Tlhoriso v Moloinyane (CIV/T 135 of 1) [2011] LSHC 131 (22 September 2011)

CIV/T/135/01 IN THE HIGH COURT OF LESOTHO In the matter between:- MASINGOANENG CONSTANCE TLHORISO PLAINTIFF and MATHABO MOLOINYANE DEFENDANT JUDGMENT CORAM : HON. MR JUSTICE S. N. PEETE DATE : 22ND SEPTEMBER 2011 [1] This is an application for “the absolution from the instance” by the defendant in a case in which plaintiff had claimed damages for M60,000.00 being compensation for assaults and for her ear-lobe that was bitten off by defendant. In her declaration, plaintiff alleged that on the 11th February 2001 at or near Mphorosane, in the district of Leribe the defendant unlawfully assaulted her and bit off her left ear lobe. [2] Having requested and been furnished with further particulars, defendant in her plea averred that she had acted in self-defence after the plaintiff “who had a love affair with defendant’s husband” had accosted defendant on the latter’s way to work. There was no replication. *** [3] In February 2005, the trial proceeded with Mr Lethola for plaintiff, and the late Mr Khasipe for defendant. Plaintiff gave evidence to the effect that at the material time she was working as a nurse at Medical Rescue International at Mphorosane in the Leribe district. The defendant was then working in the same compound as a kitchen waitress (Eurest Support Services). [4] At lunch hour on the 11th February 2001 in the cafeteria a fracas had erupted between plaintiff and defendant in the kitchen when, as plaintiff testified, the defendant threw a spoon at plaintiff also insulting her saying “U bonahala u sele u tloha Thaba-Tseka koa …” [5] She says Malebohang and ‘Mathetso Moteete were present, when she – in retaliation – threw a sweets-bowl at defendant but missed her and Palesa intervened. She says she reported this to her supervisor. [6] She went on to tell the Court that at about 1.30 pm she went to her residence where defendant also stayed and that she then took a kettle to fetch water from the shower room – where she met the defendant. [7] She says as she passed, defendant hit the kettle she was holding. The kettle fell spilling the water it contained. She also slipped and fell down and that defendant set about hitting her and biting. “There were other kitchen women ‘Malebohang, ‘Mathabiso and ‘Marelebohile. She said defendant bit her ear spit out her ‘Malebohang intervened. [8] She says she picked up the piece of the ear lobe and tried to prevent bleeding before going to the clinic where she was forwarded to Bethlehem for treatment. [9] She says she was treated and discharged on the 13th February 2001. [10] Under cross examination she denied having a love affair with defendant’s husband, but admitted having an affair with the boyfriend of ‘Marelebohile – defendant’s friend. *** [11] It is not in dispute that defendant bit the plaintiff’s ear and spit out its earlobe. The defendant has the evidential burden to show that she acted in self-defence when she bit the ear. Cross examination is not evidence. [12] It is our law that where there are two stories mutually destructive, before the onus is discharged the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false.1 [13] The courts have reiterated that in order to escape absolution, the plaintiff had to make a “prima facie” case – in other words, there had to be evidence on which the court might or could reasonably find for the plaintiff.2 [14] Defendant does not deny biting of the defendant earlobe and it is for defendant to establish her justification. [15] The court is of the view that plaintiff has established a “prima facie” case which if the defendant does not rebut, would entitle the court to find in favour of plaintiff. [16] The Court of Appeal of Lesotho has ruled that when absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence could or might (not should or ought to) find for the plaintiff.3 1 Hoffman & Zeffert – South African Law of Evidence (4th Ed) 527 2 Malebo v Lesotho Plant Services – 1991-96 LLR; Frasers Lesotho Ltd v Hata-Butle – 1997-98 338 (vol.1) 562; see also Gordon Lloyd Page & Associates v Rivera – 2001 (1) SA 88 SLA; De Klerk v Absa Bank Ltd – 2003 (4) SA 315. 3 Matsoakeletse v Klass – LAC (2007-2008) 184 C. [18] I agree. In this case defendant bit the earlobe of the plaintiff, in a fight that took place in the shower room, it is for the defendant to establish justification for her act. This she can do by giving her own account. In the circumstances, I am of the view that the application for absolution is ill-conceived and is therefore dismissed. S. N. PEETE JUDGE For Plaintiff : Mr Ntlhoki For Defendant: Mr Kulundu