Selemo Mangobe V COMPOL (CIV/T/701/2011) [2024] LSHC 275 (7 June 2024)

# Selemo Mangobe V COMPOL (CIV/T/701/2011) [2024] LSHC 275 (7 June 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/275/eng@2024-06-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/275/eng@2024-06-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/275/eng@2024-06-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/275/eng@2024-06-07) [ __](mailto:?subject=Take a look at this document from LesLII: Selemo Mangobe V COMPOL \(CIV/T/701/2011\) \[2024\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/275/eng@2024-06-07) [ Download PDF (360.9 KB) ](/akn/ls/judgment/lshc/2024/275/eng@2024-06-07/source) Report a problem __ * Share * [ Download PDF (360.9 KB) ](/akn/ls/judgment/lshc/2024/275/eng@2024-06-07/source) * * * * * Report a problem __ ##### Selemo Mangobe V COMPOL (CIV/T/701/2011) [2024] LSHC 275 (7 June 2024) Copy citation * __Document detail * __Related documents * __Citations 10 / - Citation Selemo Mangobe V COMPOL (CIV/T/701/2011) [2024] LSHC 275 (7 June 2024) Copy Media Neutral Citation [2024] LSHC 275 Copy Hearing date 13 March 2024 Court [High Court](/judgments/LSHC/) Case number CIV/T/701/2011 Judges [Ralebese J](/judgments/all/?judges=Ralebese%20J) Judgment date 7 June 2024 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Remedies](/taxonomy/case-indexes/case-indexes-commercial-civil-remedies) * [Damages](/taxonomy/case-indexes/case-indexes-commercial-civil-remedies-damages) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **__** **CIV/T/701/2011** **** **HELD AT MASERU** **** In the matter between:- **SELEMO MANGOBE PLAINTIFF** **V** **COMMISSIONER OF POLICE 1 ST DEFENDANT** **THE ATTORNEY GENERAL 2ND DEFENDANT** _Neutral citation_ :- Selemo Mangobe vs Commissioner of Police & one [2011] LSHC Civ (07 June 2024) **________________________________________________________________** **JUDGMENT** **________________________________________________________________** **CORAM : JUSTICE M.P. RALEBESE** **DATE OF HEARING : 19 TH FEBRUARY 2023 & 13TH MARCH 2024** **DATE OF JUDGMENT : 7 TH JUNE 2024** **_SUMMARY_** **_Action for damages for unlawful arrest, unlawful detention, torture and assault, pain and suffering and humiliation – Plaintiff arrested by police officers from his home in the middle of the night without warrant – Assaulted – Driven in the bed of a pick-up truck while handcuffed to Mohale’s Hoek police station – Released without an explanation – Plaintiff cannot claim damages for assault and torture separately from pain and suffering – No proof of detention – Plaintiff’s claims exorbitant._** **__** **_ANNOTATION_** **_CITED CASES:_** **_LESOTHO_** Commander Lesotho Defence Force v Makhele (C of A (CIV) 39 of 2017) [[2018] LSCA 29](/akn/ls/judgment/lsca/2018/29) (7 December 2018) Frasers Lesotho Ltd v Hata-Butle (PTY) Ltd LAC (1995 – 1999) 698 Jonas v The Commissioner of Police (C of A (CIV) 53 of 2019) [[2020] LSCA 37](/akn/ls/judgment/lsca/2020/37) (30 October 2020) Lesetla v Commissioner of Police and Another (C of A (CIV) 31 of 2014) [[2014] LSCA 45](/akn/ls/judgment/lsca/2014/45) (24 October 2014) Makhaba v The Commissioner of Police (CIV/T 319 of 11) [[2017] LSHC 38](/akn/ls/judgment/lshc/2017/38) (14 November 2017) Masupha v Trooper Nyolohelo Tae (C of A (CIV) 13 of 13) [[2014] LSCA 13](/akn/ls/judgment/lsca/2014/13) (17 April 2014 Matete v Minister in Charge of Police and Others (C of A (CIV) 24 of 1987) [[1988] LSCA 111](/akn/ls/judgment/lsca/1988/111) (28 July 1988) Mosehle Molise v Officer Commanding Thaba- Tseka police post and 2 others (CIV/T/40/2012) [[2013] LSHC 74](/akn/ls/judgment/lshc/2013/74) (11 March 2013) Naidoo v Senti LAC (2007 -2008)161 Officer Commanding Mafeteng Police Station v Tjela (C of A (CIV) 45 of 2020) [[2021] LSCA 23](/akn/ls/judgment/lsca/2021/23) (14 May 2021) Rex v. Phaloane1980 (2) LLR 260 Senior Inspector Sepinare Masupha v Trooper Nyolohelo Tae (C of A (CIV) 13 of 13) [[2014] LSCA 13](/akn/ls/judgment/lsca/2014/13) (17 April 2014) Tsehla v Commissioner of Police and Another (CIV/T 463 of 11) [[2012] LSHC 42](/akn/ls/judgment/lshc/2012/42) (20 February 2012) **_SOUTH AFRICA_** Delange v Costa 1989(2) SA 857 Duncan v Minister of Law and Order 1986(2) SA 805 at 819 H. Minister of Safety and Security v Sekhoto and Another (2011 (1) SACR 315 (SCA); [2011] 2 All SA 157 (SCA); 2011 (5) SA 367 (SCA)) [[2010] ZASCA 141](/akn/za/judgment/zasca/2010/141); 131/10 (19 November 2010) Minister of Correctional Services v Tobani 2004(5) SA 126 Minister of Law and Order, Kwandebele and Others v Mathebe and Another (156/88) [[1989] ZASCA 126](/akn/za/judgment/zasca/1989/126); [1990] 4 All SA 98 (AD) (29 September 1989) Pitt v Economic Insurance Co. Ltd 1957 (3) SA 284 (D) Sigournay v Gillbanks 1960 (2) SA 552 Small v. Smith 1954(3) SA 434 **_BOOKS_** Visser and Potgieter, Law of Damages 2nd Edition, Juta at page 443-444 **_STATUTES_** Criminal Procedure and Evidence [Act No.9 of 1981](/akn/ls/act/1981/9) High Court Rules Legal Notice No.9 of 1981 Internal Security Act (Arms and Ammunitions) [Act No.17 of 1966](/akn/ls/act/1966/17) **Ralebese J.** **Introduction** [1] The plaintiff is a male adult and resident of Ha Mohalinyane Taung in Mohale’s Hoek. At the time of instituting this action, he was a businessman operating from his home village. The plaintiff instituted this claim in terms of which he is claiming the total damages to the tune of M500.000.00 against the Commissioner of Police (1st defendant). The damages are apportioned as follows in the declaration: - 1. M100,000.00 for torture and assault; 2. M100,000.00 for humiliation; 3. M150,000.00 for pain and suffering; 4. M75,000.00 for unlawful arrest; and 5. M75,000.00 for unlawful detention. The claim arose pursuant to the arrest of the plaintiff on 3rd November 2010 by the Police officers from the Special Support Unit (SSU) based at Mabote Police Station. The police officers were at that time acting within the scope of their employment and as the agents of the 1st defendant. The action is defended. **The Plaintiff’s Evidence** [2] The plaintiff’s evidence which was never gainsaid under cross- examination was that in the wee hours on 3rd November 2010 four police officers arrived at his home while he was asleep. They knocked and when he opened the door three of them got into his house and informed him that they were police officers, and they were looking for a gun that he had in his possession. These police officers were all wearing balaclavas. The plaintiff informed them that he did not have a firearm in his possession as he had applied for a licence to possess one, but the application had not yet been granted. He said the police officers then pushed him into his bedroom whereat one of them ordered him to prone out on his bed. He said that was when one of them started hitting him with the butt of a rifle on the buttocks while the other was kicking him and they told him that he would produce the firearm by force. [3] The plaintiff said he sought permission from the police officers to call his chief who could bear him witness that he did not have a gun. He was given that permission and he called the chief. PW2 confirmed that he was with the chief at the material time when the plaintiff called him asking him to go to his place as there were police officers at his place. [4] The plaintiff’s evidence was that the police officers then took him out of the house, made him sit in a fetal position and they cuffed his hands below his thighs. They then carried him into the bed by the pick-up truck that they were traveling in as he could not walk. The pick-up truck drove off and at about two kilometres from the village, it stopped. The plaintiff said the police officers hit him with the rifles and kicked him in the wrists where they were cuffed. It was not clear from the plaintiff’s evidence how he got to be kicked while he was inside the bed of the pick-up truck that was said to have a canopy as he never indicated that he was taken out of the vehicle. It is improbable that the police officer could have kicked the plaintiff while he was still in the bed of the canopied bakkie without taking him off the vehicle. The court therefore rejects the plaintiff's allegation that the police officers stopped the vehicle some metres away from his village and assaulted him. DW1 suggested that he heard the plaintiff screaming while the vehicle had stopped at some distance from the village. The plaintiff however never said he ever cried out or screamed while the vehicle had stopped at some distance from the village. The reason why the vehicle stopped was proffered by DW1 who indicated that the plaintiff had signaled to them to stop and after they had stopped the plaintiff told them that the firearm they were looking for was at Qalakheng. [5] The vehicle drove off and it stopped again when it came across another vehicle that was coming from the opposite direction. This other vehicle was driven by police officers from Mohales’Hoek who were apparently going to the plaintiff’s place because the members of the plaintiff’s community had reported the arrest of the plaintiff. The two vehicles then drove together towards Mohales’Hoek direction until they stopped at Mohales’Hoek Police Station. The plaintiff said he never got out of the vehicle but the police officers who had arrested him alighted and got into the police station. They later came back to the vehicle, and it drove off again. The plaintiff said the vehicle stopped again at the place called Racecourse amid the trees. The police threw him out of the bed of the pick-up truck and they started hitting him with the rifle buffs and stepping on him with their shoes. The plaintiff said he screamed as he was being assaulted until one of them said he was too loud and suggested that he be taken back to the police station. The vehicle then drove with the plaintiff on board and it went back to Mohales’Hoek Police Station where the police officers left him outside telling him that he knew his home and they drove off. [6] It should be mentioned that the allegations about the plaintiff being taken to the Racecourse and being assaulted thereat were not pleaded in the declaration. The statement of the plaintiff (witness statement) that was filed in preparation for the trial in terms of the **High Court Rules** did not also disclose that the plaintiff was taken to the Racecourse where he was assaulted. All that the declaration states in paragraphs 4 - 6 is that from the plaintiff’s home, the plaintiff was taken to Mohale’s Hoek Police Charge Office where he was made to get out of the vehicle and the police officers left him outside when they got into the charge office, and they thereafter left. [7] High Court Rule 20(4) read with Rule 21(2) provides that the plaintiff should plead clear and concise statements of the facts upon which he relies for his claim and the conclusions of the law which he wants to deduce from such facts. These Rules are critical in action proceedings as they enable the defendant to plead clearly and concisely (in a plea) all the material facts on which he relies for his defence as required by Rule 22(3). The necessity and importance of pleading the facts necessary to sustain a claim or a defence in action proceedings was highlighted in **Frasers Lesotho Ltd v Hata-Butle (PTY) Ltd**[1] in the following terms- “ _Lesotho’s High Cout Rule 22(3) requires a defendant squarely to state which facts in the declaration he does not admit, and to what extent. He must in addition “clearly and concisely state all material facts on which he relies”. It has been stated often enough that the requirement of a rule in terms such as these is to enable each side to come to trial prepared to meet the case of the other…and to enable the court to isolate the issue it is to adjudicate upon. The cause of action or defence must appear clearly from the factual allegations made… It is in particular wrong to direct the attention of the other party to one issue and then attempt to canvass another._ ” The plaintiff in the instant case cannot be permitted to rely for his claim on the facts which he failed to plead as that would be unfair to the defendant and would be tantamount to an impermissible trial by ambush. The new facts which were not pleaded in the declaration will therefore not be considered in the determination of the plaintiff’s claim. [8] At the Mohale’s Hoek Police Station, the plaintiff said he waited outside until around 8:00 am when he met the Officer Commanding. He reported to him what had occurred. The Officer Commanding called someone on the phone and thereafter informed the plaintiff that he had been arrested by Mabote Police Officers. The officer commanding gave the plaintiff a medical form with which he went to see the doctor later that day. **The Defendants’ Evidence** [9] As earlier indicated the foregoing summary of the plaintiff's evidence was never gainsaid under cross-examination. The defendants led one defence witness (DW1) who was one of the police officers who went to arrest the plaintiff. His evidence was that upon arrival at the plaintiff’s place, they knocked on the door and the plaintiff asked who they were. They responded that they were police officers. He said the plaintiff opened the door and asked them where his chief and he immediately closed the door and did not let them in. The witness said they then went to the chief’s place and returned to the plaintiff’s place with the chief. DW1 said the plaintiff opened the door upon hearing that they were with his chief. They entered the house and introduced themselves to the plaintiff as the police officers from Ha Mabote and that they were looking for a firearm that he possessed unlawfully. The plaintiff said he did not have a firearm. They searched the house but they found nothing. They then told the plaintiff and his chief that they were taking him to Ha Mabote to continue their investigations as they had found one door to the plaintiff’s house opened and they suspected that someone could have left the house with the gun. [10] DW1 said they cuffed the plaintiff and put him in the bed of the pick-up van/truck that had a canopy. Along the way the plaintiff knocked on the window and they stopped the vehicle to hear him out. He said the plaintiff told them that the gun was at Qalakheng at his nephew’s place to which they said his stories were not adding up and that they would take him to Mohales’Hoek Police Station. He said they drove to Mohales'Hoek Police Station intending to report themselves to the Officer Commanding. Upon arrival at the Mohales' Hoek Police Station, they sought permission to use one of the interview rooms to interrogate the plaintiff. DW1 said in the interrogation room, the plaintiff told them that the gun was at Qalakheng. They left the police station driving with the plaintiff to Qalakheng. Along the way, the plaintiff told them that he was just implicating himself when he said the gun was at Qalakheng. He said since the plaintiff’s stories were mixed up, they returned to Mohales’Hoek Police Station where they handed the plaintiff over to the Mohales’Hoek police officers. It was DW1’s evidence that before they left, one Sergeant Kopeli interviewed the plaintiff to ensure that he had no complaints against them. The interview was done in their absence, after which Sergeant Kopeli released them and they left for Mabote Police Station. After some days their superiors at Mabote got a call that they should report to Mohales' Hoek Police Station. They went there and met with Senior Inspector Phihlela who told them that the plaintiff had a complaint that they had assaulted him. They disputed the alleged assault as they indicated that it never happened. [11] The gist of DW1’s evidence was to rebut the plaintiff’s evidence that they ever assaulted him. The whole of his version of how the events unfolded when they went to arrest the plaintiff was not put to the plaintiff and his witness under cross-examination. As counsel for the plaintiff correctly submitted, the case of **Small v Smith**[2] is a _locus classicus_ on the purpose of cross-examination if a party wants to move the court to disbelieve the evidence of the witnesses for the other side. Claasen J in that case enunciated the principle in the following terms:- “ _It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case of defence as_ _concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradictions and defending his own character. It is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved_. _Once a witness’s evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume in the absence of notice to the contrary that the witness’s testimony is accepted as correct. More particularly is this the case if the witness is corroborated by several others, unless the testimony is so manifestly absurd, fantastic or of so romancing a character that no reasonable person can attach any credence to it whatsoever._ ” Although the failure by the defendants to put their case to the plaintiff’s witnesses can potentially weaken the criticism of such evidence, the failure _per se_ does not mean that the plaintiff's evidence should be accepted as is. The court should still consider its veracity in the circumstance of the whole case. In the same breadth, and tempting as it might be to draw an inference that DW1's evidence is a fabrication that deserves to be thrown out without a second thought, the evidence should still be given careful consideration as if the elements of the defendants’ case had been put to the witnesses for the plaintiff (**Rex v. Phaloane**). **The issue** [12] The issue for determination is whether the plaintiff has made out a case that he is entitled to the damages that he has sought under each of the claims. I now proceed to analyse the evidence and the law on each of the plaintiff’s claims. **Unlawful arrest and unlawful detention** [13] The plaintiff has claimed separately for the unlawful arrest and unlawful detention. An arrest and detention are two separate and distinct processes even though there is a strong correlation between the two[3]. If the arrest is tainted by illegality, the detention will also be unlawful. This notwithstanding, the plaintiff still needs to raise the stand-alone grounds and _facta probanda_ to prove the detention and its unlawfulness. The plaintiff in this case has not alleged any grounds upon which claims to have been detained. It follows therefore that his claim under the head of detention fails and it is dismissed. [14] As regards the arrest, it is not disputed that the plaintiff was arrested by the four police officers from the SSU who were at the time acting within the scope of their employment by the 1st defendant. It is also common cause that the police officers were not armed with a warrant of arrest. The question is whether the arrest was unlawful as alleged by the plaintiff and whether he is entitled to the quantum of compensation that he has sought consequent to the arrest. Where the arrest was without a warrant as is the case _in casu_ , the onus is on the defendants to justify that the police officers were authorised to effect the arrest without the warrant (**Minister of Correctional Services v Tobani**[4]). [15] The defendants’ case was that the plaintiff was arrested because the police officers had some information that caused them to suspect that he was in possession of a firearm unlawfully. Arrests without warrants by peace officers, of which the police officers are, in terms of section 3 of the **Criminal Procedure and Evidence Act**[5] are governed by Part V of the same Act and in particular sections 24 and 25. These provisions outline circumstances under which a police officer can arrest without a warrant of arrest. In terms of these provisions a suspicion that a person is in possession of a firearm unlawfully does not fall within the circumstances under which police officers can arrest without a warrant of arrest. **The Internal Security Act (Arms and Ammunitions) Act**[6] (**As Amended**) also provides for situations under which a police officer can arrest without a warrant of arrest. Section 35(4) provides that a police officer may arrest a person whom there is cause to reasonably suspect to be committing the offences under the specified provision of the Act. A suspicion that a person is in unlawful possession of a firearm while on his private property does not fall within the spectrum of those offences. What is deducible from the foregoing analysis therefore is that the police officers who went to arrest the plaintiff had no legal authority to do so without a warrant as no jurisdictional facts existed which justified the plaintiff’s arrest without a warrant. The fact that they were not armed with a warrant of arrest leads to the inescapable conclusion that they arrested him unlawfully. [16] The other element that rendered the arrest of the plaintiff palpably unlawful is that there were no grounds justifying it as anticipated in section 6(1) of **the Constitution**[7]**.** This section outlines circumstances under which a person's legal right to liberty can be curtained through an arrest. DW1 testified that after they had searched the plaintiff and they had not found a gun that they suspected he possessed, they decided to arrest him because they had seen the other door of his house open, and they suspected that someone might have left the house through that door with the firearm. The witness did not tell the court the specific purpose that the arrest was intended to serve in those circumstances. The only justifiable reasons for which the police officers could arrest the plaintiff was to further investigations[8] or bringing him to justice[9]. The**Lesotho Constitution** under section 6(3)(b), read with section 6(5), also anticipates that a person who is arrested on a suspicion of having committed an offence must, at the close of the investigations, either be released or brought to justice. [17] What is clear from the evidence in this case is that the police officers did not arrest the plaintiff with the intention either to undertake further investigations or to bring him to justice. The court finds it as a fact that the police officers arrested the plaintiff at his place and drove with him to Mohale’s Hoek Police Station where they left him outside without an explanation and drove back to Maseru. The suggestion by DW1 that they interrogated the plaintiff at Mohale’s Hoek Police Station cannot assist the defendants’ case as he never told the court the details of whatever they wanted to investigate further with the plaintiff’s assistance. What is apparent in this case is that the police officers arrested the plaintiff for some other ulterior motive known only to them, and this was unlawful. God only knows what could have happened to the plaintiff had his community members not alerted the Mohale’s Hoek Police of his arrest and had those police officers not decided to drive to the plaintiff’s village. The plaintiff’s evidence was that the police officers did not tell him their names and that they were from Mabote Police Station. They were wearing balaclavas in the darkness of the dawn and they had not reported to the Mohale’s Hoek Police Station before proceeding to arrest the plaintiff. It can thus be inferred that went via Mohale‘s Hoek Police Station and decided to leave the plaintiff there only because their hatched plot to abduct the plaintiff had been intercepted by the Mohale’s Hoek police officers. DW1 indicated in his evidence that their intention when arrested the plaintiff was to take him to Ha Mabote but they suddenly decided to leave him at Mohale’s Hoek police station without an explanation. [18] What next falls to be considered is whether the plaintiff is entitled to the amount of damages that he has sought. The factors that guide the determination of the quantum of damages in cases of unlawful arrest were summarised in **Jonas v The Commissioner of Police**[10] to include the duration of denial of liberty, sanctity of personal liberty, the disgraceful manner and circumstances of the arrest, the bona fides of the arresters, the torturous manner in which the arrest was effected and the prevailing economic conditions. The first consideration is that the motive of the arresters was known only to them and was as such not bona fide. The manner in which the police officers handled the plaintiff is also relevant in the determination of the quantum of the damages. The plaintiff in this case was not handled with the courtesy deserving of a human being; the police officers cuffed his hand below his thighs and put him in the bed of the bakkie that was driven at high speed. The duration of the arrest is also relevant[11], and in this case the plaintiff was arrested and held by the police for a few hours between 1:00am and just before 8:00am. It is trite that compensation for non-patrimonial loss is not meant to be punitive to the defendant as the counsel for the plaintiff wanted to suggest. The principle that maintains in our jurisdiction is not to grant punitive damages in delictual claims (**Officer Commanding Mafeteng Police Station v Tjela**[12]). In **Lethole v Commissioner of Police and Others**[13]**** which was decided ten years ago in 2014, the court awarded the plaintiff who had been arrested from his workplace and had been assaulted by the police the damages of M2,000 for unlawful arrest. In **Jonas v Commissioner of Police**[14] the appellant who had been arrested by the police for 36 hours but had not been assaulted was awarded a global figure of one M100,000.00 for unlawful arrest and detention and injuria. In **Tsehla v Commissioner of Police and Another**[15] the plaintiff who had been arrested and detained overnight was awarded M50,000.00 for the unlawful arrest and detention. It can be seen from the foregoing earlier awards that the plaintiff's claim has been excessively inflated. Given the duration and the circumstances of the plaintiff's arrest, the fair and equitable amount of damages to which he is entitled is M15,000.00. **Pain and suffering** [19] The plaintiff has claimed the damages for pain and suffering which he alleges to have endured in the hands of the police officers who assaulted him at the time of his arrest. The burden rests on the plaintiff to prove that he was assaulted by the police officers. Looking at the plea filed on behalf of the defendants, it barely denied the assaults on the plaintiff and it did not state the material facts on which the defendants relied to deny the assault as anticipated in High Court Rule 22 (3). As earlier indicated in this judgment, the evidence of the plaintiff that the police officers assaulted him with the butts of the rifles and kicked him in his house was uncontroverted under cross examination. The picture painted by DW1 in his testimony however was that they arrested the plaintiff peacefully at his home in the presence of his chief, and they drove with him to Mohale’s Hoek Police Station where they ultimately left him. The impression that DW1 gave was that the plaintiff was never assaulted. [20] Where the court as in this case is faced with two mutually destructive versions of the plaintiff and the defendants, the plaintiff will succeed in discharging the burden if he proves on the balance of probabilities that his version is the correct and accurate one and that the defendants’ version on a preponderance of probabilities falls to be rejected. In deciding whether to accept the version of the plaintiff in favour of the defendants’ version, the court will test the plaintiff’s version against the general probabilities as guided by issues of credibility and reliability of evidence (**Naidoo v Senti**[16]). [21] It is the salutary principle of our law that an opposing party should put so much of his case to the opposing witnesses so that they can either confirm, contradict, or comment on it (**Small v Smith**[17]). The probabilities in this case favour the plaintiff as his evidence went unchallenged in cross-examination and the defendants’ version was never put to him so that he could comment on it. The court therefore has no reason to disbelieve the plaintiff when he says that he was assaulted by the police officers in the manner that he explained in his house. The plaintiff’s evidence in this regard is corroborated by the medical report of the doctor who examined him immediately following his release (Exhibit A). The medical report shows that the plaintiff had bruises on the forehead, the chest, and both wrists. If the turn of events on the day in issue was as rosy as DW1 wanted to portray it, there would be no explanation of the injuries that the plaintiff was found to have sustained soon after he had been released by the police officers. The plaintiff maintained the story that the police officers assaulted him from the time that that the police officers released him and left him at Mohale’s Hoek Police Station. He reported the assaults to the station commander hence he was given the medical form. [22] The assault of the plaintiff was unlawful and without any justification whatsoever. The next issue for consideration is whether the plaintiff is entitled to the compensation of M150,000.00 for pain and suffering as he has claimed. There is no basic formula for determining an amount for pain and suffering and this calls for the trial court to exercise judicious discretion to determine the quantum of compensation that the plaintiff is entitled to (**Masupha v Trooper Nyolohelo Tae**[18]). The court in this regard will be guided by the subjective experience of the plaintiff as determined by the intensity, nature, and duration of the pain and suffering that the plaintiff alleges to have endured in the hands of the defendants[19]. The factors that will guide the court in determining the intensity of the pain and suffering endured by the plaintiff include the degree of force used to inflict the assaults, the nature of the medical treatment the plaintiff received, the degree of injury to life, and the degree of immediate or long-term disability consequent to the assaults. [23] The amount of compensation to be awarded should be equitable to both the plaintiff and the defendants. The former should be fairly compensated and not be unduly enriched, and to the latter should not be unreasonably impoverished. The equitable principle was succinctly put by Holmes J in **Pitt v Economic Insurance Co. Ltd**[20] when he said the court “ _Must give just compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the defendant’s expense_ ”. The discretion of the court in determining the equitable compensation will also be guided by the previous awards in comparable cases as informed by the similarities in the physical injuries, the nature and duration of the medical treatment, or the permanence of the injuries (**Lesetla v Commissioner of Police and Another**[21]). [24] The plaintiff said as the police officers were hitting him with the butts of their rifles and they kicked him in the cuffed wrists, they hurt him so badly. This was the only time that he talked about the intensity of the pain and suffering that he endured. At some point, he said he claimed compensation because ‘the injuries he sustained were bad’. He did not indicate the intensity, nature and duration of the pain and suffering that he endured as a result of the bad injuries that he sustained. It should be remembered that the subjective experience of the plaintiff is paramount in an assessment of fair compensation for pain and suffering since pain and suffering can only exist to the extent that it is actually experienced by the injured person. The way the plaintiff was assaulted or the circumstance under which the pain and suffering was caused play no role in the determination of the quantum of damages for pain and suffering[22]. With the scant details on the intensity, nature and duration of the subjective pain and suffering that the plaintiff endured the court will rely on other factors referred to earlier in this judgment in determining the fair and equitable compensation. The degree of force used to inflict the assaults on the plaintiff was said to be severe. The plaintiff was treated as an outpatient but the nature of the medical treatment that he received was not indicated. Though medical form indicated that the degree of immediate disability was severe, the plaintiff did not disclose the nature of such disability. The degree of danger to the plaintiff’s life and the degree of long-term disability were said to be moderate and partial respectively. The details of how the plaintiff’s life was endangered and the long-term disability that he was likely to experience were also not given by the plaintiff. [25] Now looking at the previous awards in comparable cases:- * In 2017 the court in **Makhaba v The Commissioner of Police**[23] awarded the plaintiff M50,000.00 as combined damages for unlawful arrest and detention, assault and _contumelia_. The nature of the assaults and the pain and suffering that that the plaintiff endured in that case were intense. The plaintiff had been assaulted until he urinated and soiled himself; the assault resuscitated previous injuries he had sustained previously in an accident; and the assaults led to him being incontinent. * In **Lesetla v Commissioner of Police and Another**[24] the police had handcuffed and assaulted the appellant for an hour by whipping, kicking him all over the body and suffocating him with a rubber tube. As he struggled while being assaulted his hands were injured by the cuffs. It had taken the appellant about a month to recover fully and during his recovery, he needed assistance to take a bath. The court awarded the appellant a composite amount of M45,000.00 for unlawful search, unlawful arrest and detention, shock and pain and suffering. * In **Mosehle Molise v Officer Commanding Thaba- Tseka police post and 2 others**[25] the extent of the pain and suffering endured by the plaintiff was extensive, he was hospitalised for three days and for a further two weeks and he had to undergo further treatment and medical check-ups. The court therein awarded damages of M65,000 for assault, pain and suffering and disfigurement. [26] Looking at the foregoing cases, the factors that have a bearing on the intensity, nature and duration of the pain and suffering that the plaintiff suffered, the amount that he has claimed appears to be excessive. In the circumstance, the fair and equitable compensation for the pain and suffering that the plaintiff endured is M10,000.00. **Torture and Assault** [27] That takes us to the plaintiff’s claim for torture and assault. It was submitted on behalf of the defendants that since pain and suffering are the results of torture and assault, the plaintiff didn't have to claim compensation for both pain and suffering and torture and assault as separate claims. I endorse this submission because a mere physical injury or evidence of assaults and torture do not _per se_ constitute non-patrimonial loss, they only constitute the source of such loss. There must be proof of the actual loss in the form of the actual and subjective pain and suffering endured by the plaintiff. What is compensated under the delict of pain and suffering is the actual pain, physical and mental suffering and discomfort caused by assaults, torture or bodily injuries. The critical _facta probanda_ is the actual and subjective pain experienced by the plaintiff[26]. This point was clarified by Shreiner J.A in **Sigournay v Gillbanks**[27] in the following terms – “ _The fact is that most of what might have been excruciating pain was not pain for the plaintiff. And compensation under this heading is given for pain, not for the seriousness of the injuries or the risk to the plaintiff’s life. Injuries may leave after-effects and may cause mental anxiety but they are not themselves pain.”_ It follows therefore that it is untenable for the plaintiff to claim non-patrimonial compensation for torture and assault separately from pain and suffering. This leg of the plaintiff’s claim should be disallowed. **_Contumelia_****or Humiliation** [28] The plaintiff claimed damages for the humiliation as a result of the ‘unlawful acts of the defendants’. Supposedly by the ‘defendants’ he meant the police officers who arrested him while acting as the agents of the defendants. Though the plaintiff did not single out the unlawful acts that caused his humiliation, the court supposes that the humiliation resulted from the arrest and the assault that the court has already found to have been wrongful. Compensation for humiliation or _contumelia_ is awarded to the plaintiff for an impaired personality and dignity arising from a wrongful act of the defendant. Dignity was defined by Melius De Villiers in his work entitled The Roman and Roman-Dutch Law of Injuries quoted with approval by Smuts AJA in **Minister of Police v Mbilini**[28]in the following terms-: “… _that valued and serene condition in his social or individual life which is violated when he is, either publicly or privately, subjected by another to offensive and degrading treatment, or when he is exposed to ill-will, ridicule, disesteem or contempt_.” [29] In addition to the wrongful act, the plaintiff who claims damages for _contumelia_ must prove; an intention on the part of the defendant to produce the effect of his act (_animus injuriandi_); and that he suffered an impairment of his dignity as a result of the wrongful act of the defendant.[29] In the instant case, the wrongfulness of the plaintiff’s arrest and assault leads to the presumption that the police officers had the intention to injure the plaintiff. Regarding the alleged impairment of his dignity, the plaintiff should prove that his dignity was both subjectively and objectively violated[30]. The plaintiff said he felt subjectively humiliated by the wrongful acts of the police officers (the assault and the unlawful arrest). The question is whether these wrongful acts were objectively humiliating when viewed with the spectacle of a reasonable person in the context of the prevailing norms and values of society. [30] The plaintiff indicated in his evidence that he was a respectable businessman in his community who used to assist members of his community. His arrest in the middle of the night, being assaulted for no apparent reason, and being put in the bed of the pick-up truck while handcuffed like a criminal undoubtedly subjectively shattered his serenity and consequently humiliated him. There is no question that a reasonable person in the situation of the plaintiff would have felt humiliated and his dignity shattered by the unjustified arrest and assault. [31] This now brings us to the determination of the quantum of the damages that is fair and equitable in the circumstances of this case. This is normally guided by, amongst others, the existence or otherwise of the factors that aggravate or extenuate the humiliation as disclosed by the facts. In the instant case, the evidence has shown that the members of the plaintiff’s community got to know of his arrest in the middle of the night as they gathered at his place after the vehicle had left and they even alerted the Mohales’ Hoek police of his arrest. This aggravated the humiliation that the plaintiff suffered as he was known in his village as a respectable businessman who used to help members of his community. The public affront and the social status of the plaintiff are relevant in the determination of the quantum of damages for _contumelia_ (**Senior** **Inspector Sepinare Masupha v Trooper Nyolohelo Tae**[31]). [32] The court in **Senior Inspector Sepinare Masupha v Trooper Nyolohelo Tae**[32]**** awarded the plaintiff M15,000 for contumelia as he had been assaulted in the view of his junior colleagues. In **Officer Commanding Mafeteng Police Station v Tjela**[33] the court awarded the plaintiff the global damages of M250,000.00 for shock, pain and suffering, _contumelia_ , and medical expenses that flowed from his brutal assault by the police in the view of the villagers. In **Lethole v Commissioner of Police and Others**[34] the plaintiff who was arrested and assaulted in the circumstances similar to the instant case was awarded M2 000.00 for _contumelia_ in addition to the other claims. [33] In view of the foregoing considerations and previous awards the court considers that the fair and equitable compensation for the impaired dignity and humiliation of the plaintiff is M20,000.00. **Disposition** [34] The arrest of the plaintiff by the police officers who were acting in their capacity as the agents of the defendants was unlawful in as much as it was unjustified. The plaintiff discharged the burden of proving that the police officers assaulted him during the course of the arrest. The assault was wrongful. He further proved that he endured pain and suffering as a result of the wrongful assault. The plaintiff further discharged the burden of proving that consequent to the wrongful arrest and assault, his dignity was subjectively and objectively violated. [35] The plaintiff’s claim for torture and assault is untenable as assault or torture do not _per se_ constitute a non-patrimonial loss but are the sources of such loss. In addition to the assault or torture, the plaintiff must also prove the non-patrimonial loss in the form of the actual and subjective pain and suffering that he endured. The plaintiff also failed to prove his claim for unlawful detention. [36] The primary purpose of non-patrimonial damages is not to enrich the plaintiff whose personality rights have been violated, but to offer him solatium for the injured feelings. The damages awarded should be fair and equitable to both the plaintiff and the defendant and should not impoverish the latter. It is further not the purpose of a delictual claim for damages to penalise the defendant who is guilty of the wrongful acts. In the instant case, the damages sought by the plaintiff under each of the claims are unreasonably exorbitant. [37] The court therefore finds as follows: - 1. The plaintiff’s claims for damages for unlawful arrest, pain and suffering and humiliation succeed, and he is awarded damages as follows: - 1. M15,000.00 for unlawful arrest; 2. M10,000 for pain and suffering; and 3. M20,000 for humiliation. 2. The plaintiff’s claims for torture and assault and unlawful detention are dismissed. 3. The defendants should bear the costs of the suit at a normal scale. ______________________________ **M****. RALEBESE** **JUDGE** **** For the plaintiff : Adv. T’senoli For the defendants : Advocate Makhoali * * * [1] Frasers Lesotho Ltd v Hata-Butle (PTY) Ltd LAC (1995 – 1999) 698, at 701 - 702 [2] Small v. Smith 1954(3) S.A. 434 at 438 E-H [3] Minister of Law and Order, Kwandebele and Others v Mathebe and Another (156/88) [[1989] ZASCA 126](/akn/za/judgment/zasca/1989/126); [1990] 4 All SA 98 (AD) (29 September 1989) [4] Minister of Correctional Services v Tobani 2004(5) SA 126 at 136G [5] Criminal Procedure and Evidence [Act No.9 of 1981](/akn/ls/act/1981/9) [6] Internal Security Act (Arms and Ammunitions) [Act No.17 of 1966](/akn/ls/act/1966/17) [7] The Constitution of Lesotho 1993. Section 6(1) [8] In Duncan v Minister of Law and Order 1986(2) SA 805 at 819 H it was held that the other purpose for an arrest is to further investigations which could lead to the arrestee being released or being prosecuted. [9] (Minister of Safety and Security v Sekhoto and Another (2011 (1) SACR 315 (SCA); [2011] 2 All SA 157 (SCA); 2011 (5) SA 367 (SCA)) [2010] ZASCA 141; 131/10 (19 November 2010) at para 30. [10] Jonas v The Commissioner of Police (C of A (CIV) 53 of 2019) [[2020] LSCA 37](/akn/ls/judgment/lsca/2020/37) (30 October 2020) [11] Matete v Minister in Charge of Police and Others (C of A (CIV) 24 of 1987) [[1988] LSCA 111](/akn/ls/judgment/lsca/1988/111) (28 July 1988) [12] Officer Commanding Mafeteng Police Station v Tjela (C of A (CIV) 45 of 2020) [[2021] LSCA 23](/akn/ls/judgment/lsca/2021/23) (14 May 2021) [13] Lethole v Commissioner of Police and Others (CIV/T 4 of 2014) [[2014] LSHC 74](/akn/ls/judgment/lshc/2014/74) (12 August 2014) [14] Supra [15] Tsehla v Commissioner of Police and Another (CIV/T 463 of 11) [[2012] LSHC 42](/akn/ls/judgment/lshc/2012/42) (20 February 2012) [16] Naidoo v Senti LAC (2007 -2008)161 at 164 [17] Supra at 438 [18]Masupha v Trooper Nyolohelo Tae (C of A (CIV) 13 of 13) [[2014] LSCA 13](/akn/ls/judgment/lsca/2014/13) (17 April 2014 [19] Visser and Potgieter, _Law of Damages._ 2nd Edition, Juta at page 443-444 [20] Pitt v Economic Insurance Co. Ltd 1957 (3) SA 284 (D) at 287F [21] Lesetla v Commissioner of Police and Another (C of A (CIV) 31 of 2014) [[2014] LSCA 45](/akn/ls/judgment/lsca/2014/45) (24 October 2014) at para 17 [22] Visser and Potgieter, Law of Damages supra at 444 [23] Makhaba v The Commissioner of Police (CIV/T 319 of 11) [[2017] LSHC 38](/akn/ls/judgment/lshc/2017/38) (14 November 2017) [24]Supra [25] Mosehle Molise v Officer Commanding Thaba- Tseka police post and 2 others (CIV/T/40/2012) [[2013] LSHC 74](/akn/ls/judgment/lshc/2013/74) (11 March 2013) [26] Visser and Portgieter, Law of Delict Supra at page 99 [27]Sigournay v Gillbanks 1960 (2) SA 552 at 571 [28] Minister of Police v Mbilini 1983(3) SA 705 at 715 [29] Delange v Costa 1989(2) SA 857 at 860-861 [30] Commander Lesotho Defence Force v Makhele (C of A (CIV) 39 of 2017) [[2018] LSCA 29](/akn/ls/judgment/lsca/2018/29) (7 December 2018) [31] Senior Inspector Sepinare Masupha v Trooper Nyolohelo Tae (C of A (CIV) 13 of 13) [[2014] LSCA 13](/akn/ls/judgment/lsca/2014/13) (17 April 2014) [32] Supra [33] Supra [34] Supra #### __Related documents ▲ To the top >