CIV/A/6/79 IN THE HIGH COURT OF LESOTHO

In the Appeal of:

SEABATA MOSHESHA Appellant

v CASWELL MAJAKE Respondent

JUDGMENT

Delivered by the Honourable Mr Justice F.X. Rooney on the 10th day of March 1980

This case comes before this Court on appeal with leave from the Judicial Commissioner. The matter began in the Mafeteng Local Court in 1975. The plaintiff therein was the present respondent, Caswell Majake, He had married Malehlomela the daughter of the appellant who was the original defendant.

Malehlomela left the respondent on the 16th December 1963. Up to that time she had borne three children namely Khahliso, Lehlomela and Nkoateleng. She subsequently gave birth to Teboho and Lineo. She died in 1975. The respondent asked the local court to restore to him all five children which he said were now under the control of the appellant, their maternal grandfather. He complained that his father had sent Majoro and Matlohang to collect the children from the appellant, who had refused to release them. The respondent said that all the children lived with their grandfather who had promised to return them and failed to comply.

Lerata Majake supported the respondent's case confirming that one of the children was working at Welkom and the other four were with the appellant. The second witness Koloi Pitso stated that the appellant has said that the children were the responsibility of his son Ralibuseng, but, this was something which the witness challenged.

The appellant/....

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The appellant maintained that he was being wrongly accused in the matter. He said that the respondent should look to the house of the appellant's son if he wanted the children,, He did not deny that the children "belonged to their father and not his daughter. He said that Ralibuseng had a family of his own and was therefore emancipated. The appellant said that he was not respon- sible if the children were not returned to their father. This was the sole defence advanced by the present appellant at the original hearing.

The local court considered the defence and said "This point has not been proved, there is no proof that the children are with Ralibuseng not him". Ralibuseng was not called as a witness by his father and no doubt this was the reason why the local court reached its conclusion and decided in favour of the present respondent.

In his grounds of appeal to the Ramokoatsi Central Court, the appellant repeated his argument that Ralibuseng was responsible. He explained that as he had only two days notice of the trial in the lower court he had not had the time to call his witness, namely Ralibuseng.

At the hearing of the appeal the appellant said that he had not brought the children before the local court as they were not in his custody.

In answer, the respondent did not agree that the children were Ralibuseng's responsibility or that he should have brought his case against him and not the appellant's He maintained that the children apart from Khahliso who was already in employment were at the appellant's home and not that of his son.

In its judgement the central court said "the point of the appellant does not make sense because his daughter was married while he was still responsible to him and his son has no right to take his father's rights while he is still alive. It would be reasonable if the appellant was dead." It went on "that the appellant wants his son to come and testify for him in

this case/.....

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this case cannot be accepted because the appellant agrees that he is the father of the wife of the respondent." The appeal was dismissed.

I shall pause here to consider what the issue was before these courts and if they were right in holding against the appellant. He had never denied the claims of the respondent as the father of his children but only his own liability in the matter. The local court criticised him for not proving that the children were under the control of his son and the central court, in effect, held that the action of Ralibuseng in assuming responsibility for the children was irrelevent to the issue.

I take the view that the local court was wrong in placing the onus upon the appellant to prove that Ralibuseng had the children and that the central court was equally wrong in holding the appellant responsible for the actions of his emancipated son Ralibuseng.

In his notice of appeal to the Judicial Commissioner, the appellant re-stated his objections to the decisions of the customary courts. It was on the issues alone raised in the earlier hearings that the Judicial Commissioner was required to adjudicate. (See Tiea v. Ramokone CIV/APP/2/79 unreported).

Unfortunately, Mr Maqutu for the appellant was permitted to raise new matters before the Judicial Commissioner's Court. He produced a marriage certi- ficate dated the 14th August 1956 between the respondent and the appellant's daughter and proceded to question the right of the local and central courts to adjudicate upon questions relating to the custody of the children of a civil marriage. He further argued that as the two younger children were born after the couple had separated they were not the natural children of the respondent and he had no rights over them.

In reply, Mr Mda for the respondent conceded that on the authority of Zola v. Zola 1971-73 L.L.R. 286 the two youngest being the adulterine children of a civil marriage were not subject to any rights possessed

at customary/....

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at customary law by the respondent as the husband of their late mother. He also appeared to concede that the question of the custody of these children was a matter outside the jurisdiction of the customary courts and that the question ought to be decided by the High Court.

Despite these concession, the Judicial Commissioner took the view that section 8 of the Central and Local Courts Proclamation did not exclude jurisdiction over the children of a marriage between Basotho, where such marriage has been performed both under the civil law and Basotho law and custom. He went further to say that the local court was not deciding anything in connection with a marriage. The appellant was not claiming the children but protesting that he did not have them in his charge. He went on to say that it appeared to him that the children are still under the gaurdianship of the respondent.

On the main issue the Judicial Commissioner upheld the finding that the children were under the control of the appellant. In dismissing the appeal he confirmed the orders of the local and central courts.

It is not necessary for the purpose of deciding this appeal to deal with the arguments raised for the first time before the Judicial Commissioner and repeated in this Court. The noticeable tendancy, in conducting litigation before the customary courts and in this Court on appeal, to enlarge the issues is one that ought to be resisted. What began as a simple dispute between a man and his father-in-law about the children of his deceased wife has been expanded by the ingenuity of lawyers into a complicated matter far removed in character from its origins. This is a development which I shall do nothing to encourage. This dispute was never a question of law but always one of fact, namely:- were the children claimed by the respondent under the control of the appellant.

The onus/....

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The onus rested upon the present respondent to establish that the appellant had de facto control over his children and was wrongfully refusing to restore them to their father. The respondent did not go himself to the appellant's home to demand the return of the children. It was the respondent's father who sent messengers and these persons reported that the appellant had refused to release the children. All this was hearsay. In stating positively that his children were living at the the home of his father—in—law, the respondent was merely making an assertion; not proving his case.

Lerata Majake claimed to have visited "Moshesha's place". He was with one Majoro. Thore was some discussion about the children. He concluded that "he refused to let them leave." I find this type of evidence vague and unsatisfactory. The last witness Koloi Pitso had little to say except that the appellant told him that Caswell should talk to his son Ralibuseng.

It is difficult to see why the Mafeteng Local Court held in favour of the respondent on the basis of the evidence presented and in the face of the appellant's statement that Ralibuseng had the children. No resolution of the fact in dispute was possible without hearing the testimony Ralibuseng. The central court was not justified in holding that Ralibuseng's evidence would not have been relevant to the issue.

I conclude that the original trial was unsatisfactory and the decision reached was wrong. This appeal is allowed and the decisions of the Judicial Commissioner, the Ramokoatsi Central Court and the Mafeteng Local Court are all set aside. I direct that a verdict of absolution from the instance be recorded in the court of first instance

The respondent is to pay the appellant's costs in this Court and in the Court of the Judicial Commissioner.

F.X. ROONEY

JUDGE 10th March, 1980

For Appellant: Mr Maqutu For Respondent: Mr Ramodibedi

NMD