CIV/A/9/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

SHEPHE
KHOHLOOA Appellant

v

SETABELE
LEPOQO Respondent

JUDGMENT

Delivered
by the Hon Mr Justice J L Kheola on the 8th day of August, 1985

This case
started before Motjoka Local Court whore the present respondent
claimed six head of cattle from the present appellant
as compensation
for the impregnation of his daughter by the son of the appellant

Judgment
was given in favour of the respondent, and the appellant appealed to
Motjoka Central Court and the appeal was allowed.
The respondent
appealed to the Judicial Commissioner's Court and his appeal was
upheld. It is against this judgment that the appellant
has appealed
to this Court

The
respondent told the court of first instance that in July, 1980 he
noticed that his daughter, Keletso, was pregnant When asked
who was
responsible for her pregnancy Keletso said that the son of the
appellant, Khethang, was responsible The responded reported
this
matter to the appellant, but his son denied that he had impregnated
the girl. It will be noted from the evidence that at that
time
Khethang was 13 years old and Keletso was 14 years old

Keletso
deposed that she first knew Khethang in 1973 at the L.L.C school
where they were practising a competition song, Khethang

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proposed
love to her and they fell in love One night in February, 1980 they
were returning from a cinema show and were passing near
the home of
'Manki when Khethang asked her to sit down and lie on her back. She
complied. He then ordered her to pull down her
drawers, she complied
The boy got on top of her and had sexual intercourse with her This
was the single occasion on which she had
sexual intercourse with
Khethang and which led to her becoming pregnant

Khethang
testified and admitted that Keletso was her lover until November or
December, 1979 when she returned his photographs and
told him that
she no longer loved him. He accepted the photo graphs and reported to
his friend one Monaheng Mphahama that Keletso
had'jilted' him.
Monaheng gave evidence that the report had been made to him Khethang
categorically denied that in February, 1980
or at any other time he
ever had sexual intercourse with Keletso.

It is
clear that in the present case the only evidence we have before us is
the word of the complainant against that of the boy.
There is no
person who saw them together at the cinema show or near the home of
'Manki where the alleged intercourse took place.
The judgment of the
trial court is a very poor and useless one because it does not say
anything about the demeanour of the witnesses
Nor does it give any
analysis of the evidence of the complainant and scrutinize it in such
a way that the appellate court will
be sure that the judicial officer
approached such evidence with special caution required in cases of
this class For purposes of
easy reference I shall reproduce the
entire judgment It reads

"I do not believe that in sexual intercourse one would
appreciate the presence of a third party or that third party would
be
a spectator There is pregnancy which arose from the love of the two
and further more, the boy says he did not know of any other
lover who
interferred in their love affair.

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That being lovers should culminate in pregnancies has become common
and taking this lightly without taking proper reprimand action
will
fill the country with children without parents to maintain them and
care for them. If it could be proved that the girl had
misbehaved in
regard to several men then she would be said to have 'hit the
mountain' (not worth compen­sation for impregnation)
because she
had been caught with different people"

Mr
Maqutu, for the appellant, has criticised the judgment of the trial
court on the ground that the Court President disregarded
the
cautionary rule which is applicable in cases of seduction. I agree.
In Mayer v Williams 1981 (3) S A 348 at p.352 Trengove,
J A
emphasised the need for special caution in dealing with the evidence
of complainants in seduction cases in the following words

"There can, nevertheless, be no doubt whatever that, in a case
of this nature, there is always a need for special caution
in
scrutinising and weighing the evidence of the complainant (see R v J
1 966 (1) S A 80 (SRA) at 90) Experience has shown that
it is
essential for the purpose of doing justice between the parties in
this class of case - where allegations of paternity are
so easily
made and with such difficulty rebutted and where there is often a
strong temptation either to conceal the identity of
the real father
or to impose liability upon the person who is best able to bear it -
that the evidence of the complainant should
be approached with
caution As a rule of practice the trial court should, therefore,
always warn itself of the inherent danger of
acting upon the
testimony of the complainant in a paternity case"

This case
was quoted with approval by our Court of Appeal in the case of Limpho
Lesoli v Nthabiseng Mpheulane, C. of A. (CIV) No
9 of 1982. In the
present case there is nothing in the record to show that the Court
President approached the evidence with any
caution at all He merely
states well known facts and then suddenly comes to the

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conclusion
that the son of the appellant must be the culprit Some of those facts
are that sexual intercourse usually takes place
in private "That
being lovers should culminate in pregnancies has become common and
that taking this lightly without taking
proper reprimand action will
fill the country with children without parents to maintain and care
for them" All these facts
do not prove that the son of the
appellant is the father of the complainant's child The other wrong
finding of the trial court
was that because the son of the appellant
did not know any other lover of the complainant, he must be held
responsible for the
pregnancy. There could have been other private
older men who seduced the complainant and even suggested to her to
implicate a younger
man who was known to be in love with her because
it would be a disgrace to find that a young girl of 14 years has been
impregnated
by a married man

Mr
Moorosi, for the respondent, contended that the Local and Central
Courts judicial officers are not well trained in law, therefore,
we
cannot expect them to state expressly in their judgments that they
have cautioned themselves of the inherent dangers on relying
on the
evidence of a single witness in cases involving seduction or
paternity He submitted that the trial court saw the witnesses
and was
satisfied by the evidence of the complainant I agree that the Court
President cannot be expected to use the word 'caution'
but he is
expected to analyse the evidence in such a way that the appellate
courts will be in no doubt that he cautioned himself
I have stated
above that the trial court has not said anything about the evidence
that was led before it and the credibility of
the witnesses Looking
at the record as it stands I see no reason why the evidence of the
boy should not be believed. It does not
appear to be inferior to that
of the complainant. In Limpho Lesoli v. Nthabiseng Mpheulane (supra)
the man was shown to be a liar
and that was one of the reasons why
damages were awarded to the girl despite the fact that she was a
single witness

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In his
judgment the learned Judicial Commissioner correctly stated the law
in Limpho Lesoli's case that the courts should no longer,
as a matter
of law, insist upon corroboration of the evidence of complainants in
paternity or seduction cases. However, he did
not realise that the
trial court failed to scrutinize the evidence of the complainant with
care and that it failed to caution itself
against the inherent danger
of acting upon the testimony of the complainant in a paternity case

The
appeal was allowed with costs.

J.L.
KHEOLA

JUDGE.

26th
August,1985

For
Appellant Mr. Maqutu

For
Respondent Mr Moorosi