CIV/A/184/79
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
RANCHOLU SEETA   Appellant
V
'MAKANETSI KANETSI       Respondent
JUDGMENT.
Delivered by the Hon. Mr. Justice I. Isaacs
on 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
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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
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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
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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 said
inter 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
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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
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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
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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 is
prima facie a case in which the maximum should not have
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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 JUDGE
18th day of May, 1981.
For Appellant -Mr. W.C.M. Maqutu
For Respondent -In Person.