Lethole v Commissioner of Police and Others (CIV/T 4 of 2014) [2014] LSHC 74 (12 August 2014)

CIV/T/4/2014 IN THE HIGH COURT OF LESOTHO In Matter Between:- TSELISO LETHOLE PLAINTIFF AND TEYATEYANENG POLICE STATION THE COMMISSIONER OF POLICE ATTORNEY GENERAL 1ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT JUDGMENT Coram Date of hearing Date of judgment : : : Hon. N. Majara 5th May 2014 12th August 2014 Summary Claim for damages for assault – principles to be taken into account in assessing damages – damages designed to ameliorate the impairment of dignity caused by the physical and/or emotional suffering, but are not aimed at enriching the plaintiff – Court to also take into account prevalent economic conditions – onus on the plaintiff to establish the nature and extent of the injuries and the travel and medical expenses. ANNOTATIONS STATUTES 1. The 1993 Constitution of Lesotho CASES 1. Philander v Minister of Safety & Security (473/2011) (2013) ZAN WHC 51 2. De Jongh v Du Pisanie NO in Corbbet Nene v Road Accident Fund (EL 352/02) (2005) ZAECHC 49 3. R v Malinga 1961 (3) SA 377 4. Minister of Safety and Security v Tshei Jona Sekhoto & One (131/2010) ZASCA 5. Se’khosana Kalaile v Commissioner of Police & another CIV/T/ No. 23 of 2010 6. Mathafeng Nkofi v Tale Ramoreboli CIV/T/631/2013 (unreported) [1] The plaintiff in this action approached the Court for an award of damages arising out of an alleged assault against him by the defendants herein. Though the defendants were duly served with the summons they failed to enter notice of appearance to defend and/or to file their pleas and the plaintiff set the matter down for default judgment. [2] The plaintiff led evidence to the effect that on the 20th January 2010 he was at work when some police officers came and arrested him without informing him about the reason for the arrest. Upon arrival at the police station he was held by the scruff of his neck, thrown down and assaulted by being kicked with boots all over the body until he was unconscious. [3] He added that he was also kept in detention. When he came to, he discovered that he had a rubber tube over his head and when he tried to puncture it so that he could breathe he was insulted by his mother’s private parts. When he regained consciousness he felt asphyxiated and there was considerable pain on his waist. He requested to be taken to hospital and was only taken there on the 21st January however the police refused to give him a medical form. [4] He added that his health has deteriorated a great deal as a result of the assault and he has to go for periodic medical check-ups for a ruptured kidney. He has also lost his strength and is no longer able to perform the things he used to prior to the assault. Further that at all the material times, the police officers were acting within the scope of heir employment. [5] At the close of his testimony the plaintiff’s Counsel sought for a postponement to allow him to bring medical reports which the plaintiff had forgotten. The said documents were later tendered in as proof of the injuries sustained as a result of the assault and were marked ‘exhibit A’ collectively. [6] The first one is the standard doctor’s medical report. It reveals that the plaintiff’s right upper lip was swollen and so were his back and buttocks. Further that the cause of injury was a blunt object, the degree of force inflicted was considerate, there is no danger to life, no degree of immediate or long term disability and that the plaintiff was treated as an outpatient. [7] Upon their perusal, the other documents appear to be copies of someone’s medical history but do not bear the names of the patient referred to therein. However, the contents on one of them seem to be confirmation of the contents of the plaintiff’s doctor’s report. The rest of them seem to be medical history on something totally unrelated to assault but of a more intimate problem whose details I prefer not to divulge in this judgment. Suffice it for me to say that in the absence of evidence of a medical doctor to speak to the contents, I find them to be of no real value for my determination of the extent of the plaintiff’s injuries. Be that as it may, the plaintiff’s unchallenged evidence has shown that he was indeed assaulted and the only issue for determination is that of the quantum of damages. The Law [8] It is now established that when deciding the question of quantum in a claim for general damages the Court exercises a broad discretion in considering what would be fair and adequate compensation. It is also trite that in order for the Court to determine an amount that is fair to both parties it has to take into account several factors including but not limited to the particular facts and circumstances of the case, the injuries sustained by the plaintiff, as well as the nature, permanence, severity and impact on his life. It is also advisable for the Court to consider previous awards in comparable cases. See in this regard the decision in Philander V Minister of Safety and Security. 1 [9] It has further been stated that these kinds of damages are designed to ameliorate as far as they can the impairment of dignity caused by the physical and/or emotional suffering, but are not aimed at enriching the plaintiff. Thus, quoting with approval the decision in the case of De Jongh v Du Pisanie NO the Court in the case of Corbbet Nene v Road 1 (473/2011) (2013) ZANWHC 51, (6 June 2013) Accident Fund2 stated that in awarding the damages the Court must strive to set reasonable and consistent limits and ensure that the award is fair to both sides. It must thus give just compensation to the plaintiff but ‘must not pour out largesse from the horn of plenty at the defendant’s expense’. [10] In his summons, the plaintiff claims the amount of M100 000.00 for pain and suffering; M100 000.00 for contumelia; M50 000.00 for unlawful arrest and detention; M50 000.00 for disfigurement and M500.00 for hospital and medical expenses as well as costs of suit. [11] For the claim under the head, pain and suffering, it is inarguable that the Court has to rely on the plaintiff’s medical evidence and the extent of his injuries as evinced by the doctor’s medical report. In terms of the medical report, the plaintiff was treated as an outpatient and there was no degree of temporary or permanent disability. [12] It is therefore my view that an amount that would be essentially fair to him should be lesser than the one awarded in the Nkofi matter namely M75 000.00 where the plaintiff was more severely assaulted, was treated as an inpatient and some of his injuries had to be sutured. Thus it is my view that the amount of M30 000. 00 would suffice in the present case. 2 (EL 352/02) (2005) ZAECHC 49 [13] Insofar as contumelia goes, I have already shown that it is generally accepted that these kinds of damages are designed to ameliorate as far as they can the impairment of dignity caused by the physical and/or emotional suffering, but are not aimed at enriching the plaintiff. [14] In casu, the plaintiff’s evidence established that he was assaulted at the police station and there was nothing to suggest that this took place in the presence of other people besides his assailants. It is therefore my view that he should be awarded an amount that will only serve to ameliorate his hurt feelings without unnecessarily enriching him and it is my view that for that, a fair amount would be M2 000.00. [15] For arrest and unlawful detention, it is every citizen’s constitutional right to enjoy his right to personal liberty and he should not be arrested or detained save as may be authorised by law. 3 This right is one of most fiercely guarded fundamental rights in a Constitutional democracy and any interference with same has to be done under very compelling and lawful circumstances to the extent that even where the subject is detained by law enforcement agents, it should only be for the purpose of bringing him to Court and for no other reason least of all an unlawful one. 4 3 Section 6 of the 1993 Constitution of Lesotho 4 R v Malinga 1961 (3) SA 377 at 380 [16] In this regard it is salutary to note the remarks of the Court in the case of Minister of Safety and Security v Tshei Jonas Sekhoto and One 5 which was quoted with approval by sister Chaka-Mahooane J in Se’khosana Kalaile v Commissioner of Police and Another 6 in which she was dealing with a case where the plaintiff was detained but was never brought to Court to wit, “While it is clearly established that the power to arrest may be exercised only for the purpose of bringing the suspect to justice the arrest is only one step in that process. Once an arrest has been effected the peace officer must bring the arrestee before a court as soon as reasonably possible and at least within 48 hours… Once that has been done the authority to detain that is inherent in the power to arrest has been exhausted. The authority to detain the suspect further is then within the discretion of the Court.” [17] I have already shown that it is the plaintiff’s evidence that he was detained and that to date he was never brought before court. In the light of the position sated above, his detention was therefore unlawful. In this regard, on the basis of reasons as discussed above, it is my view that it would be essentially fair to both parties herein that the plaintiff be awarded an award that is aimed at ameliorating his wounded dignity without necessarily enriching him. I am accordingly of the view that the amount of M2 000.00 would be fair under the circumstances. 5 (131/2010) ZASCA 6 CIV/T/No. 23/10 (unreported) [18] With respect to the claim for disfigurement it is my view that the plaintiff failed to bring sufficient evidence to establish same and that this head was just thrown in without any basis whatsoever. I have already shown that in terms of his medical report the degree of force inflicted was considerate, there is no danger to life, no degree of immediate or long term disability and that the plaintiff was treated as an outpatient. The report says nothing about disfigurement whether temporary or permanent. Indeed a claim for disfigurement which is the state of having one’s appearance deeply and persistently harmed due to the assault must also be proved by medical evidence. 7 Therefore this claim has to fall away. [19] Since the plaintiff’s evidence remains unchallenged that he was indeed assaulted and had to seek medical help, it is indisputable that he has to be compensated for the loss necessitated by the incident. In my view, though unsupported with any other proof, the amount of M100.00 for medical expenses seems reasonable because he was only treated as an outpatient. On the basis of the above reasons I accordingly make the following order:- Default judgment is entered in favour of the plaintiff as follows:- a) Payment of the amount of thirty thousand Maloti (M30 000.00) for pain and suffering; 7 Mathafeng Nkofi v Tale Ramoreboli CIV/T/631/2013 (unreported) b) Payment of the amount of two thousand Maloti (M2 000.00) for contumelia; c) Payment of the amount of two thousand Maluti (M2 000.00) for unlawful arrest and detention; d) Payment of the amount of a hundred Maloti M100.00 for hospital and medical expenses; e) Costs of suit. N. MAJARA JUDGE For the plaintiff : Mr. Likhoeli For the defendant : No appearance