CIV/A/184/79 IN THE HIGH COURT OF LESOTHOIn the Appeal of :RANCHOLU SEETA AppellantV 'MAKANETSI KANETSI RespondentJUDGMENT.Delivered by the Hon. Mr. Justice I. Isaacson the 18th day of May. 1981.This is an appeal against a judgment of the Judicial Commissioner. The appellant (who I shall first refer to as the defendant) was sued in the Maputsoe Local Court by respondent (who I shall first refer to as the plaintiff) for 16 head of cattle as compensation for the first and second impregnations of plaintiff's daughter Jennet by Seeta Seeta (the defendant's son). There was an alternative claim for money the total amount of which would have been beyond the Local Courts jurisdiction. The son Seeta Seete was joined as second defendant but it is stated that he was not found by the Court's Messenger. Plaintiff elected to proceed with the case against No.1 only. The case started in March, 1978. In his evidence plaintiff said that in mid-October 1971 his daughter disappeared. As he was looking for her she was brought to them by two persons who said they had been sent by defendant to bring the girl to plaintiff. They said defendant said that plaintiff's daughter had gone to defendant's home because she was impregnated by Seeta who was away. Plaintiff said his daughter had twins in/2.
-2-November, 1971 but one of the twins died in April, 1973. Plaintiff said he wrote to defendant to ask what he was doing. Defendant replied he did not know where his son was. The plaintiff said that in 1976 he saw Seeta talking to his daughter. In the evening the girl disappeared. He saw the girl pregnant again and he expelled her and told her to go to person responsible. He saw her come home again with a baby accompanied by some people sent by defendant. The people said defendant had told them that plaintiff should expect him in the evening or on the Sunday and that he had gone to fetch his son. Defendant did not turn up until plaintiff sued him at the chief's place. There were other statements made by plaintiff at the trial but they are in my opinion merely hearsay.In cross-examination plaintiff said he had not told defendant about the first impregnation because ho did not know his daughter was pregnant. He said the child had refused to tell him who impregnated her. He admitted also he had not told defendant about the second impregnation.He admitted that defendant had once brought his son Seeta to confront plaintiff with his daughter and that no conclusion was reached. The daughter Jennet gave evidence to the effect that she was in love with Seete in 1971. She described an intercourse with him in terms which in effect would amount to rape. She said he took her to a doctor who told her she was pregnant. Later Seeta left and when he did not write to her she went to his father and told him Seeta had impregnated her. His father said Seeta was away and sent her home. She bore twins later. She said Seeta arrived in 1976. She showed him the boy because the other one had died. She said Seeta lay on her again and said he was/3.
-3-making another child. A child was later born and she took it to Seeta's father and told him she had. brought Seeto's child. He took her to the chief and she was then taken home.In cross-examination she told the defendant that he knew Seeta had impregnated for the first child when "they were seven". A witness 'Mampote Nthako gave evidence for the plaintiff. She said Seeta left Jennet's messages with her in 1971. Seeta had to send her one Sunday to tell Jennet he wanted to meet her. She said afterwards Jennet came back crying showing her a white corset covered with blood. She made a report to her of en event which amounted to rape.Another witness Kaletsi Kaletsi said that in December (no year mentioned) Seeta came to her and asked her where Jennet was. He said she should call her for him. She did tell her and they went out of the yard. Another witness said that in August, 1977 a certain young man was standing somewhere who called her and asked her to call Jennet. She did so and Jennet came to her. Afterwards Jennet told her he was Seete. In cross-examination she said she did not know Seeta. Defendant gave evidence saying he did not know anything about the case. He said the girl came to him and he told her the person mentioned was out of the country. She came to him with a 11 month old child. In cross- examination plaintiff put to him questions which showed that plaintiff did not know who had impregnated the girl even after the second pregnancy.In answer to the Court he said that on the confrontation with the children there was no evidence implicating the boy. The Local Court gave judgment in favour of the plaintiff for/4.
-4-16 hear of cattle or in the alternative the sum of R1920.00. The President in his judgment said after setting out the evidence of Jennet, "there is supporting evidence that Seeta did have times end opportunities or chance of being alone together with plaintiff's daughter it is very much possible that he is responsible for this impregnation." The defendant appealed to the Central Court which dismissed the appeal, and then he appealed to the Judicial Commissioner who also dismissed the appeal. In his judgment he saidinter alia. "What could possibly have been a ground of appeal is corroboration. I don't think we could in practice require corroboration in such circumstances because the girl's story has not been denied before Court...."He deleted the monetary part of the judgment. Counsel for the appellant (as I shall now call him) argued that as the son of appellant was married at the time the case was brought, the appellant was not liable although the alleged delict was committed before the marriage. He referred to a case in this Court Relebitso v. Ralebitso CIV/T/17/74 (not reported) in which the learned Chief Justice Cotran in a case in which a father and son were sued for damage caused by the son to a tractor held that the father was not liable (although the son was) for the damaged caused. The damage was caused by a vehicle driven by the son and the declaration of the plaintiff alleged that the father was sued "in his capacity as owner of the vehicle driven on his behalf with his consent and permission." The learned Chief Justice pointed out that the claim was based on the Common Law and not on any rule of custom. The son was a major at the date of action but the judgment was not given on that ground but on the ground that the evidence had not shown that the son had acted on the father's behalf or on/5.
-5-his instructions. He referred to several authorities on the Common Law. The Chief Justice has not, in my view decided in the above case, that a father is not liable in customary law, for a delict committed by an unmarried child if such child is married at the time a claim is made for damages arising from such delict.There seems to be no authority for such a case as the present one where the son alleged to have impregnated the daughter of plaintiff while under the guardianship of defendant was married and freed from such guardianship at the date of action. In my view there are good reasons for releasing the father from liability in such a case as the basis of liability seems to have been the duties under customary law of unmarried children to render services to the head of the family and to hand over to the heed of the family all income and property earned or received by such children. See Poulter "Family Law and litigation in Basuto Society." At page 190 et seq. On the marriage of the child such duty ceases and therefore if the father has to pay damages for a delict done by the child before marriage he would not, it seems, have recourse against the married child. However, in the view I take of this case it is not necessary to decide this point. Counsel also contended that according to custom failure to report pregnancy timeously is fatal to a cause of action but the pregnancy was obviously reported in this case though the person alleged to be responsible was not disclosed. In any case it is not necessary to decide whether or not the failure to disclose the name of the person is an absolute bar to a cause of ection although in my view it is a factor to be taken into account in the consideration of the credibility of the complainant. Counsel contended that there was no corroboration of the evidence of the/6
—6—complainant. Counsel for the respondent (who I shall now refer to as such) contended that apart from corroboration the complainant's evidence must be accepted as it was not contradicted by any evidence from the appellant's son. In my opinion the evidence of the complainant is so highly improbable that it did not require any evidence from the appellant's son to rebut it. As I have stated she gave evidence as to the first intercourse alleged to have been by Seeta in words which meant he had raped her. She did not make any complaint of rape to her father. She evidently did not tell her father that Seeta had raped her and did not even tell him who had impregnated her until about seven years later (according to her father's evidence). Evidence of corroboration of the first impregnation cannot be said to have been given by P/W 2 whose evidence is entirely on what the complainant told her. Such a report is not corroboration. (c/p. De Beer v. R. 1933 N. 30). The trial Court should have given judgment of absolution from the instance on the first claim. In my view even if a complainant is believed there must be corroboration. (op. Bekker v Westernard 1942 w.L.D. 214.Her evidence as to the second impregnation in December 1976 is also of forceful intercourse yet she made no complaint to her father about Seeta until a child was born. This is according to the father's evidence.The evidence of P.W.3 is not sufficient corroboration of her story. Somebody told him he was Seeta. The evidence of P.W.4 as to Seefa is entirely on what the complainant told her. Having regard to the inherent improbability of the complainant's story I am of the opinion that the trial Court erred in accepting her story as being corroborated/7.
-7-by the witnesses on the second claim and therefore in my view it should have granted absolution from the instance on both claims. Although on my view that the claims should not have succeeded the question of the amount of cattle awarded as damages falls awry I think I should state my views as to the number of herd awarded as I am of opinion that such amount would have been excessive.The Judicial Commissioner had refused leave to appeal in this case but on the application of the appellant the learned Chief Justice Cotran granted leave to appeal and stated his reasons in a judgment in which the learned Chief Justice said, inter alia."It is not for this Court to usurp the function of the judge who will eventually determine the appeal; suffice it to say that I find at least one good reason why I think the case has some merit and good prospects of success, at any rate on the question of damages (16 heeds of cattle) that have been awarded to the respondent by the Courts below."The respondent's son Seeta was alleged to have impregnated the respondent's daughter Jennet on two occasions the first in 1971 after which twin children were born. Assuming this was true, the respondent (father of the girl) took no action on either of these impregnations until 1978, i.e. 7 years after first and two years after the second He brought one action simulteneously It is true that S. 6(1) and (2) of port 11 of the Laws of Lerotholi provide for payment of up to 6 heacs of cattle for a first impregnation and up to ten heads of cattle for a second impregnation by the same man, but this isprima facie a case in which the maximum should not have/8.
-8-been awarded ...." With respect, I am in entirely in agreement with the above statement. I think that if the appeal had failed on the merits I would have reduced the amount of damages to 3 head of cattle on the first claim and to 3 head of cattle on the second claim. I think that there should be very good reasons given in every case of this nature why more damages should be given for a second impregnation (which cannot include seduction) than for a first, (which might include seduction). Furthermore I think there should be very good reasons in every case before the maximum amount of cattle is awarded whether for the first or second impregnation.Counsel for the respondent contended that the award of cattle is to compensate the father for the likely reduction in the "bohali" he will receive on the girl's marriage. This is possible but there should be very good reasons given why there is a further and greater reduction by a second impregnation as against the first. There was no such evidence given in this case and as I have indicated I would have reduced the damages as above if the appeal on the merits had failed.The appeal is upheld. The judgment of the Local Court is altered to one of absolution from the instance in favour of defendant. The respondent is to pay the appellant the costs of this appeal and such costs as he has incurred in all the Lower Courts.ACTING JUDGE18th day of May, 1981.For Appellant -Mr. W.C.M. Maqutu For Respondent -In Person.