IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/82/2004
In the matter between:
‘MATŠEPO TŠITA Plaintiff
TROOPER PEETE NTLAMA 1st Defendant
TROOPER LEHLOHONOLO LETSIE 2nd Defendant
TROOPER RAMOTEKOA 3rd Defendant
TROOPER NTLATLAPA 4th Defendant
TROOPER PELELE LEHLOENYA 5th Defendant
THE COMMISSIONER OF POLICE 6th Defendant
Delivered by the Honourable Mr. Justice T. E. Monapathi
On the 18th day of February, 2009
1. The court was urged that the Plaintiff’s son (Tšepo) (Deceased) died through injuries received while he was in police custody. This aspect was uncontested. The circumstances can only be described as unsavoury. That the Deceased had been under control of the servants of the sixth Defendant when he received injuries that resulted in his death.
2. The Plaintiff, a widow who alleged that she partially depended on the Deceased for a living, sued Defendants for payment of:
Payment of Two Hundred and Forty Thousand Maloti (240,000.00) loss of support.
Payment of Twenty Three Thousand Seven Hundred and Sixty Seven Maloti (23,767.00) funeral expenses.
Interest at the rate of 18.5% per annum tempore morae.
Costs of suit.
3. The claim became defended. At hearing Plaintiff led the evidence of two witnesses including herself as PW2. The Plaintiff closed her case. Then in my view Plaintiff’s case had become formidable more especially on the aspect of the circumstances and the total injuries of the Deceased. Defendants then closed their case without adducing any evidence. It could consequently be said that the evidence of the Plaintiff and her two witnesses had not been gainsaid or challenged, for absence of a better word.
4. The evidence of PW1 Ntai Tau a co-detainee at Mabote Police Post showed as follows: That was in November 2003 when he was arrested. The Deceased arrived and was put in the same cell as that of the witness. Deceased was later taken out of the cell at night. He came back having been brutally assaulted and was left for dead in the morning. Deceased was much later released for examination by Dr. Mojalefa Bulane, a private practitioner.
5. PW2 (Plaintiff) gave evidence. She first testified that she was a widow, after having lost her husband in 1990. She testified that Deceased was her eldest son and that before his death Deceased used to work at one ‘Neko’s business. She testified that her son used to contribute M1000.00 per month to the family leaving M700.00 for himself. She also spoke about the funeral expenses for burial of Deceased. All these stood unchallenged and uncontroverted.
6. PW2 testified further that she was a teacher and that she earned M2007.00 per month. Other than that PW2 testified as to the circumstances under which Deceased was arrested, was late detained and died as a result of the injuries received while he was in police custody.
7. Dr. Bulane was called as PW3. He testified and handed in his report from which he read. He started to say that on 16th November 2003 he received, in his surgery, the Deceased who was experiencing severe bleeding as result of alleged assault by police officers while in detention. He had previously been admitted to Leribe Hospital. He observed Deceased to have multiple injuries including a fractured ulna and radius. He was put on antibiotics and pain killers.
8. PW3 was detailed to conduct an autopsy on the Deceased who had since died after the observation of the 16th November, 2003. Another doctor had previously made an examination. The results were severely criticized by PW3. That must be the reason why PW3 was consulted. PW3’s observations were that there was massive bleeding into all organs of the upper body, that is the heart, the lungs and the abdomen. The cause of death was heart failure. This was the result of that massive bleeding i.e. anaemia and pericardial effusion. “Anaemia could have been the result of nose bleeding or any other loss of blood that might have occurred after injuries were inflicted.” This confirmed the severe injuries observed on the Deceased.
9. In his criticism of PW2’s evidence Mr Motsieloa contended that there was no evidence of her being indigent “at all”. Furthermore that Plaintiff failed to explain to the court what her lifestyle was while the Deceased was alive and how his contribution was applied towards the running of the home. In other words as counsel further challenged, Plaintiff has failed to explain how the quality of her life had deteriorated following her son’s death and her failure to justify the M1000.00 contribution.
10. I questioned the Crown Counsel’s approach as follows: While he may have adverted to the issue raised in his criticism while PW2 was being cross-examined, it was unfair to assume that PW2 had failed in the absence of contradicting evidence and where she was not shaken in the cross-examination. Otherwise this would amount to equating cross-examination with evidence in rebuttal. It is not. That is why Mr Phafane for the Plaintiff consistently remarked at absence of rebuttal.
11. The only criticism that this court has and a serious doubt at that, is that it is unlikely that the Deceased contributed such a large hunk of his salary to the upkeep of Plaintiff and family. There is an exaggeration somewhat on the part of the Plaintiff. Deceased could not have contributed more than a third of his salary, objectively speaking, even if there is such a duty in law.
12. The court was not persuaded that merely because another doctor had found through autopsy that the cause of Deceased’s death was tuberculosis and malnutrition was a ground for rejecting the other impressive and articulate testimony of Dr. Bulane (PW3). A fair doctor, as he was, might have said “there might have been another cause of death.” He did not. He was most positive in my view.
13. The other doctor who was in absent was, in my view objectively truly discredited. To mention but one aspect, Dr. Bulane questioned the fact that for the other to have come to the conclusion that he came to a laboratory test should have been conducted. There was none. I thought all other attacks on PW3 were spurious. I therefore felt that Dr. Bulane like all other witnesses for Plaintiff were truthful.
14. Indeed I accepted the medical report as to the cause of death (Exhibit “A”). Invoices and receipts evidence the funeral expenses claimed and comprising inter alia coffin, tombstone, beast and other necessaries (Exhibits “B” “C” “D” “E” and “F”) went a long way to support the claim in the summons. That the Deceased was gainfully employed was proved by that Exhibit “G” being a certificate from his employer (‘Neko Electrical (Pty) Ltd). I considered that these were adequately proved.
15. In my view in this case there was only one major disagreement between Counsel. It was as to the law with regard to the issue of duty to maintain a Plaintiff who is not indigent. I emphasize the requirement for indigency. This I will now speak about together with the findings that I will make. It was submitted in that regard as follows.
16. The present case is about the parent claiming loss of support and not the other way round. In that regard Defendants Counsel referred to Oosthuizen v Stanley 1938 AD 322, where Tindall JA said at 327 – 328:
“The liability of children to support their parents if these are indigent, is beyond question”. (My emphasis).
Again the court in Van Vuuren v Sam 1972 (2) SA 633 (A) observed as follows:
“Support is confined to basic human requirements such as food, clothing, accommodation and medical care and that no such person can be regard as indigent unless he lacks some or all of these necessities of life.”
And yet again in Smith v Mutual and Federal Insurance Co. Ltd 1998 (4) SA 626 the court held that the proof of indigency, a stringent criterion of need, had to be established and the obligation upon Plaintiff to place adequate evidence before the court to discharge the onus was particularly important where a defendant could not contradict a plaintiff’s evidence. To be indigent meant to be in extreme need or in want of basic necessities of life. It was apparent that according to the Defendants there was no case made if indigency was not proved.
17. Plaintiff’s Counsel on the other hand submitted as follows: That it was testified that dependent of a Deceased person can claim compensation for the loss they have suffered in consequence of the death. That furthermore the action for compensation is open not only to the children or widow of the Deceased but also to any person to whom the Deceased was under duty to render support whether in money or domestic services including food, clothing in accordance with the quality and condition of the person to be supported as well as lodging and care in sickness. I was referred to Oosthuizen v Stanley (supra).
18. Mr Phafane argued that for above reasons, a minor son who is in need of assistance from his mother will be allowed action against a person who kills his mother. Counsel emphasized that similarly a parent can sue for the loss of support rendered by a child or a grand parent for the loss of support rendered by the grandchild. Counsel referred me to the following cases: Graaf v Speedy Transport 1944 TDD 236, Ford v Allen 1925 TPD 5, Motan v Joosuds 1930 AD 61 and Nkabinde v SA Motor General Insurance Co. Ltd 1961 SA 302.
19. With regard to the need to allege indigency Counsel submitted that although in a claim by a parent for loss of support of a child Plaintiff is expected to allege indigency in his evidence this is otherwise so it has been held in a case of a claim by a widow or minor child. In such a case the relationship itself creates a duty to maintain and the Plaintiff need only allege the existence of the relationship. I was referred to Geldenhys v Transvaal Hindu Education Council 1938 WLD 260 and Stander v Royal Exchange Insurance Co. 1962 (1) SA 454 (SWA).
20. It was further submitted that the above was the situation because a child (even if a minor) has a duty to support its mother if she requires such a support. In any event, as further contended indigency was a relative condition. It will depend on individual and the circumstances of each case. See Oostshuizen v Stanley (supra) and Dolbey v Goodwin 1955 (2) All ER 166 (CA). The latter case was used as support to the concession which Counsel made that in assessing the sum or the award under the head of support the court will take into account the possibility of the deceased’s marriage and thus reducing the some of maintenance per month to the Plaintiff.
21. I have already accepted that the damages as to the funeral expenses have been proved and that I would accordingly grant judgement as prayed under the head. It remains for me to finally decide on the issue of support. I do so now.
22. For the plaintiff to succeed he must prove on a balance of probabilities that the deceased owed her a duty of support. Because the duty of support between parent and child is reciprocal, a child may be obliged to support his parent in appropriate circumstances. For the legal obligation to exist it is required that; (a) the parent must be indigent i.e. unable to maintain himself or herself and (b) the child must be able to maintain his parents, with due regard to his own needs. See P.Q.R Boberg - The Law of Persons and The Family (1977) Page 267.
Again, Cloete JA in Du Plessis v. Road Accident Fund 2004(1) SA 359 at 370 para 10 pointed out that a dependent’s claim for loss of support as a result of the unlawful killing of another, being a claim for pure economic loss, will be valid if the deceased had a legally enforceable duty to support the dependent.
23. In the instant matter, it is Plaintiff’s testimony that she is a teacher and that she earns M2007.00 per month. Furthermore, she alleged that the deceased used to contribute M1000.00 per month. It is therefore clear from the plaintiff evidence that the M1000.00 that she was allegedly receiving from her son every month was only a contribution on top of her own salary. Meaning, that contribution from her son was not the only source of her income because she is also employed as a teacher.
24. The plaintiff in this matter has not adduced any evidence to the effect that she is unable to support and maintain herself, or put differently that she is unable to meet her basic necessities of life. It is also common cause that the Plaintiff is earning more than her son and it would be illogical to say that plaintiff is unable to support herself.
25. What I have observed is that the contribution of M1000.00 by the deceased to the Plaintiff arose out of their relationship as parent and child. We can say it was only a moral duty or obligation on the deceased to support her mother but it was not a legally enforceable duty which can be said to be a subject of compensation owing to the death of the child.
25. In the circumstances, I am not satisfied that the Plaintiff proved that she is indigent and that the deceased was legally bound to support her at the time of his death. The deceased therefore, owed the plaintiff no legal duty of support.
26. There remains to be considered an order as to costs. Plaintiff has been successful in proving the damages under the head of funeral expenses on the other hand she has been unsuccessful in regard to the main claim under the head of loss of support. In my view, it would be appropriate to order that each party bear its own costs.
27. The following order is made:
1) The Plaintiff’s claim for payment of damages for loss
of support fails.
2) The Plaintiff is awarded damages in regard to the
3) Interest at the rate of 18.5% per annum tempore
4) Costs of suit are awarded to the Plaintiff.
For Plaintiff: Mr. Phafane
For Defendants: Mr. Motsieloa