CIV/T/100/83

IN THE HIGH COURT OF LESOTHO
In the matter of :

'MANTHABISENG KEMANE
Plaintiff v

'MARESETSE SELLO
Defendant

JUDGMENT

Delivered by the Hon. Acting
Chief Justice, Mr.Justice M.P. Mofokeng on the 15th August 1983

The plaintiff deposed that the
deceased was her son, aged about 16 years. She did not state the
actual date of birth.' The deceased,
at the time of his death, was a
scholar. During the weekends, he washed cars at a garage (presumably
to enable himself to purchase
exercise books and other writing
material that he needed at school from time to time). He was,
therefore, not working in the usual
sense. During school holidays he
went to what was described as "home" to herd cattle. How
much he earned-for this exercise,
is not revealed. The plaintiff
claims an amount of M3,000.00 for the loss of life of the said
deceased. The foundation for such
a claim arises by reason of a
legal duty of support by the deceased to the plaintiff, and
this may only exist under two conditions : (i) that the parent is
indigent and cannot support itself and (ii)
that the child is able to
contribute or provide the required support. (Petersen v South
British Insurance Co. Ltd. 1964(2) SA 236 at 238). The onus
is on the plaintiff to establish there these two factors. In the
particular matter before me this has not, on a balance of
probabilities,
been established. Unless, therefore, this is

/done

-2-

done the claim must fail.

The plaintiff in her summons
claimed a sum of M1,842.77 being damages suffered by her as a result
of her minor son's death. (This
figure is further broken down in an
affidavit in support of her application for default Judgment.
However, the amount adds up to
a total of M1,832.00). However, of
that total she claims an amount of M1,400.00 as being in respect of
transportation of the corpse
from Maseru to Ketane (in the Maluti
mountains). She produced a receipt for that amount which bore no
revenue stamp. In any event
the amount stated is far too excessive.
The reasonable amount, even making an allowance that the terrain in
Ketane is not all that
good, the reasonable amount ought to be in the
region of M500.00. The Court is prepared to award her that amount.

The plaintiff further claims an
amount of M160.00 being the cost of the coffin. This is quite
reasonable considering the cost of
such an item in Maseru. It is
reasonable and ought, in the circumstances to be awarded.

An amount of M272.00 is claimed
in respect of food and mortuary fees. Although the figure is not
broken down sufficiently, it accords
with custom of the Basotho
coupled with modernity. The Court would allow the expense as being
necessary and reasonable. It is hereby
awarded.

In the result, therefore, the
award of the Court is as follows :-

1. 
   Claim of M3,000.00 for loss of
   support is
   hereby refused;

   
   

2. 
   An amount of M932.00 being in
   respect of
   expenses is allowed;

   
   

3. 
   Costs on the Subordinate
   Court's scale in
   which the matter could easily have
   been
   initiated is allowed.

   
   

ACTING CHIEF JUSTICE

15th August, 1983 Fur Plaintiff
: Mr. Khauoe

For
Defendant : In default