Lehlohonolo Masienyane V Maluti Mountain Brewery & Ano. (CIV/T/594/2013) [2024] LSHC 57 (8 May 2024)

# Lehlohonolo Masienyane V Maluti Mountain Brewery & Ano. (CIV/T/594/2013) [2024] LSHC 57 (8 May 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/57/eng@2024-05-08) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/57/eng@2024-05-08) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/57/eng@2024-05-08) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/57/eng@2024-05-08) [ __](mailto:?subject=Take a look at this document from LesLII: Lehlohonolo Masienyane V Maluti Mountain Brewery & …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/57/eng@2024-05-08) [ Download PDF (265.8 KB) ](/akn/ls/judgment/lshc/2024/57/eng@2024-05-08/source) Report a problem __ * Share * [ Download PDF (265.8 KB) ](/akn/ls/judgment/lshc/2024/57/eng@2024-05-08/source) * * * * * Report a problem __ ##### Lehlohonolo Masienyane V Maluti Mountain Brewery & Ano. (CIV/T/594/2013) [2024] LSHC 57 (8 May 2024) Copy citation * __Document detail * __Related documents Citation Lehlohonolo Masienyane V Maluti Mountain Brewery & Ano. (CIV/T/594/2013) [2024] LSHC 57 (8 May 2024) Copy Media Neutral Citation [2024] LSHC 57 Copy Hearing date 5 March 2024 Court [High Court](/judgments/LSHC/) Case number CIV/T/594/2013 Judges [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ) Judgment date 8 May 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) * [Quantum of Damages](/taxonomy/case-indexes/case-indexes-commercial-civil-remedies-damages-quantum-of-damages) Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held at Maseru CIV/T/594/2013** In the matter between: **LEHLOHONOLO MASIENYANE 1 ST PLAINTIFF** **‘MAKABELO MASIENYANE 2 ND PLAINTIFF ** **AND** **MALOTI MOUNTAIN BREWERY 1 ST DEFENDANT** **TEBOHO SOSA TSEPANE 2 ND DEFENDANT** _Neutral Citation:_ Masienyane and Another v Maluti Mountain Brewery and Another [2024] LSHC 57 Civ (8 May 2024) **CORAM: S.P. SAKOANE CJ** **HEARD: 07 TH SEPTEMBER, 27TH SEPTEMBER, 20TH NOVEMBER ** **2022, 06 TH MARCH, 21ST AUGUST, 20TH, 21ST NOVEMBER 2023 and 05TH MARCH 2024** **DELIVERED: 8 TH MAY 2024 ** **SUMMARY** Damages - plaintiff’s house partially destroyed by 1st defendant’s truck – liability admitted – defendant making offer to repair the house but offer rejected - plaintiff seeking its replacement by new house – no valuation of the house before and after damage – whether plaintiff entitled to damages of building a new house, pay for rental for alternative accommodation, and emotional shock - rate of interest reduced from 18% to 7.75% in accordance with the repo rate published by the Central Bank. **_ANNOTATIONS_****:** **_CASES CITED_****:** _LESOTHO_ Commander of Lesotho Defence Force And Another v. Magaga LAC (2011-2012) 263 Xing Long Enterprise (Pty) Ltd v. Zhong Sing (Pty) Ltd And Another LAC (2015-2016) 515 _SOUTH AFRICA_ Kellerman v. South African Transport Services 1993 (4) SA 872 (CPD) 1. **INTRODUCTION** [1] This case is about compensation for a house that was knocked by a truck in March 2013 and two rooms and furniture destroyed. Liability is admitted and the defendants offered in amount of M250,000.00 which the defendants rejected. The dispute is, therefore, not about liability but the extent of the damage and costs necessary for the repairs. The court’s task is to evaluate the nature and extent of the damage to the house and the movables and to make a determination on the appropriate compensation. An added task is to answer the question whether the plaintiff should be compensated for loss of enjoyment of use of the house and emotional stress. **Damages Claimed** [2] Plaintiff’s summons sued out in 2013 set out the claim as follows: “(a) Payment of damages in the sum of M421, 983.00; (b) Interest at the rate of 18.5% per annum, calculated from 14 days from the date of judgment to date of payment; (c) Cost of suit. (d) Further and/ or alternative relief. **Alternatively: -** (a) Ordering the Defendants to reinstate the Plaintiff’s house and household property; (b) Cost of suit. (d) Any further and/ or alternative relief.” [3] During the course of proceedings, the summons were amended pitching the claim higher as follows: “(a) Payment of an amount of M447, 830.00 being the reinstatement value of the plaintiff’s house damaged by the Defendants; (b) Payment of an amount of M52, 908.00 being for damages to the Plaintiff’s household property; (c) Payment of an amount of M200, 000.00 being for damages for deprivation of convenience and comfort to use and enjoyment of own property; (d) Payment of an amount of M750.00 per month equivalent to the rent value to be calculated from 9th March 2013 to date of payment together with 10% per annum escalation. (e) Payment of an amount of M100, 000.00 being for emotional stress suffered by the Plaintiffs; (f) Interest thereon at the rate of 18.5% per annum to be calculated from 14 day from date of judgment to date of payment. (b) Cost of suit. (d) Any further and/ or alternative relief. **Alternatively: -** (a) Ordering the Defendants to reinstate the Plaintiff’s house and household property; (b) Payment of an amount of M200, 000.00 being for damages for deprivation of convenience and comfort to use and enjoyment of own property; (c) Payment of an amount of M750.00 per month equivalent to the rent value to be calculated from 9th March 2013 to date of payment together with 10% per annum escalation. (d) Payment of an amount of M100, 000.00 being for emotional stress suffered by the Plaintiffs; (e) Interest thereon at the rate of 18.5% per annum to be calculated from 14 day from date of judgment to date of payment. (f) Cost of suit. (g) Any further and/ or alternative relief.” **II MERITS** **Plaintiff’s case** [4] ‘ _Makabelo Masienyane_ (PW1) testified that hers was a five-roomed house. Two rooms were damaged including a door and windows. The impact caused a fallen ceiling and cracks which let the rain, wind and cold to enter. The movable property that also got damaged consists of the following: 4.1 From her bedroom: 1. a wardrobe; 2. a small radio; 3. a bigger radio; 4. pair of shoes; 5. a washing basket; 6. a bed with a headboard, mirror and chair; and 7. jewelry in the form of earings and other accessories. 4.2 From the children’s bedroom: 1. a queen-sized bed; 2. a three-quarter sized bed; 3. a wardrobe; 4. a deep freezer; 5. a bucket; 6. kid’s pants; 7. night wear; 8. a single-sized mattress; and 9. curtains [5] The house has not been repaired and movables not replaced to date despite quotations from furniture shops to the tune of M52, 908.68. These quotations were sought in 2013. [6] When cross-examined about the amounts claimed, she answered that the figure of M447, 830.00 was for the reinstatement of her house. It was based on the quotation from a building contractor. PW1 admitted that the 1st defendant made an offer to repair and replace the damaged part of the house and the movables. M200, 000.00 was for deprivation of convenience and comfort to use and enjoyment of her property. M750.00 per month was equivalent to the amount of rent she could have paid if she had rented. M100,000.00 was for emotional distress caused by people’s remarks saying “This house is still not yet fixed.” [7] When shown a photo of the damaged two rooms, she agreed that it is only those two rooms that were damaged. She also conceded that two months after the incident, the defendant made a written offer to fix the damage. The offer was M210, 000.00 for the repair of the damaged rooms and M40,000.00 for the furniture and utensils. But she rejected the offer because the money was below the quotation of the building contractor whom they had engaged to build a new house. [8] _Tsikoane Sello_ (PW2) is the building contractor. He testified that he prepared quotations for the purpose of rebuilding the plaintiffs’ house. The first quotation made in March 2013 was M360,000.00 as all the walls of the house were affected. Nothing happened thereafter until 2019/2020 when the plaintiff’s husband sought a second quotation. He could not recall the amount quoted. The third quotation was made in November 2021 for the amount of M576, 438.86. The second and third quotations were higher because the house was not suitable for habitation. [9] When cross-examined, he testified that his educational qualifications are a junior certificate and holds a trader’s license in construction. He visited the house three times and took photos. He inspected the house by looking at it and drew certain conclusions. [10] He was referred to quotations of material and items needed to rebuild the house and asked reasons for amounts and quantities. He answered that all were based on instructions to build a new house based on a plan supplied by the husband of PW1. When confronted with the calculations for materials needed to fix the damage by LUPCOR experts in the amount of M116, 121.43, he said he could not dispute the calculations. [11] PW2 further conceded that none of his three quotations were for fixing the damaged two rooms but for building a new house. He would not dispute evidence that the house could be repaired at a cost of M150,000.00. [12] _Sello Mpharoe_(PW3) testified that he is a civil engineer of 30 years’ experience. He was requested to inspect the damaged house and produced a report on the 15th August 2013. His opinion was that there were two options. The first was that the house could be fixed or repaired. The other option, was to build a new house in the same yard. When referred to _LUPCOR and_ LINES reports _,_ he said there were no major differences between his report and those reports in that the reports were in complete agreement on the manner of repairing the plaintiff’s house. [13] _‘Mateboho Litlhakanyane_ (PW4) testified that she is a quantity surveyor. In October 2022 she was instructed to assess costs of the structural damage to the house. Her instruction was firstly to examine the structural damage of the existing building and secondly, to examine the extent of the damage caused by the cracks due to movement of the structure and exposure to the weather. [14] She took photos of the house and compiled a report. Her assessment was that the house was not habitable and had to be demolished and rebuilt. She estimated the cost of rebuilding the house at M795, 338.94. The lapse of time since the damage contributes to the cost to rebuilt. [15] Under cross examination, she testified that her report was comprised of estimates and not actual or real figures pertaining to the damage. PW4 conceded that the lack of maintenance of the house for a period exceeding ten years was bound to worsen the damage. She was given the LUPCOR and LINES reports but had no comment because she claimed that she is not allowed to criticize. **Defendants’ case** [16] After the plaintiffs’ case was closed, counsel for the defendants informed the court that he would not call two defence experts to give oral evidence. The experts’ reports were by agreement with the plaintiff’s attorney put in evidence. The two reports of LUPCOR and LINES were admitted in evidence and contents thereof not challenged. **III DISCUSSION** [17] Liability is not in dispute. What remains for determination is the quantum of damages. The plaintiffs’ figures are computed on the theory of building a new house and not the repair of the damaged two rooms. The defendants’ dispute of the figures rests on the theory of costs attendant to the repair of the damaged two rooms and not building of a new house. Hence the defendants’ offer of M250,000.00 as costs for the repair and replacement of damaged furniture. [18] The plaintiffs rejected the defendants’ offer on the ground that it was below what the building contractor had quoted for building a new house. It is not in doubt that from the start, the plaintiffs were never interested in the repair of the two rooms. They wanted a new house in replacement of the damaged portion of the house. [19] The civil engineer called by the plaintiffs opined that the house could be repaired while a new one is built in the yard. But he backtracked from this idea when confronted with the defendants’ expert reports admitted in evidence by agreement. He completely agreed with these opinions expressed in the two reports that the house should be repaired and not rebuilt. The cost of repairs estimated by the defendants’ experts is in the region of M116,122.00 and M150,000.00. These amounts are even lower than the defendants’ offer which the plaintiff rejected. **Principles on compensation for damaged house, use of temporary shelter and** **emotional shock** [20] There is no evidence on the value of the house before and after it was damaged. Clearly this is because the plaintiffs were never interested in the repair of the damaged two rooms. They wanted to build a new one. So instead of making a proper evaluation of the house, they sought building quotations and cost estimates by the quantity surveyor. The latter’s estimates are not based on empirical evidence. Her observation and costs estimate are based on the progressive deterioration of the house over the years due to lack of maintenance. [21] The method for accessing damages to property is enunciated in **Magaga**[1]**** as follows: “[3] The law is clear with regard to how damages to a vehicle are to be assessed in a matter such as the present. The normal and appropriate method of doing so would be to calculate the difference between the market value of the vehicle concerned before it was damaged, and the market value thereafter. Failing agreement, the before and after value of the vehicle would have to be properly established by admissible evidence. Another appropriate method, and one frequently applied, is to take as the measure of damages the reasonable cost of restoring the vehicle to its original (pre-damaged) condition. However, the cost of repairs as a method to establish damages would not be appropriate if such cost would clearly be in excess of the diminution in value of the vehicle _…_ ” [22] Compensation is for patrimonial loss and not inconvenience, discomfort, annoyance or vexation as pronounced in **Kellerman**[2]**** where the court said: “At common law in this country, the remedy for negligently causing damage to a _res_ is to be found in the _lex Aquilia_. It does not afford compensation for anything other than patrimonial loss. There can therefore be no compensation for inconvenience, discomfort, annoyance or vexation _per se._ But saying that is not the same as saying that compensation can never be recovered for the loss of use of a _res_ which is not used in the generation or production of income, even although such loss of use has caused patrimonial loss. Where the deprivation of use of such a _res_ occurs in circumstances and at a time which make it entirely reasonable for the owner of the _res_ to make use of a temporary substitute and he suffers patrimonial loss as a consequence, I see no good reason why the defendant should not have to compensate him for that. That is not compensating him purely to assuage his sense of annoyance or vexation at having temporarily lost the use of the _res_. It is compensating him for expense reasonably incurred in actually averting the loss of use to which he was entitled. He will of course not be entitled to an additional sum to compensate him for the inconvenience to which he has been put by having to hire a substitute.” **Emotional shock** [23] **Magaga**[3] clearly points out that compensation for emotional shock or suffering must be proved by psychiatric evidence of injury or illness. In _casu_ , the 2nd plaintiff’s testimony is that the mental anguish came about as a result of comments of passers-by and third parties who expressed dismay that the damaged house remained unrepaired for a number of years. [24] Plaintiffs have left the house unmaintained not effected any repairs to the damaged property since 2013. The damage has worsened down the years and estimated costs of repairs ballooned. This should not be put at the door of the defendants whose offer to repair the house and pay for the movables still stands. [25] The plaintiffs never moved out of the house to rent alternative housing elsewhere. There is no basis for claim of expenses in this regard. [26] The finding, therefore, is that plaintiffs’ claim for damages only stands in regard to repairs to the damaged parts of the house and movables. Counsel confirmed that its offer of M250,000.00 still stands and it is the amount of damages that should be paid. However, inflation has taken a toll since 2012. The best that I can do is to increase the amount by M50,000.00. This brings the total amount of compensation to M300,000.00. [27] The plaintiffs claim interest at the rate of 18%. There is nothing in the pleadings and evidence to justify it. The defendants do not take issue with that. The Court of Appeal[4] has repeatedly said that absent legal guide, a fair and just amount of interest should be calculated in accordance with the Repo Rate fixed as published by the Central Bank. The Repo Rate is in the public domain, readily available and not productive of dispute. [28] The current Repo Rate as published for the fiscal year March 2023 to March 2024 is fixed at 7.75%. I, therefore, reduce the claimed 18% interest to 7.75%. **Order** [29] In the result, I issue the following order: 1. The plaintiffs’ claim for damages succeeds in respect of the damaged parts of the house and movables. 2. The plaintiff is awarded damages in the amount of M300,000.00 with 7.75% interest rate calculated from the date of judgment. 3. Costs of suit. **\-------------------** **S. P. SAKOANE** **CHIEF JUSTICE** **For the Plaintiff** : Ms. L.M. Lephatsa **For the Defendants** :**** Adv. P.R. Cronje * * * [1] Commander of the Lesotho Defence Force And Another v. Magaga LAC (2011-2012) 263 [2] Kellerman v. South African Transport Services 1993 4 SA 872 (CPD) at paras 877H – 878B [3] Footnote 1 [4] Xing Long Enterprise (Pty) Ltd v. Zhong Sing (Pty) Ltd and Another LAC (2015-2016) 515 #### __Related documents ▲ To the top >