Setefane v Setefane and Another (CIV/T 38 of 90) [1994] LSCA 45 (7 March 1994)

IN THE HIGH COURT OF LESOTHO CIV\T\38\90 In the matter between: THABO SETEFANE and MOLATI SETEFANE MACHALEBETSA SETEFANE PLAINTIFF 1st Defendant 2nd Defendant JUDGMENT Delivered by the Honourable Mr. Justice J. L Kheola on the 7th day of March. 1994 In this action the plaintiff is claiming damages in the sum of M88,707-40 which he has suffered as a result of assault upon him by the defendants The final medical report shows that as a direct result of the assault the plaintiff has suffered the following permanent disabilities 50% loss of power and function of the left leg, 2. 75% loss of power and function of the left arm; 3. Slow speech and loss of concentration. He will be unable to perform any physical work that requires use of both arms (See Exhibits "B" and "C") The plaintiff testified that the first defendant is his younger brother The second defendant is his eldest son On the 13th November, 1988 he was at his parents' home in order to discuss with the defendants the arrangements for the burial of his mother who had passed away. The defendants arrived at the same time and without uttering a single word, the first defendant picked up a stone and hit the plaintiff with it on the head He fell down He says that after he had fallen down the first defendant hit him on the waist with a sword. He did not see what the second defendant did because after he was struck with a stone on the head by the first defendant blood started flowing from the wound on the head into his eyes His body was numb or he was unconscious. Plaintiff says that the first defendant had written a letter to him accusing him of having ill-treated their mother before she died On the day in question they were actually going to discuss the contents of that letter. He testified that the whole of his left side of the body is paralysed His mind is also impaired and he cannot hear well Before the assault he did not have all these problems and worked in the mines in the Republic of South Africa In cross-examination the plaintiff denied that on the day in question he was actually fighting with his son, the second defendant He denied that the first defendant merely intervened to stop the fight between him (plaintiff) and the second defendant Before this incident he had never quarrelled with the second defendant However he admits that prior to November, 1988 the second defendant had been living with him at his (plaintiff's) home In November, 1988 the second defendant went to the first defendant's home and was living there when the fight took place It seems that the relations between the plaintiff and the second defendant have somewhat changed because the second defendant and his wife are now living with the plaintiff and helping him The plaintiff's second wife left him sometime after he was assaulted P W 2 Ntesi Nkaota testified that on the 13th November, 1988 he was at his home when he heard a scream coming from the direction of the home of the plaintiff's mother When he arrived there he saw when the first defendant picked up a stone near the kraal and hit the plaintiff on the head with it The plaintiff fell The first defendant then belaboured the plaintiff with something like a stick. Re hit him about two or three times P W 2 says that he and other people caught the first defendant and took him away However he escaped and went back to the plaintiff and hit him with a stick, Eventually the first defendant was overpowered by the people The plaintiff was carried into the house. P W 2 says that he observed that the plaintiff had a wound on the head and he was complaining of severe pain on the waist He was unable to apeak Before the assault the plaintiff was well and normal. In cross-examination P W 2 said that he is seventy-six years old He admitted that he has poor eyesight but was not blind It was at dusk when the assault took place and he could still see about twenty paces away. The story of the second defendant is that on the 13th November, 1988 his grandmother passed away He went to the home of the first defendant and informed him about the death of his grandmother The plaintiff and the first defendant came to their late mother's place. The latter informed the former that he was happy that their mother was dead because he (plaintiff) and his second wife used to ill-treat their late mother The plaintiff admitted that he was happy The second defendant says that after this conversation the first defendant turned and walked away The plaintiff tried to hit him with a stick but missed him and hit him (second defendant) The blow landed on his head He (second defendant) hit back with his stick and struck the plaintiff on the head The latter fell down on the stones at the forecourt The first defendant intervened and asked the second defendant what he was doing. He explained that the plaintiff had started the fight and that he hit him in self defence In cross-examination the second defendant says that when he arrived with the first defendant, the plaintiff had a conversation with him till he (first defendant) turned and proceeded towards the home of the second wife of the plaintiff The plaintiff followed him and tried to hit him with a stick but missed him and hit the second defendant. He says he was four paces away from the first defendant and the plaintiff was between them when he hit him The story of the first defendant is somewhat confused He says that he went to the home of the plaintiff with the second defendant. The purpose of his visit was to confront the plaintiff with the second defendant following a complaint the latter had made against his father They fought and he intervened but he noticed that the second defendant had already struck his father on the head In cross-examination the first defendant denies that the second defendant fetched him from his home He says that when he arrived there they were already fighting He denies that he had any conversation with the plaintiff when he arrived there because they were already fighting with their sticks He denies that plaintiff attacked him and tried to hit him with a stick but missed him and hit the second defendant He says that in his presence the second defendant never hit his father with a stick The latter had already sustained the wound on the head when the (first defendant) arrived The evidence of the first defendant is in direct conflict on material aspects with that of the second respondent It is the first respondent's story that when he came to the scene the plaintiff had already sustained the wound on the head The second defendant's version is that the first defendant was present when the plaintiff sustained the wound on the head The first defendant says that the plaintiff never fell down while he (first defendant) was present However according to the second defendant the first defendant was present The first defendant denies that the plaintiff attempted to hit him with a stick but missed him and hit the second defendant The second defendant says that the time the plaintiff hit him he (the plaintiff) was between the first defendant and the second defendant I do not understand how in attempting to hit the first defendant the plaintiff could have hit the second defendant who was on the other side of the plaintiff In order to hit the second defendant the plaintiff ought to have turned and faced him directly. It cannot be true that when plaintiff allegedly hit the second defendant he was attempting to hit the first defendant but missed him I have found the stories of the defendants to conflict with each and for that reason to be so improbable that they cannot be true On the other hand the version of the plaintiff as corroborated by that of P W 2 is probable There is no satisfactory evidence that the second defendant assaulted the plaintiff In the result judgment is granted in favour of the plaintiff against the first defendant only as follows' Payment of R5,000-00 for unlawful assault, Payment of R10, 000-00 for pain and suffering; 3 Payment of R43-00 being for hospital expenses; Payment of M48,644-40 being present and future loss of income; 5. Payment of M5,000-00 for loss of amenities, costs of suit J. L. KHEOLA JUDGE 7th March, 1994. For Plaintiff - Mr. Phafane For Defendants - Mr. N. A. Natete.