The plaintiff had been crawling on his hands and knees but he fell p r o s t r a te when cut again; Palo raised an alarm and someone called Moholi came and the d e f e n d a nt ran away This Moholi was not called as a w i t n e ss Palo said that he helped the plaintiff to his feet but that he (Palo) then felt tired and he sat down. The plaintiff walked away alone with some flesh hanging from the left side of his f a ce Palo said he saw f o ur teeth on the ground The p l a i n t i ff was bleeding p r o f u s e l y. A c c o r d i ng to the plaintiff he fell u n c o n s c i o us after the first blow and woke up in hospital. He said nothing of walking away from the s c e n e. But it appears that he did so b e c a u se an old woman aged about 70 y e a r s, M a m p a le T s a n y a ne (PW3) testified that he walked to her house on that night in /the condition ... - 4- the condition already d e s c r i b ed above She went to call the v i l l a ge h e a d m a n, R a l e k o a la M a k o ae ( P W 4 ), who was even older than she When they both came back to her house they found the p l a i n t i ff lying on the f l o or in a pool of b l o od He was m u t t e r i ng and trying to s p e ak M a m a p a le t h o u g ht he said something like "shoo-shoo": Ralekoala told M a m a p a le that he believed he heard the p l a i n t i ff say " M o s i u o a" which was the name of the headman's son R a l e k o a la claimed to be hard of h e a r i n g, but he did not e x p r e ss any s u r p r i se w h a t e v e r, either then or in C o u r t, at hearing his son's name m e n t i o n ed in such c i r c u m s t a n c es A p p a r e n t ly his son Mosiuoa was a t t e n d i ng a f e a st at the home of someone called Nkoko on that n i g h t. I have to point out that some of the t e s t i m o ny of this old man Ralekoala was d i s c o n n e c t e d, c o n t r a d i c t o ry and i n c o n s i s t e nt and consequently not always very r e l i a b le But p i e c i ng t o g e t h er what the various w i t n e s s es said about the sub- s e q u e nt e v e n t s, it appears that Palo did not a r r i ve at the old woman M a m a p a l e 's house until after she and the headman got there. When Palo did arrive it seems that he said nothing about the d e f e n d a nt being the one who had assaulted his son A c c o r d i ng to M a m a p a l e, Palo said n o t h i ng at all. She d e s- cribed him as being silently f u r i o u s. All he did was to obtain t r a n s p o rt and then he took the p l a i n t i ff to M a c h a b e ng Hospital in Qacha's Nek In Court Palo insisted that he /did - 5- did tell the headman that night about the d e f e n d a nt being the a s s a i l a n t. But Ralekoala himself did not agree In his t e s t i m o ny he s a i d, "That night I heard as if my son was r e s p o n s i b le for the a s s a u lt " He added that when Palo returned from the hospital later the next m o r n i ng he told the headman ( R a l e k o a l a) that he had obtained e v i d e n ce that the person who had injured his son was the d e f e n d a nt and that he was present when the d e f e n d a nt assaulted the plaintiff. If that was so, it would tend to corroborate the old woman Mamapale's (PW3) testimony that Palo did not say anything about the d e f e n d a n t, or any other a s s a i l a n t, while they were in her house that night with the plaintiff lying bleeding on the ground. F u r t h e r m o r e, the headman R a l e k o a la w as so convinced that his son Mosiuoa had been accused of the a s s a u l t, that he sent m e s s e n g e rs to fetch Mosiuoa from the feast to explain himself. At first in Court R a l e k o a la said that when he confronted his son M o s i u oa about the m a t t er he said that he had never left the feast that n i g ht Ralekoala added t h a t, as a r e s u l t, he was satisfied that he was i n n o c e nt H o w e v e r, later in his t e s t i m o n y, R a l e k o a la contradicted this and said that he called for his son and detained him and later handed him over to the police who arrested him If he did that it does not appear that he in fact believed in his i n n o c e n ce In addition Ralekoala said that after Palo had later accused the d e f e n d a nt of being the a s s a i l a n t, he waited for three days before informing the police that the d e f e n d a nt was a s u s p e c t. He did not explain this /peculiar ... - 6- p e c u l i ar delay but it seems to indicate that he still believed that his son M o s i u oa was the real a s s a i l a n t. The plaintiff stated that he knew n o t h i ng of this but that he made a s t a t e m e nt to a police o f f i c er who came to see him later in hospital and that he told the o f f i c er that it was the d e f e n d a nt who assaulted h im He a d d e d, h o w e v e r, that the d e f e n d a nt was not arrested until he had been d i s c h a r g ed from hospital four weeks later. The d e f e n d a n t 's v e r s i on was t h a t, on the day a f t er the i n c i d e n t, his chief told ten of the v i l l a g e r s, i n c l u d i ng the d e f e n d a n t, that they w e re required to r e p o rt to chief R a l e k o a la at his v i l l a ge b e c a u se of an alarm which had been raised t h e re On the way t h e re they met p e o p le who told them of a place w h e re t h e re w e re b l o o d s t a i ns on the path and they w e nt to look at it At the v i l l a ge they found Ralekoala (PW4) with P a I o i ( PW 2) and o t h er p e o p le R a l e k o a la told them of the incident and of hearing his son M o s i u o a 's name spoken by the p l a i n t i ff and added that when R a l e k o a la asked the p l a i n t i ff which M o s i u oa he m e a n t, the p l a i n t i ff r e p l i e d, " y o u r s ", p r e s u m a b ly m e a n i ng his son W h i le R a l e k o a la was relating this the p l a i n t i f f 's f a t h e r, Palo ( PW 2 ), was p r e s e nt and remained s i l e n t. Then M o s i u oa arrived and was questioned by his f a t h e r, but he denied any k n o w l e d ge of the incident saying that he was at N k o k o 's all of the p r e v i o us night, R a l e k o a la told M o s i u oa to stay t h e re as he had sent for the p o l i c e. The rest of the p e o p le i n c l u d i ng the d e f e n d a nt d i s p e r s ed and he said that on the way he saw the police coming to the s c e n e. T h e re was no e x p l a n a t i on of why R a l e k o a la had sent for the ten v i l l a g e rs / i n c l u d i n g . .. - 7- including the d e f e n d a nt The defendant said that he was arrested over three weeks later and taken to Sekake Police Post where he found Mosiuoa in the lock-up After three days Mosiuoa was released and told to keep reporting to the police The defendant said that he was interrogated and tortured by the police and eventually taken to the magistrate's court at Qacha's Nek and charged with assault. The prosecutor called only three witnesses for the prosecution, the plaintiff, his sister-in-law Mamotebang and a police officer. Strangely enough the plaintiff's father. Palo, and the old woman Mamapale (PW 3 ), and the headman Ralekoala (PW4) were not called although they were apparently in attendance at the court and a v a i l a b l e. Apparently, and this was not disputed, the magistrate found that the defendant had no case to answer and acquitted him without hearing the defence case I have not seen the lower court file but it seems to be an extraordinary decision if the defendant really was named and identified by the plaintiff in that court, It is also difficult to understand why the only alleged eye-witness, Palo ( P W 2 ), was not called to testify. Unless the police and the prosecutor were hopelessly incompetent the only other likely explanation seems to be that they were not told the same version of the incident as was related by the plaintiff and his father in this Court, I do not mean to say that in that case the defendant /would... - 8- would certainly have been convicted, but only that Palo would have been required to testify as the main eye-witness and the defence would have been heard of necessity and then a judgment d e l i v e r ed The fact that none of this happened seems to indicate that some of the present witnesses may well have changed their stories in the intervening three years. If Palo had really been present at the assault then surely he would have told the headman about it immediately that he met him on that night and he would not have waited to make his report until after he had returned from taking the plaintiff to hospital F u r t h e r m o r e, the early actions of the headman indicate that he was quite convinced that his son Mosiuoa had been named as the a s s a i l a nt His later detention of his son and then handing him over to the police confirms t h i s, in my v i ew I refer again to the extra- ordinary point that Ralekoala at no time expressed any surprise at the accusation directed at his son. He seemed to accept it as a reasonable probability. He did not dismiss it as being absurd. That was why I asked him in Court whether there was a grudge or a quarrel between his son and the p l a i n t i f f, because that would to some extent explain Ralekoala's ready acceptance of the a c c u s a t i on But Ralekoala denied t h i s, though I suspect that he was not being truthful on this p o i nt However that may b e, there is no doubt that Mosiuoa was the first suspect and the defendant was only brought /in later .... - 9- in later The p l a i n t i ff claimed to have been u n c o n s c i o us all the t i me and so was u n a b le to a s s i st the Court about what he may have said at M a m a p a l e ' s, until he later iden- tified the d e f e n d a nt as his a s s a i l a n t. The p l a i n t i ff was t a k en to M a c h a b e ng Hospital and later t r a n s f e r r ed to Queen E l i z a b e th II Hospital in Maseru and d i s c h a r g ed on 21 D e c e m b er 1 9 8 5. He thus spent four weeks in h o s p i t a l. He said that he has continued to re- ceive o u t p a t i e nt t r e a t m e nt since t h e m. He did not p r o d u ce his m e d i c al t r e a t m e nt b o o k, which he said he had left at h o m e, nor any m e d i c al r e p o rt on his i n j u r i e s. This was u n f o r t u n a te for him and m o st u n h e l p f ul to the Courts From the u n s i g h t ly scars on his face it was clear that he had been s e r i o u s ly injured. He had lost his left eye and had an a r t i f i c i al r e p l a c e m e nt He had v a r i o us s c a rs on his f o r e h e a d, around his left e y e, on his cheek and a b o ve his mouth There was also a scar on his left hand that m i g ht have been caused when he tried to p r o t e ct his f a c e. But he could not e x p l a in about any of them since he stated that he fell u n c o n s c i o us at the f i r st blow to his h e ad His f a t h er Palo (PW2) insisted that only two blows w e re struck by the a s s a i l a nt b u t, from the p o s i t i on and shape of the v a r i o us head s c a r s, I would say that t h e re would p r o b a b ly have been at least four blows or c u ts The p l a i n t i ff claimed that he lost a total of nine teeth as a result, He said t h at t h r ee w e re knocked out at the scene and six w e re later extracted in h o s p i t a l. Again t h e re is no r e p o rt to confirm t h i s, though he had gaps in his m o u t h. /The ... - 1 0- The plaintiff also claimed that when he recovered and went back to work in the mine at Grootvlei he was told that his injury was serious and, as it had not been caused at their m i n e, they could not accept him back there for w o rk . No doubt they wanted to make sure that there would be no compensation claim made against them at any time in relation to the injury. According to the plaintiff he had not worked since the incident but he and his wife and children merely relied upon their father for s u p p o rt The plaintiff is expected to m i t i g a te the result of his injuries by taking some steps to help and support himself. He is still a young man and he looks reasonably strong and f i b. The loss of one eye is no reason for him to sit around doing nothing for the rest of his life He has a family to support and he should find suitable w o r k, even if it is only agricultural He is by no means totally incapacitated but merely partially h a n d i c a p p ed He claimed that he earned R32.99 per d a y, six days a w e e k, in the mine and that now he earns nothing at all There was no proof of t h at Without his medical treatment book there was no evidence that he still requires to undergo o u t - p a t i e nt t r e a t m e nt or check-ups His hospital receipts (exhibit 'B') are for M 6 0 . 80 on 18 December 1985 and for M48 on 3 February 1986 and nothing since t h en That is a total of M108\ 80 as claimed in his s u m m o ns He also claimed for transport for t r e a t m e nt (exhibit ' A ' ), producing eight bus tickets dated from 18 December 1985 to 18 March 1 9 8 6. all to Qacha's Nek They total. M40.75 and not M41.23 as claimed. Other /tickets ... - 1 1- tickets and receipts he said were destroyed when his clothes were w a s h ed He also claims M15,000 for pain and suffering and M25.0Q for loss of a m e n i t i e s, and M 5 , 0 00 for contumelia. No awards in other cases of loss of an eye were cited but I would say that the amounts claimed a r e, as u s u a l, grossly exaggerated in the circumstances. Before going any further into t h a t, the important m a t t er to be decided is whether or not the defendant is liable to the plaintiff. The onus is on the plaintiff to prove to the satisfaction of the Court that on the balance of p r o b a b i l i t i es the d e f e n d a nt assaulted and injured him as he claimed. As witnesses I found that the plaintiff was unreliable and his f a t h e r, Palo ( P W 2 ), was shifty and unconvincing, If he really saw all that he described in this Court then he would surely have been called in the m a g i s t r a t e 's court as in the prosecution's main witness. He could not have been left o u t, unless the prosecutor was either out of his mind or a total i n c o m p e t e nt My impression of the plaintiff's case in this Court is that it was the result of a f t e r t h o u g ht and perhaps some discussion and planning by the plaintiff and his father Palo during the three years since the i n c i d e nt There is no doubt that the plaintiff most unfortunately received serious injuries to his face including the loss of an eye. They appear to me to be of such a severe nature that his assailant /must ... - 1 2- surely m u st have had a very serious grudge against him, u n l e ss it was d o ne by a mad man. T h e re are indications that it could have been Mosiuoa who was r e s p o n s i b l e. I find it very d i f f i c u lt to believe that merely asking the d e f e n d a nt who he is would be a s u f f i c i e nt p r o v o c a t i on for him to appear later that night and carry out such a d r e a d- ful and d e l i b e r a te assault u n l e s s, p e r h a p s, he was very d r u nk or insane, But there is no such e v i d e n ce against the defendant, As usual in cases of this type the full story has not been revealed in Court, The truth has been s u p p r e s s e d, hidden or m u t i l a t ed beyond recognition by some of the w i t n e s s es I agree with Mr Maqutu that there is something very fishy about this c a s e. I think that it is quite likely that the plaintiff did not see and identify his a s s a i l a n t, or if he did, he has chosen to name the d e f e n d a nt instead of the person whom he really s aw With regard to his f a t h er Palo ( P W 2 ), I s u s p e ct that he e i t h er did not return from the r i v e r, after relieving h i m s e l f, in time to see the a s s a i l a n t, or a g a i n, that he and the p l a i n t i ff have conspired to blame the d e f e n d a nt for reasons best known to t h e m s e l v es In any case I do not consider that the plaintiff has s a t i s f a c t o r i ly discharged the onus on him to prove his claim on the b a l a n ce of probabilities, I find that there is con- siderable d o u bt in my mind in this case and that the plaintiff /and ... - 1 3- and his witnesses were altogether unsatisfactory, unreliable and unconvincing . Consequently I see no need to go through the process of assessing the d a m a g e s. Accordingly, the plaintiff's claim is dismissed with costs to the d e f e n d a n t, P. A P. J ALLEN J U D GE 13 February 1989 Mr Pheko for the Plaintiff Mr Maqutu for the Defendant