HIGH COURT OF LESOTHO
Burial Society Respondent
on 14th day of February, 2002 by the Honourable Mrs Acting Justice A.
appeal was noted against the judgment of the Magistrate in the Court
a quo which judgment had directed the Appellant to pay back the money
which had been given to her by the Respondent as compensation for the
alleged death of her relative.
the facts of this case are that; the Appellant is a member of the
Respondent 's burial society. That on the 19th July, 1991 the
Appellant made a report to the society claiming that she had lost a
relative by the name of 'Matloheli Mphutlane, thereby claiming
financial and material assistance from the society. The Respondent
acting on the information supplied to it by the Appellant paid out to
the Appellant the sum of money and also supplied her with the
compensation had been paid out, the Respondent carried out private
investigations which revealed that in fact Appellant's dependant was
not dead as she had claimed. When confronted by other members of the
society, the Appellant undertook to repay the money equivalent to the
value of the compensation and other assistance given to her by the
Respondent. This undertaking was made before the chief and was made
approaching the Court a quo for relief, the Appellant's story could
not be believed moreso because even her witness D.W. 2 did not bail
her out by supporting her story. Appellant was trying to change
stories on who 'Matloheli as her dependant alleged dead was.
Appellant also claimed that she had signed the undertaking to repay
the money under duress in the form of a hymn.
issues for determination by this Court are:
(i) Whether a case has been made out for this Court to interfere with
the trial Court's findings.
(ii) Also whether the undertaking to pay may properly be said to have
been made under duress.
It is a
well established principle of our Law that a Court on Appeal will not
lightly interfere with the findings of a trial Court which had the
opportunity of seeing and observing the demeanour of the witnesses.
It will thus be very reluctant to upset the findings of the trial
Court. Rex vs Dhlumayo and another 1948 (2) S.A. 677
Appellant submits that she undertook to pay the money under duress.
As yet another principle of our law, is that, in order that a threat
could be considered as capable of vitiating an agreement it must not
just be an empty threat but must be 'contra bonos mores'. The basic
elements of this defence of duress are dealt with in Broodryk vs
Smuts No 1942 TPD 47, as the following:
violence or reasonable fear
fear must be caused by the threat of some considerable evil to the
party or his family
must be a threat of an imminent or inevitable evil
threat or intimidation must be 'contra bonos mores'
the moral pressure used must have caused damage.
Nofal vs Wijma 1970 (4) S.A. 31 the case involving provisional
sentence in which the claims were founded on an acknowledgement of
debt. According to the defendant, Wijma, the signature of the
relevant document had been obtained by threats, i.e threats of
Criminal Prosecution, arrest and imprisonment, if defendant had not,
by signing the document, acknowledged that he had misappropriated the
amounts concerned. The Court held that the alleged threats had not
been proved to have been made, also that the alleged
be regarded as contra bonos moreso, the indication therefore being
that he had misappropriated the funds.
Court was not convinced that the Appellant acted under duress as
there was no convincing evidence on that point. This Court also as
properly advised and guided by decided cases as shown above, find no
just cause to depart from the trial Court's decision. As submitted by
the Respondent, the Appellant made an undertaking which is
enforceable at law quite independently of the truth or otherwise of
her claim that in fact 'Matloheli Mphutlane as her dependent is
indeed dead. See the case of Boloko vs Lehlaka 1974-75 LLR 268 E.
come to the conclusion that this appeal lacks merit and ought to be
dismissed, the appeal is therefore dismissed with costs.
appeal has been dragging since April 1997 when it was first noted.
The reason for this was explained as the difficulty in securing the
typed record from the Magistrate's Court Maseru. It was on the 2nd
August 2001 when the Court ordered that a photocopied record be
furnished within two weeks from that date. Fortunately it was
the date of hearing, the Court was given a notice of withdrawal as
attorney of record by Appellant's counsel. The name of the Appellant
was thus called three times outside Court and also by the loud
speaker but she showed no appearance. The Court therefore proceeded
in her absence, considering the length of time it has taken to
dispose of this appeal. The Appellant showed no interest in the
matter after noting the appeal. The notice of set down for this
appeal has been filed by the Respondent.
Appellant: Mrs Kotelo
Respondent: Mr Mohau
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law