BOSILONG v ATTORNEY-GENERAL AND ANOTHER 2007 (2) BLR 515 (HC)

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Citation: 2007 (2) BLR 515 (HC)
Court: High Court, Francistown
Case No: Civ Case F837 of 2001
Judge: Phumaphi J
Judgment Date: May 16, 2007
Counsel:
P A Kgalemang for the plaintiff. T Elijah for the defendant.
Flynote
Delict - Assessment - Quantum of damages - Patrimonial damages - Proof of - Plaintiff confirming quantum in evidence  but failing to produce receipts - Whether quantum sufficiently proved.
Delict - Assessment - Quantum of damages - Sentimental damages - When justified.
Headnote
In an action for damages for malicious prosecution in which the plaintiff claimed damages for his patrimonial loss in the form of his legal expenses and sentimental damages for contumelia, deprivation of liberty, humiliation and discomfort, the defendants admitted liability and the trial proceeded solely on the issue of quantum. The defendants contended that the plaintiff had failed to prove his alleged legal expenses inasmuch as he had failed  to produce the relevant receipts.
Held: (1) As regards the plaintiff's patrimonial loss, even without his receipts, the plaintiff's viva voce evidence would be sufficient proof of the quantum of his legal expenses if the court found him to be a credible witness, as indeed it did.
(2) As regards the plaintiff's sentimental damages, the plaintiff was degraded, humiliated and insulted by the  prosecution and his career advancement was impaired. That constituted a serious invasion of his rights to liberty, good name and dignity. Mhlongo v Bailey and Another 1958 (1) SA 370 (W) at pp 371-373 and Thokwane v The Attorney-General [1998] B.L.R. 221 at p 233 applied.
Case Information
Cases referred to: Mhlongo v Bailey and Another 1958 (1) SA 370 (W)
Ramakulukusha v Commander, Venda National Force 1989 (1) SA 813 (V)
Setiko v Botswana Motor Vehicle Insurance Fund [2001] 2 B.L.R. 43
Thokwane v The Attorney-General [1998] B.L.R. 221

2007 (2) BLR p516
Action for damages for malicious prosecution. The facts are sufficiently stated in the judgment. P A Kgalemang for the plaintiff.
T Elijah for the defendant.
Judgment
PHUMAPHI J: On 5 October 2001 the plaintiff issued a summons in this court in which he claimed the sum of P178 956 from both defendants.
The particulars of the plaintiff's claim in part read as follows:
    '4.    On the 12th day of April 1999, at Selebi Phikwe the 1st and 2nd Defendants jointly and wrongfully and maliciously  set the law in motion by laying a false charge of obtaining credit by false pretence against the Plaintiff by falsely alleging through Annexure AB "A" a copy of the charge sheet that the Plaintiff has obtained credit by false pretence.
    5.    When laying the charge aforesaid and giving such disinformation, defendants had no reasonable or probable cause for so doing nor did they have any reasonable belief in the truth of the information since it was clear from the onset  that Plaintiff was not a party to nor was he ever involved in the transaction aforesaid.
    6.    As a result of the aforesaid conduct by the defendants Plaintiff was arrested, arraigned and prosecuted for the offence of obtaining credit by false pretence in the magistrate's court in Selebi Phikwe and duly acquitted on 31st  December 1999.
    7.    Before the acquittal, 1st Defendant, realizing that the prosecution was malicious and without probable cause, applied to withdraw the said prosecution without prejudice and did not offer any apology.
    8.    As a result of the arrest and prosecution of the Plaintiff by the defendants, Plaintiff suffered damages in the sum of  P28 956.00, being the costs reasonably expended by Plaintiff in defending himself against the aforesaid charges and the sum of P150 000.00 being damages for contumelia, deprivation of liberty, humiliation and discomfort suffered by Plaintiff.
    9.    Proper notice in terms of the state proceedings act has been given and a copy is hereto attached and marked AB  "B".
    10.    Wherefore Plaintiff claims:
        (a)    Payment of the sum of P178 956.00.
        (b)    Interest thereon at the rate of 10% a tempore morae.
        (c)    Costs of the suit.
        (d)    Further and or alternative relief.' On 14 February 2002 the defendants filed a plea, the net effect of which was to deny any liability to the plaintiff.
The matter came before this court on 19 March 2007 and, at the beginning of the trial, counsel on both sides informed the court that the defendants no longer contested the issue of liability to the plaintiff and costs. The

2007 (2) BLR p517
PHUMAPHI J
court entered judgment by consent on both issues leaving only the issue of quantum to the established evidence. The 56 year old plaintiff who is a superintendent in the Botswana Police Service told the court that in 1999 he was a superintendent stationed at Botshabelo police station in Selebi Phikwe. In April 1999 he was charged with the offence of 'obtaining credit by false pretences' but he was eventually acquitted when the prosecution failed to  appear in court to continue with the matter to the finish after the trial magistrate was directed by the High Court to do so. However, before the acquittal he had been interdicted from the Police Service on half salary. A sequel to the interdiction on half salary was that he failed to comply with an earlier court order to maintain his children from his first marriage and he also had to withdraw one of his children from an English medium school. He was prosecuted, convicted and sentenced to a prison term for failure to comply with the court order. Following his sentence to a prison term, the Commissioner of Police dismissed him from the Police Service.
The plaintiff's woes were not over yet. After dismissal from the Police Service, he was also evicted from the police institutional house he was occupying. If the eviction was bad, it was further aggravated by the fact that it  was conducted by armed members of the Botswana Defence Force in the full view of all neighbours and members of the public in general.
The plaintiff says he missed an opportunity to go on a course to Lesotho and Swaziland with his colleagues who on their return were promoted to the posts of senior superintendents and he has remained in one position even after reinstatement till to-date. The plaintiff further told the court that, prior to being charged for 'obtaining credit by false pretences' he used to coordinate crime prevention committees and he, his wife and son were members of a very successful crime prevention choir which used to come first at music competitions. In brief, he was a well known and well respected senior police officer, not only in Selebi Phikwe, but in the whole district that falls under Selebi Phikwe  Officer Commanding and the country at large.
He said he was extremely humiliated, hurt and mortified by the way he was treated by the police from the moment he was charged, right through to the time of his acquittal. He said he contemplated suicide on a number of occasions and he used to weep daily in utter frustration. He developed ulcers during this trying period. As a matter of fact, when the plaintiff was recounting his experiences, he was overwhelmed by emotion and wept  momentarily. He told the court that, were it not imperative that he should tell what happened in order to assist it to determine his claim, he would not repeat what happened to him, as it was too ghastly.
Counsel for the plaintiff contends that his client should be awarded the damages he claims because his  prosecution was motivated by malice on the part of the defendants. He further contends that, as a result of the actions of the defendants, not only did his client suffer sentimental damages, but he also suffered patrimonial loss in the form of legal costs he incurred defending the malicious prosecution, for which he should be compensated in full.
On the other hand, counsel for the defendants contends that, while it may be true that the plaintiff incurred legal expenses, he failed to itemise his

2007 (2) BLR p518
PHUMAPHI J
expenses and produce receipts in support thereof, and as such, he has failed to establish his patrimonial loss  and therefore his claim for legal expenses should be dismissed. It is contended, in the alternative that, should the court be inclined to find for the plaintiff under this head, it should order that the legal expenses incurred by the plaintiff should be taxed to arrive at a just figure.
It is also contended that the global figure of P150 000 claimed for contumelia, deprivation of liberty, humiliation  and discomfort should have been itemised and claimed under separate heads. In the same breath counsel argues that contumalia and humiliation should have been claimed as one. I do not quite appreciate this part of counsel's submission as the claim for sentimental damages is global.
Turning now to the issue of patrimonial loss in the form of legal fees, expended in the defence of the malicious  prosecution which was abandoned midstream, there is ample evidence that the plaintiff engaged counsel to represent him against a prosecution that the defendants have since admitted was malicious. The prosecution applied to withdraw the charge against the plaintiff during the course of the trial. The trial court granted leave to withdraw. The plaintiff applied to the High Court for an acquittal, but the High Court directed that the trial should  proceed to conclusion. The defendants failed to proceed with prosecution, with the result that the trial court was constrained to acquit the plaintiff when the prosecutor did not turn on the day set for the continuation of the trial.
There can be little doubt that the plaintiff incurred some legal expenses in all this rigmarole. The plaintiff has said  he has receipts which can prove that he expended P28 956 but he left them at his home in Thamaga. The issue of receipts arose during cross-examination which would indicate that the plaintiff had not intended to produce the receipts in evidence. As a matter of fact, receipts were never discovered as no discovery was ever made in the case.
Counsel for the defendants relies on the case of Setiko v Botswana Motor Vehicle Insurance Fund [2001] 2 B.L.R. 43 as authority for the proposition that, since the plaintiff did not produce receipts, he has failed to establish that  he paid legal fees amounting to some P28 956. The situation in the Setiko case was that the plaintiff failed to lead evidence to make out a prima facie case and there were a number of items claimed which he could not remember. He also admitted that some of the expenses he claimed were not incurred by him. In the circumstances, the Setiko case is distinguishable from this case. In the instant case, the amount for legal fees was claimed as P28 956 in the summons and in court the plaintiff in his evidence confirmed that to be the amount he paid. While it is true that, if the receipts were produced, they would have proved beyond doubt the exact amount the plaintiff paid, I am of the view that this court is entitled to accept that the legal fees paid by the plaintiff amount to P28 956 even in the absence of receipts, provided it  believes the plaintiff to be a credible witness, in the same way it would, if the plaintiff was claiming an amount based on an oral contract. The critical issue is whether or not the court believes the plaintiff, in my view.
It should also be remembered that the standard of proof in civil matters is not proof beyond reasonable doubt, but proof on a balance of probabilities. The defendants in their plea have not suggested that the amount of P28 956

2007 (2) BLR p519
PHUMAPHI J
was unreasonable. They merely said they had no knowledge of what was averred and put the plaintiff to provide  full proof thereof. They did not request further particulars as to how the amount of P28 956 was arrived at, either. The plaintiff has led ample evidence to show that he engaged the services of a lawyer who defended him in the magistrates' court, made application to the High Court, which referred the matter back to the magistrates' court which finally acquitted him. Have I reason to think that P28 956 was an unreasonable amount to be paid for  the legal services rendered? There is nothing before me to suggest that. In the circumstances, I am satisfied that the balance of the probabilities favours the plaintiff and therefore find in his favour under this head.
Turning now to the issue of sentimental damages, the evidence reveals that the plaintiff must have been gravely  humiliated and insulted. He was a well respected law enforcement officer, who suddenly appeared to those who knew him to be a wolf in a sheep's clothing. The eviction by armed members of the Botswana Defence Force must have given those who witnessed the drama the impression that he was a dangerous man who had, all along, pretended to those he interacted with that he was a law abiding citizen. He must have been grievously  emotionally traumatised as evidenced by his emotional breakdown in the cause of his evidence.
Although the plaintiff was not in custody, his liberty was severely curtailed as the bail conditions confined him to Selebi Phikwe.
The plaintiff's progression in the Police Service must have been adversely affected by his prosecution because his colleagues were able to go on a course subsequent to which they were elevated above him while he  remained marking time in one position.
In my view, all the circumstances of the case call for a punitive award to register the court's frowning upon the infringement of rights of an innocent individual whose development in career was brought to halt by the apparently insensitive and malicious attitude of those concerned. In Mhlongo v Bailey and Another 1958 (1) SA 370 (W), (see Visser and Potgieter Law of Damages through The Cases (2nd ed) at p 543) when considering the factors to take into account when awarding damages Kuper J said at pp 371-373:
    'It is necessary, however, before fixing the sum to be awarded, to determine the precise nature of the injury inflicted upon  the plaintiff ... and the question whether such publications constitute an aggression upon a person's dignitas will depend upon the circumstances of each case, the nature of the photograph, the personality of the plaintiff, his station in life, his previous habits, with reference to publicity and the like ... the remedy should be given only when the words or conduct  complained of involve an element of degradation, insult or contumelia... There was in the present case an invasion of the plaintiff's privacy which, because of the article to which the photographs formed a background, constituted an aggression upon his dignitas, and this invasion was deliberately designed without any regard to the feelings of the plaintiff.' (My emphasis)
Vide also: Ramakulukusha v Commander, Venda National Force 1989 (2)

2007 (2) BLR p520
PHUMAPHI J
SA 813 (V), (see Visser and Potgieter (op cit) at p 545) where Van der Spuy AJ said:     'I must also take into account here that plaintiff has the right to be compensated for personal insult, indignity, humiliation and the inevitable defamation which was and is suffered as a result of the prosecution in the course of which he was characterised as a "mavia vhatu" to the people of the Republic of Venda and beyond. As to the injurious aspects of an  action based on malicious prosecution ... I may just add that, although a "killer of human beings" which he may never be able to live down - and no award of money can truly compensate him for that.' (My emphasis)
And see also Thokwane v The Attorney General [1998] B.L.R. 221 at p 233A where Aboagye J said:     'I, however, take note of what Greenland J. said in his judgment in Masawi v. Chabata and Another 1991 (4) S.A. 764 at p. 774B, namely, "Liberty is a sacrosanct fundamental human right which must be meaningfully protected by the courts." I am equally persuaded by these words of Van Rensburg J in Thandani v. Minister of Law and Order 1991 (1) S.A. 702 at p.  707:
        "In considering quantum sight must not be lost of the fact that the liberty of the individual is one of the fundamental rights of a man in a free society which should be jealously guarded at all times and there is a duty on our Courts to preserve this right against infringement. Unlawful arrest and detention constitutes a serious inroad into the freedom  and the rights of an individual. In the words of Broome JP in May v Union Government 1954 (3) SA 120 (N) at p. 130e:
            'Our law has always regarded the deprivation of personal liberty as a serious injury'."'
I am in agreement with the approach adopted by the learned judges in the dicta quoted above. In the present  case, not only was the plaintiff degraded, humiliated, defamed and insulted by the prosecution, but his advancement in career was also impaired. This was a serious invasion of the plaintiff's right to his liberty, good name and dignity.
In this jurisdiction, the only award which I found that was made in similar circumstances was in the Thokwane  case (supra) where the claim was for P1 205 000 and the court awarded P150 000. The award was made some nine years ago which means that, if inflation is factored into the calculation, today's award would be much more. In the event the plaintiff has only claimed P150 000. Regard being had to all the circumstances of this case, I consider the amount claimed quite minimal and therefore award the plaintiff sentimental damages in the full sum claimed. It is therefore ordered as follows:
    (a)    The plaintiff succeeds in his claim against the defendants.
    (b)    The defendants are to pay the plaintiff the sum P178 956.
    (c)    The defendants are to pay 10 per cent interest reckoned from the date of this judgment.

2007 (2) BLR p521
PHUMAPHI J
    (d)    The defendants are to pay the plaintiff's costs on a party and party scale. Judgment for the plaintiff.

2007 (2) BLR p521

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