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Commander, Lesotho Defence Force and Others v Letsie (C of A (CIV) 28/09)
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C of A (CIV) 28/09
In the matter between:
DEFENCE FORCE ….......................................................................1st Appellant
COMMISSIONER OF POLICE ….................................................2nd Appellant
ATTORNEY GENERAL ….............................................................3rd Appellant
TLHORISO LETSIE …......................................................................Respondent
CORAM: SCOTT JA
HEARD: 12 OCTOBER 2010
DELIVERED: 22 OCTOBER 2010
Action for damages for assault amounting to torture – court a quo awarding general damages of M340 000 – on appeal award reduced to M150 000.
 The respondent is an officer in the Lesotho Defence Force. On 12 December 2004 he was arrested and detained until 24 December 2004 when he was released in pursuance of an order granted by Monapathi J. During his detention he was tortured by members of the Military Intelligence and, or with the assistance of, members of the Lesotho Mounted Police, all of whom, it is common cause, were acting in the course and scope of their employment. On 30 November 2005 the respondent instituted an action for damages against the appellants in which he claimed payment of the sum of M750 000, made up as follows: M300 000 for unlawful arrest and detention; M300 000 for pain and suffering, and M150 000 for contumelia. At the commencement of the trial the respondent abandoned his claim for unlawful arrest and detention but proceeded with the remaining claims. The respondent and a doctor in private practice who examined him shortly after his release gave evidence. Neither was cross-examined. The appellants closed their case without tendering evidence. The only issue in the court below was the quantum of damages. The trial was before Madam Justice Chaka-Makhooane who ultimately awarded the respondent damages in the sum of M340 000, made up of M250 000 for pain and suffering and M90 000 for contumelia. In this court counsel for appellants did not point to any misdirection on the part of the learned judge. His sole complaint was that the award was excessive.
 The respondent testified that on the evening of 12 December 2004 members of the military police arrived at his house and told him that he was wanted at the military police offices at Ratjomose. When he arrived there he was arrested and detained for having allegedly conveyed a message from a Mr. Lerotholi, who was then being detained at the Makoanyane Barracks, to the latter’s home. It transpired that Lerotholi had subsequently escaped.
 Four days later, on 16 December 2004, a prison warder came to the respondent’s cell at about midnight and told him that for security reasons he was being transferred to the military police cells at Makoanyane. The respondent said he was handcuffed and his legs fettered before being taken to the military intelligence offices. He was led into a room where a number of people were present and ordered to sit on a swivel chair. One of those present flung a blanket over his head and a rope was tied around his waist so as to keep the blanket in place. He said he felt hands pressing the blanket over his nose and mouth and he struggled to stop them from suffocating him. In the struggle he fell to the floor. There, he was kicked all over his body. Someone jumped on his wrists causing the handcuffs to cut into his wrists. Another person grabbed hold of and pulled his penis and testicles. The respondent described the pain as excruciating. All the while someone else was attempting to suffocate him. He said that eventually he could not breathe and he lost consciousness. He later came round to find someone pouring water over his head and face. He was asked where Lerotholi was and how he had managed to escape. The respondent’s answer did not satisfy his tormentors and there was again an attempt to cover his nose and mouth which persisted until he again lost consciousness.
 Eventually he was taken back to the cells at Ratjomose. The morning routine was then just beginning and the respondent estimated that the torture must have gone on for about four hours. He found that he was handcuffed with two sets of handcuffs. One set was removed but the key could not be found for the other set. His hands were bleeding and he had to wait for about an hour before someone arrived with the key. His throat was dry and he asked for water. This was refused. Instead, he was offered food which he was unable to eat. Eventually he was given a rationed amount of water.
 Later that morning, i.e. the morning of 17 December 2004, at the respondent’s request, he was taken to the Makoanyane Military Hospital. The officer escorting him instructed the doctor who attended to him not to give him a medical report. The respondent requested both a report and to be admitted as a patient. The doctor said he had no sympathy for prisoners and refused both requests. He did, however, indicate that he wished to see the respondent on a daily basis in order to attend to his injuries.
 On 19 December 2004 the respondent was again taken to the military intelligence offices. This time he was not only handcuffed but in addition a hood was placed over his head. He could not see but he guessed that he was taken to the same office. He was made to sit and a plastic bag was placed over his head and fastened around his neck. When he tried to inhale the bag clung to his face and he was unable to breathe. After a while he lost consciousness. When he came to, he was again questioned about Lerotholi’s escape. Once again his interrogators were not satisfied with the answers he gave and the process of putting the plastic bag over his head was repeated two or three times. On this occasion, however, he was not physically beaten.
 On 23 December the respondent was once again taken to the military intelligence offices. Once again he was handcuffed and a hood placed over his head. Once again a plastic bag was used to prevent him from breathing. As before, the bag was kept in place until he lost consciousness. But, on this occasion, when he regained consciousness he found himself back in his cell at Ratjomose.
 The respondent testified that by this time his hands were so swollen and he was generally so sore that he could not handle anything, not even a bar of soap. He was able to wash only with the assistance of a few good Samaritans who were allowed into the shower to help him wash and to wash his clothes. Even eating was difficult.
 On 23 December 2004, when he was at hospital for his daily treatment, a message came that he had to be taken back to Ratjomose immediately. When he arrived there he was taken to court. He appeared before Mr. Justice Monapathi who, on observing his condition, ordered his immediate release. Presumably friends or the family of the respondent had sought an urgent order for him to be brought to court.
 On 29 December 2004 the respondent was examined by a doctor in private practice, Dr. ‘Musi Mokete. The examination revealed that there was a bruise on the right lateral side of the forehead; the movement of the neck was limited because of pain, there were multiple gross parallel abrasions on both wrists, compatible with double cuffing; both hands had a weak grasp with a lack of sensation on being touched; the rib cage on the right side was very tender; there were abrasions on the medial and lateral sides of both knees; there was a ‘raw’ abrasion on the left ankle and the right ankle was tender to pressure. The doctor expressed the view that “all injuries [were] compatible with the use of blunt object/s applied with considerable force and dangerous to life.”
 The respondent testified that in addition to the horror and humiliation of the torture he had endured he found the experience of being paraded through the streets of Ratjomose and Makoanyane under an armed guard comprising persons who were his juniors in rank to be most humiliating. He said that his attendances at the hospital were similarly a humiliating experience. He was viewed as a suspect and a criminal and wherever he went he could see people staring at him wondering what he had done. He said that he still experienced “flashbacks” of the torture sessions he had endured and on occasions felt “panicky” and “apprehensive” for no apparent reason. He had swollen joints in the winter and his right wrist remained weak.
 The respondent was subsequently charged in a military court with assisting Lerotholi to escape. One witness was called and thereafter the prosecution was not continued. It was just abandoned. The prosecution of Lerotholi resulted in the latter being acquitted.
 As I have previously said, the respondent was not cross-examined and no evidence was tendered on behalf of the appellants. There was nothing to suggest that he had been offered an apology for what had happened, nor was there evidence that disciplinary or other steps had been taken against his tormentors. Had this been done it may at least have afforded him some measure of satisfaction and peace of mind.
 Section 8(1) of the Lesotho Constitution provides that “no person shall be subjected to torture or to inhuman or degrading punishment or other treatment.” The right not to be tortured, together with the right to life, I would think, are the two most fundamental of all the rights conferred by the Constitution. The experience of being repeatedly smothered until losing consciousness – not knowing what to expect next and not knowing whether one’s last moment had come – is almost too ghastly to contemplate. The anguish, fear and pain the respondent must have experienced cannot readily be compared with the pain a person may experience in an accident or subsequently while lying in hospital where analgesics are available.
 It is well established that each case must be decided on it own unique circumstances and that the trial judge has a wide discretion to award what he or she in those circumstances considers to be a fair and adequate compensation. Nonetheless, while it is no doubt true that no two cases are precisely the same, guidance must be sought from past awards and in the absence of awards in cases considered to be comparable regard should at least be had to what Potgieter JA described in Protea Assurance Co Ltd v Lamb 1971 (1) 530 (A) at 536 B as “the general pattern of previous awards”. It is also important for the trial court to provide some reasoned basis for the amount awarded in respect of general damages, however difficult that may be. (See Road Accident Fund v. Morunga 2003 (5) SA 164 (SCA) at 172 D para 33).
 In the present case the court a quo made no reference to past awards and one is left with no idea how the amount awarded was arrived at. It is accordingly necessary to refer to the awards which I consider to be of some assistance and to compare these with the amount of M340 000 which was awarded. Given the circumstances of the case, I do not consider it practicable to assess separately an amount for pain and suffering and an amount for contumelia.
 In Mohlaba & Others v. Commander of the Royal Lesotho Defence Force and Another LAC (1995-1999) 184 the three appellants were awarded respectively sums of M75 00, M50 000 and M25 000 for unlawful detention of varying periods and for assaults while in detention. These awards strike me as extremely low but, given that they were made some 14 years ago in 1996 and the depreciation in the value of money since then, they are not of much assistance. No evidence was tendered as to past rates of inflation in Lesotho. In any event, the assaults in the present case were undoubtedly more severe. Of particular significance is the fact the respondent has not survived his ordeal unscarred. As I have said, he continues to experience “flashbacks” and on occasions feels “panicky” and “apprehensive” for no apparent reason.
 Two more recent South African awards provide greater assistance. They are both distinguishable from the present case in that the claim in each related to a violation of the plaintiff’s rights to dignity and freedom rather than to bodily integrity. In neither case was the plaintiff assaulted. Nonetheless, while the awards require considerable adjustment to accommodate the distinguishing features, they are indicative of a trend in the making of awards which provides a basis for determining an amount in the present case.
 The most recent is Rudolph and Others v Minister of Safety and Security and Another 2009 (5) SA 94 (SCA). It appeared that two of the appellants were unlawfully arrested on a Friday at 5pm and detained until approximately midday on the following Tuesday. The evidence revealed that they were detained under extremely primitive and unhygienic conditions. Their claims had been dismissed in the Pretoria High Court but on appeal each was awarded damages in the sum of R100 000 being the amount they had claimed.
 In the earlier case of Manase v Minister of Safety and Security 2003 (1) SA 567 (CkHC) a 65 year-old man had been arrested and detained for 49 days. The arrest was found to have been malicious and his detention unlawful. The evidence revealed that the detention had proved to be a traumatic experience for the plaintiff. For the “hardship, humiliation and indignity” suffered by the plaintiff he was awarded general damages in the sum of R90 000 for the malicious arrest and detention.
 Having regard to the severity of the assaults upon the respondent in the present case it seems to me that a fair and reasonable award in South Africa would have been in the region of double the amount awarded in the Rudolph case, i.e. R200 000. But some allowance must be made for the differing economic conditions in the two countries. In all the circumstances I would have awarded the respondent general damages in the amount of M150 000.
 It has been consistently held that a court of appeal will not interfere unless there is a striking disparity between what the trial court awarded and what the court of appeal considers ought to have been awarded. In the present case the Court a quo awarded more than double the amount I would have awarded. This court must therefore interfere with the court a quo’s award.
 In the result the appellants are substantially successful and are entitled to their costs of appeal.
 The following order is made:
(1) The appeal is upheld with costs
(2) The order of the court a quo is set aside and the following order is substituted in its place
“Judgment is granted in favour of the plaintiff against the first and second defendants jointly and severally, the one paying the other to be absolved, for payment of damages in the sum of M150 000, together with costs of suit”.
JUSTICE OF APPEAL
I agree: ___________________
JUSTICE OF APPEAL
I agree: __________________
JUSTICE OF APPEAL
For Appellants : R. Motsieloa
For Respondent : M. Rabotsoa