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
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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 :-
Claim of M3,000.00 for loss of support ishereby refused;
An amount of M932.00 being in respect ofexpenses is allowed;
Costs on the Subordinate Court's scale inwhich the matter could easily have beeninitiated is allowed.
ACTING CHIEF JUSTICE
15th August, 1983 Fur Plaintiff : Mr. Khauoe
For Defendant : In default