Mahapela Mohale V COMPOL (CIV/T/134/2021) [2023] LSHC 258 (3 October 2023)

# Mahapela Mohale V COMPOL (CIV/T/134/2021) [2023] LSHC 258 (3 October 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/258/eng@2023-10-03) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/258/eng@2023-10-03) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/258/eng@2023-10-03) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/258/eng@2023-10-03) [ __](mailto:?subject=Take a look at this document from LesLII: Mahapela Mohale V COMPOL \(CIV/T/134/2021\) \[2023\] LSHC …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/258/eng@2023-10-03) [ Download PDF (251.1 KB) ](/akn/ls/judgment/lshc/2023/258/eng@2023-10-03/source) Report a problem __ * Share * [ Download PDF (251.1 KB) ](/akn/ls/judgment/lshc/2023/258/eng@2023-10-03/source) * * * * * Report a problem __ ##### Mahapela Mohale V COMPOL (CIV/T/134/2021) [2023] LSHC 258 (3 October 2023) Copy citation * __Document detail * __Related documents * __Citations 5 / - Citation Mahapela Mohale V COMPOL (CIV/T/134/2021) [2023] LSHC 258 (3 October 2023) Copy Media Neutral Citation [2023] LSHC 258 Copy Hearing date 26 September 2023 Court [High Court](/judgments/LSHC/) Case number CIV/T/134/2021 Judges [Ralebese J](/judgments/all/?judges=Ralebese%20J) Judgment date 3 October 2023 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** **HELD AT MASERU CIV/T/134/2021** In the matter between: - **MAHAPELA MOHALE PLAINTIFF** **AND** **COMMISSIONER OF POLICE 1 ST DEFENDANT** **ATTORNEY GENERAL 2 ND DEFENDANT** **JUDGMENT** **CORAM : M. P. RALEBESE J.** **HEARD :** **26 SEPTEMBER 2023** **DATE OF JUDGMENT : 03 OCTOBER 2023** **_SUMMARY_** _Claim for damages for pain and suffering – Paucity of information on to prove the claim affects the awards_ **_ANNOTATIONS_** **_CITED CASES_****:** **_LESOTHO_** 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). Officer Commanding Roma Police and Others v Khoete and Another (C of A (CIV) 70 of 2011) [[2012] LSCA 21](/akn/ls/judgment/lsca/2012/21) (27 April 2012) 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) Makhaba v The Commissioner of Police (CIV/T 319 of 11) [[2017] LSHC 38](/akn/ls/judgment/lshc/2017/38) (14 November 2017) **_SOUTH AFRICA_** Protea Assurance Co Ltd v Lamb 1971(1) SA 530. **_STATUTES_****:** Police Service Act No.7 of 1998 **_BOOKS_** Visser and Potgieter, Law of Damages 2nd Edition, Juta at page 443 **Ralebese J.** **Introduction and Background** [1] The plaintiff, a Mosotho male adult of Ha Mafaleng Pitseng in Leribe instituted the summons in terms of which he claimed M500,000.00 for pain and suffering consequent to being assaulted and tortured by members of the police service; interest on that amount at the rate of 18.5% per annum from the date of the issue of the summons and the costs of suit. He abandoned a claim for M500,000.00 for assault and torture as it was a duplication of the claim for pain and suffering. [2] Though the defendants had initially opposed the whole of the plaintiff’s case, they ultimately admitted that the defendant had been assaulted while in police custody. The defendants therefore admitted liability for the pain and suffering that the plaintiff alleges to have sustained in the hands of the police who were then acting within the scope of their employment. The defendants however opposed the quantum of the compensation that the plaintiff has claimed. [3] The only issue for determination therefore is the quantum of the compensation that the plaintiff has claimed for pain and suffering consequent to being assaulted by the police. [4] The Plaintiff elected not to lead evidence but to stick to the facts outlined in the declaration and the statement that he filed of record in in preparation for the trial. His case therefore is as outlined in the declaration and the statement. The plaintiff’s case is that on 08th November 2020 he was arrested by the police officers from Pitseng police station who detained him in a holding cell. In the midday of the same day, he was led to the Criminal Investigation Department (CID)where he was interrogated about the death of one ’Mathuso Khoaele who was the resident of Ha Mafaleng. The plaintiff was questioned whether he had a hand in the death of the said ’Mathuso. He denied any involvement in her death. The CID officers told him that he would admit to the killing of ’Mathuso under the circumstances that he would never forget. [5] The plaintiff was directed by the CID officers to place both his hands on the back, and he was handcuffed. He was made to sit on the bench while one police officer placed his knee on his shoulders and with his hands pulled the plaintiff backwards to expose his chest. The other police officer assaulted the plaintiff with a knobkerrie on the chest. When the assault stopped, the plaintiff coughed and spit some blood. The police officers again covered the plaintiff’s head with a refuse bag and suffocated him. While he was suffocated, he was assaulted on the knees and legs with a hammer. After the assault, the plaintiff was taken back into the holding cell where he was detained until 10th November 2020 when he was released. [6] The plaintiff in argument relied on the medical booklet and the medical form (LMPS 47 form) which he had annexed to his statement filed in preparation for the trial as proof of the injuries that he sustained. The copy of the medical booklet shows that the plaintiff was examined at Pontmain Health Center on 10th November 2020, the same day that he was released from custody. The health booklet shows that he had a laceration on the right buttock, bruises on the right outer thigh and on the right hip at the back. These injuries are not consistent with the assaults that the plaintiff is alleged to have endured in the hands of the police officers. The medical booklet makes no mention whatsoever of the injuries that could reasonably be expected from an assault with a knobkerrie on the chest or with a hammer on the knees and legs. [7] The medical form on the other hand shows that the plaintiff was examined by the doctor at Motebang hospital on 23rd December 2020, more than a month since he was assaulted. The medical form indicates that the plaintiff had injuries on the neck, the knees, and the lower back. Apart from the tenderness on the knees which might assumably be consistent with an assault with a hammer, the injuries recorded on the medical form are not consistent with the assaults that the plaintiff is alleged to have sustained in the declaration. Considering the length of time that had lapsed since the plaintiff was assaulted and when he was examined by the doctor, there is doubt whether the tenderness on the knees can be linked directly to the assaults that the plaintiff endured in the hands of the police on 8th November 2020. [8] The plaintiff elected not testify with the implication that the discrepancies, inconsistencies and doubts as detailed above remain unexplained. The critical question at this stage is which of these contradictory pieces of information regarding the nature of injuries that the plaintiff sustained should be considered as founding the plaintiff’s case. The principle enunciated in the case of **Frasers Lesotho Ltd v Hata-Butle (Pty) Ltd**[1] is that the pleadings are the primary point of reference to determine the cause of action, the material facts on which the plaintiff relies for its case, the case which the defendants are called upon to answer, and the issue which the court is called upon to adjudicate. Premised on this principle, the court will focus on the facts that are detailed in the declaration as the ones that found the plaintiff’s claim. The details contained in the health booklet and the medical form are therefore discounted, firstly because they are not part of the pleadings and secondly because they are not credible and reliable. [9] The major issue to be determined by the court is whether M500,000.00 is the fair compensation to which the plaintiff is entitled for pain and suffering. Since pain and suffering cannot be arithmetically measured in terms of money, the major determinant in the assessment of fair compensation is the subjective experience of the plaintiff. This subjective experience is determined on the basis of the intensity, nature and duration of the pain and suffering that the plaintiff alleges to have endured in the hands of the defendants[2]. Having considered these factors, the court should, based on the broadest general considerations, decide on the compensation that will be fair in all the circumstance of the case. While the court has the discretion in the award of fair compensation for pain and suffering, the technique of considering previous awards in comparable cases affords the court some guidance in a general way to arrive at an award which is not substantially out of general accord with previous awards in broadly similar cases[3]. This technique involves the consideration, amongst others, of factors like the similarities in the physical injuries, the nature and duration of the medical treatment, or the permanence of the injuries[4]. [10] One of the justifications advanced for the amount that the plaintiff has claimed is that the Court should demonstrate its displeasure at the police brutality and violation of the plaintiff’s human rights. The Court of Appeal in **Officer Commanding Mafeteng Police Station v Tjela**[5] made it clear that while the judiciary deprecates the escalating incidences of police brutality, Lesotho shall stick to the Roman Dutch approach where the courts should not grant punitive damages in delictual claims. As the apex court indicated, the police officers who perpetrate the acts of brutality against the citizens should be prosecuted and when convicted, deterrent sentences should be imposed upon them in order to uphold the rule of law and the respect of human rights in the country. [11] The plaintiff in this case was assaulted for one day with a knobkerrie on the chest and with a hammer on the knees and the legs. One police officer put his knee between his shoulders and pulled him backwards. He was suffocated with a refuse bag. All that he says in his statement is that he suffered untold pain and suffering and nothing more. Since the plaintiff elected not to lead evidence, and the medical records that he relied upon have been found to be unreliable, the court is in the dark regarding the following factors which would guide in the determination of a fair compensation; the degree of force used to inflict the assaults, the nature of the medical treatment he received, the degree of injury to life and the degree of immediate or long-term disability consequent to the assaults. [12] In 2017 in the case of **Makhaba v The Commissioner of Police**[6] the court made a combined award of damages for unlawful arrest and detention, assault and contumelia in the sum of M50,000.00 where the police had whipped the plaintiff, had hit him with a fist, had struck him with a knobkerrie at the back, the shoulders, around the kidney area and on the buttocks, they had kicked him, he had been suffocated and a table had been placed on his stomach. He was assaulted until he urinated and soiled himself. The injuries the plaintiff sustained resuscitated previous injuries he had sustained previously in an accident and the assaults led to him being incontinent. The nature of the assaults that the plaintiff suffered in **Makhaba’s** case are more or less similar to those endured by the plaintiff in the instant case. The difference however is that in **Makhaba’s** case the plaintiff had led evidence on the extreme intensity of the pain and suffering that he had endured as well as its effect on his life. [13] In **Lesetla v Commissioner of Police and Another**[7] the police had handcuffed and assaulted the appellant for an hour by whipping and kicking him all over the body, they suffocated him with a rubber tube. As he struggled while being assaulted his hands were injured by the cuffs. The appellant’s evidence had been that that it took him about a month to recover fully and during his recovery, he needed assistance to take a bath. The Court of Appeal awarded the appellant a composite amount of M45, 000.00 for unlawful search, arrest and detention, for shock and for pain and suffering. [14] In **Officer Commanding Roma Police and Others v Khoete and Another**[8] one of the respondents (Josiase) had been shot by a police officer on the leg. During the trial, no medical evidence was led as to the nature and extend of the wound, there was no evidence on the nature of the treatment he underwent and on the severity of the pain he suffered. Based on those considerations, the Court of Appeal awarded that respondent M15,000.00 for pain and suffering. [15] As observed from the foregoing cases, the amount claimed by the plaintiff just for pain and suffering is way too excessive. The courts have awarded far less than the amount claimed by the plaintiff _in casu_ as composite awards comprising _contumelia,_ pain and suffering, medical expenses and unlawful arrest and detention. [16] In the instant case, the court has further considered the paucity of information regarding the intensity of the assaults, the degree of pain suffered and the nature of the injuries that the plaintiff sustained. There is no information regarding the degree of disability or injury to life that arose from the assaults. There is also no information on the type of medical treatment that the plaintiff underwent since the medical evidence that he wanted to rely on could not be accepted. [17] The case that is more comparable to the instant one is that **of Officer Commanding Roma Police and Others v Khoete**[9] where the court found it difficult to assess the fair compensation using the technique of previous comparable cases due to the paucity of information. Khoete’s case was decided in 2012 and the award was M15,000.00. When the depreciating value of money is factored in, the fair compensation to which the plaintiff is entitled, in the discretion of the court considering the circumstance of this case is M30,000.00. The following sentiments expressed in the case of **Jonas v The Commissioner of Police**[10] are apposite in the circumstance of this case-: “ _It is appropriate to lament on the paucity of evidence in Jonas’ statement submitted in terms of the rules in place of oral evidence as to quantum. In our view the award could have been higher if the evidence was clearer and detailed_ ” [18] While the nature of the assaults in the case of **Makhaba v The Commissioner of Police**[11]** **are comparable with the instant case, and the award therein could offer guidance to the court on the fair compensation to be awarded to the plaintiff, the intensity of the pain and suffering and the effect of the assaults on the life of the plaintiff in that case were clear. [19] In the result the following order is made: (a) The first defendant shall compensate the plaintiff in the sum of M30,000 for pain and suffering. (b) The first defendant shall pay interest at the current lending rate of 11.25% from the date of judgment. (c) The first defendant shall pay the costs of suit. _____________________________ **_M. RALEBESE_** **JUDGE** For the plaintiff: Adv. Tlapane For the defendants: Adv. Makara * * * [1] Frasers Lesotho Ltd v Hata-Butle (Pty) Ltd LAC (1995-1999) 698 at 702 A-D [2] Visser and Potgieter, Law of Damages 2nd Edition, Juta at page 443. [3] (Protea Assurance Co Ltd v Lamb 1971(1) SA 530 at 535-6. See also 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). [4] Visser and Potgieter supra at page 441 [5] 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) at para 39 [6] Makhaba v The Commissioner of Police (CIV/T 319 of 11) [[2017] LSHC 38](/akn/ls/judgment/lshc/2017/38) (14 November 2017) [7] In 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) [8] Officer Commanding Roma Police and Others v Khoete and Another (C of A (CIV) 70 of 2011) [[2012] LSCA 21](/akn/ls/judgment/lsca/2012/21) (27 April 2012) [9] Supra. [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) para 42. [11] Makhaba v The Commissioner of Police (supra) #### __Related documents ▲ To the top >