Lehlohonolo Masienyane & Ano. V Maluti Mountain Brewery & Ano. (C of A (CIV) No 27/2024) [2024] LSCA 24 (1 November 2024)

IN THE COURT OF APPEAL OF LESOTHO LESOTHO HELD IN MASERU C OF A (CIV) 27/2024 CIV/T/594/2013 In the matter between – LEHLOHONOLO MASIENYANE 1STAPPELLANT MAKABELO MASIENYANE 2ND APPELLANT and MALUTI MOUNTAIN BREWERY 1STRESPONDENT TEBOHO BOSA TSEPANE 2NDRESPONDENT CORAM: MOSITO, P DAMASEB, AJA J VAN DER WESTHUIZEN, AJA HEARD: 10 OCTOBER 2024 DELIVERED: 1 NOVEMBER 2024 SUMMARY A plaintiff claiming damages to property under the Actio Legis Aquiliae cannot claim for discomfort and stress. The damages must be proved on a balance of probabilities. Time delay may complicate the computing of damages. The High Court correctly awarded some of the damages claimed by relying on an offer by the defendant. JUDGMENT J VAN DER WESTHUIZEN: Introduction [1] This appeal against a judgment of the High Court, by Sakoane CJ, deals with the amount of damages awarded to the appellants, as a result of an accident involving the first respondent’s truck and the appellants’ house. Background [2] In March 2013 the first respondent’s truck crashed into the appellants’ house. Two rooms and furniture were destroyed. The respondents admitted liability and offered M250 000.00 for damages. The offer was rejected. The appellants claimed damages in the High Court. The summons was issued in 2013. It would seem that the matter was heard in the High Court on several days, from 7 September 2022 to 5 March 2024. The High Court judgment was delivered on 8 May 2024. High Court [3] Only quantum was thus at stake in the High Court. Initially the claim was for M421 983.00, plus interest and costs of suit. In the course of proceedings, the summons was amended. The claim was increased to the amount of M447 830.00, being the reinstatement value of the house. To this was added M52 908.00 for damages to household property; M200 000.00 for damages for deprivation of convenience, comfort and the use of their property; M750.00 per month as the equivalent of rent; M100 000.00 for emotional stress; plus interests and costs of suit. [4] The evidence led before the High Court is summarised in its judgment. Only an even briefer summary is given here. [5] The second appellant testified that two rooms of their five- roomed house had been damaged. The ceiling fell and cracks let in rain, wind and cold. She listed damaged movable property. In 2013 they sought quotations from furniture shops. To date neither the house had been repaired, nor the movables replaced. [6] She explained that the sum of M447.830 was claimed for the reinstatement of the house, based on a quotation by a building contractor. M100 000.00 was claimed for emotional distress caused by people saying:” This house is still not yet fixed.” She admitted that two months after the accident, the first respondent had made an offer of M210 000.00 for repairs to the house and M40 000.00 for the furniture and utensils. [7] The building contractor testified that in March 2013 he had quoted M360 000.00 for the rebuilding of the house, because all the walls had been damaged. Four six years nothing was done, until 2019/2020 when a second quotation was sought. In November 2021 a third quotation was made, this time for M576 438.86. The builder’s three quotations were all based on instructions to build a new house: not for repairs to the house. The builder witness did not dispute a calculation by experts that materials to repair the house would cost M116 121.43. [8] The evidence of a civil engineer with 30 years of experience was that the house could be repaired. The alternative option was to build a new house in the same yard. [9] For the appellants a quantity surveyor testified that the house was not habitable. It had to be destroyed and rebuilt. The costs to rebuild the house was estimated by her at M,795 338.94. The lapse of time contributed to the costs. She also mentioned the effect of a lack of maintenance. Her report was based on estimates, she said. [10] The respondents did not call witnesses. By agreement between the parties’ lawyers, two expert reports were submitted into the evidence. They indicated that the house was repairable and gave different estimates of the costs. High Court [11] In considering the evidence, the High Court pointed out that the appellants’ figures were computed for the building of a new house, as well as the repair and replacement of damaged furniture and other movable items. [12] The High Court found that from the start the appellants wanted a new house and were not interested in repairing the damaged house. The Court relied on the evidence of the civil engineer. It also mentioned that the costs of repairs were estimated by the respondents’ experts as in the region of M116 122.00 and M150 000.00. Both these amounts were lower than the respondents’ above-mentioned offer of M250 000.00. [13] As to the costs of replacing the house with a newly built one, the High Court relied on Commander of the Lesotho Defence Force and Another v Magaga (LAC (2011 – 2012) 263). The difference between the market value before the accident and the market value after the accident had to be calculated, in order to arrive at an amount. According to the High Court, there was no evidence before it on the value of the house before and after it was damaged. [14] With reference to Kellerman v South African Transport Services (1993 4 SA 872 (CPD) at 877H – 878B), the High Court stated that the remedy for negligent damage to property was the actio legis Aquiliae. With this action only patrimonial loss can be claimed, and not compensation for discomfort, annoyance, or vexation per se. According to the High Court compensation for emotional shock or suffering must be proved by psychiatric evidence of injury or illness. [15] The years that had passed from 2013 to when the action was heard by the High Court worsened the damages. For this, the respondents cannot be blamed, in the opinion of the High Court. The appellants also never moved out of the house and incurred rental and related expenses. [16] The High Court concluded that the appellants’ claim for damages could only relate to repairing the two rooms and movables. Counsel for the respondents confirmed that the offer of M250 000.00 was still open. Because of inflation, the Court increased the amount by M50 000.00, to M300 000.00. This is “(t)he best I can do”, Sakoane CJ added. Questions [17] The central questions are: Can the house be repaired, or must a new house be built? If a new house has to be built to replace the damaged one, how should the amount for the building be determined? How should the costs for repairing the house be calculated, given the time that has lapsed since 2013? Consideration [18] In a civil claim the plaintiff must prove its case on a balance of probabilities. This applies when property is destroyed or damaged. The bulk of evidence persuaded the High Court, as well as this Court, at least on a balance of probabilities, that the house at the core of this matter was repairable. A replacement house did not have to be built. [19] Even if a new house were to be considered, there is a problem with determining the amount. The High Court correctly pointed out that no immediately-before-and-after valuation had been made available to the Court. The Aquilian action for damages to property is not supposed to result in a profit for the victim of the delict. The aim is to place them in the position they were, before the commission of the delict. [20] The fact that several years had passed between the accident and the appellants’ claim being heard by the High Court worsens the dilemma. The respondents are not to be blamed for the delay. Compensation was offered in 2013 already. [21] Determining the exact amount needed for repairing the house and replacing the movable property is also not easy, after the wasted years. As pointed out in the High Court judgment, the first respondent offered a higher amount than the proven damages. [22] The conclusion of the High Court to order damages of M300 000.00 is based on an estimate, rather than an accurate calculation. Because it is not wholly satisfactory, it is tempting to consider whether it represents an error or misdirection on the part of the High Court. However, there does not seem to be a viable alternative available. An attempt to calculate damages based on the year-to-year inflation rate, property prizes and costs of living will be complex and time-consuming. Expert evidence may be needed. Parties will have to be given the opportunity to debate the mathematical basis and accuracy of the calculation. Higher costs may be incurred. As stated in the High Court judgment, the estimate seems to be “the best” the judge could do. Conclusion [23] From the photographs made available as part of the record, it seems that the appellants’ house is indeed modest. The photographs also create the impression that the damage was serious. A truck crashing into it must have been traumatic in various ways. [24] One has much sympathy with the ordinary people who own the house, live in it and saw it being damaged. It is human to see a possible opportunity to upgrade to a bigger and more modern house and lift one’s lifestyle, when an accident occurs, especially when the damage is caused by an apparently powerful and well- insured commercial entity. The appellants wasted valuable time though since 2013, when the offer of M250 000.00 could have meant something to them. Whether their conduct resulted from their stubbornness, or bad legal advice, is not known. [25] However, no material error or misdirection is to be detected in the High Court judgment. The appeal has to fail. Costs [26] During oral argument counsel for the respondents indicated his client’s willingness to waive costs in the appeal, as well as in the High Court. As far as the appeal is concerned, costs would normally follow the result; and counsel’s waiver is appreciated. However, the respondents do not seem to have any costs to waive in the High Court, because that Court did not award damages to them, but to the appellants. The High Court’s order states that “the plaintiffs’ claim for damages succeeds in respect of the damaged parts of the house and movables”, followed by “costs of suit”. It seems that the appellants actually “won” in the High Court but appealed because they had not won far enough! Order [27] The appeal is dismissed, with no order as to costs, ____________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL I agree: I agree: ________________________ KE MOSITO PRESIDENT OF THE COURT OF APPEAL __________________________ PT DAMASEB ACTING JUSTICE OF APPEAL FOR THE APPELLANTS: MS M LEPHATSA FOR THE RESPONDENTS: ADV PR CRONJE 9