CIV/A/16/87
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
TAELO ABIA TIKOE LETLATSA Appellant
V LETLATSA TIKOE LETLATSA Respondent
JUDGMENT
Delivered by the Hon. Acting Mr. Justice M. Lehohla on the 29th day of February, 1988.
This matter originated from the Matsxeng Central Court in February 1986. That court resolved the matter in favour of plaintiff now appellant. Defendant now respondent appealed to the Judicial Commissioner's Court where he became successful in terms of a judgment delivered by that court on 9th March, 1987. The original plaintiff then appealed against the finding by the Judicial Commissioner.
In the grounds of appeal drawn on his behalf by Messrs G.G. Nthethe and Company appellant states that
The learned (Judicial) Commissioner erred in ignoring and or attaching, less or no weight to the evidence of 'Mamookho, appellant's mother,
The Judicial Commissioner erred in holding that appellant failed to discharge the onus on the balance of probabilities as to his birth.
The Judicial Commissioner misdirected himself in relying on the cited authorities for his decision, despite the fact that those were clearly distinguishable.
The dispute in this matter revolves around the question who between the parties is entitled to exercise
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administrative rights over the areas of Qoaling and Phomolong as chief.
It appears that before his death in 1984 Chief Seqobela Lotlatsa exercised those rights over the areas in question. Evidence shows that Chief Seqobela died without any male issue. He had a brother called Abia who died before Chief Seqobela. It as not disputed that if he did't die before Chief Seqobela, Abia would have oeen the rightful successor to the late Chief Seqobela
It is common cause that Abia was married to appellant's mother 'Mamookho. Two sons were born to 'Mamookho. The elder one is Taelo Abia Tikoe Letlatsa. The younger one is Tsabalira.
It is common cause that Chief Seqobela and his brother the late Abia belonged to the first house It is also common cause that there was no male issue in the second house whereupon there was and would be no one to succeed from that house when and if vacancy occurred in the first house. Such vacancy would be filled by the first male issue from the next house down.
The next house down is the third house. It is common cause that the respondent is from this house. It is common knowledge that he is appellant's uncle in accordance with accepted Sesotho customary ways of regarding members of families standing in the sort of relationships obtaining between the parties' houses.
It is however respondent's case that appellant is not a rightful successor in the first house of Seqobela and Abia even though born in it because he is illegitimate The reasons he gives for his contention are that although 'Mamookho was married to Abia she and he parted in 1936 and that appellant was born in 1942 (according to the mother) or 1941 (according to his witnesses) during the process and continuation of the said separation. He further contends that appellant could not have been fathered by Abia on account of this fact
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He buttresses his argument regarding the separation between Abia and 'Mamookho by indicating that the manifest source of the separation among other factors was that 'Mamookho, after an illicit love affair between a white priest and her gave birth to a coloured child in 1936 - a factor that was never condoned by Abia Indeed the unpleasant incident of the birth of the child who preceded appellant embittered Abia so much that according to defence witness number A Chief Lephahamela Monase Matsoso
"...........The late chief Tikoe took Chieftamess 'Mamookho and) her child because chief Abia wanted to kill the child, thereafter, chief Abia ran away to the Republic of South Africa "
Defence witness number one chief Sotho Matsoso said at page 11 of the record.
"I know that Abia and 'Mamookho parted from each other in 1936; this matter trekked off (sic) until she begot a baby girl fathered by a priest that was the cause of their separation until he left to join the force."
In answer to appellant, he testified as follows;
"I know pretty well that you are the son of 'Mamookho 'Mamookho is the first wife of Abia They did not legally divorce. Abia died but 'Mamookho was still his wife Letlatsa was nominated by Katsoso's sons to administer Ooaling and Phomolong. That nomination was never confirmed by the Principal chief."
In answer to a question put to him by the court this witness said at page 12
"I don't deny the fact that he is the son of chief Abia for I was not there when he was born." The meaning of this answer becomes somewhat puzzling xxx fathom in the light of the fact that hardly three questions earlier he had said that "Chief Abia died without giving birth (sic) to a male issue." In fairness to this witness the Sesotho text shows that he had said Abia died without a male child in case eye brows are raised as to how a man can "give birth" to a child
In response to the evidence of this witness Mr. Nthethe argued that if according to Setho the
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parents of appellant separated because his mother gave "birth to a baby girl fathered by a priest, then the submission made was that appellant is not a girl but a man. Hence he cannot possibly have been fathered by a priest. He further submitted that Setho's evidence cannot bo construed to mean that appellant was not fathered by "his father" 1 e Abia.
Taken along with Setho's answer that he cannot deny that appellant is the son of Chief Abia it appears Mr Nthethe's submission cannot lightly be disregarded.
Pinpointing weaknesses in the evidence adduced for respondent Mr. Nthethe submitted that it was never put to 'Mamookho that because Abia separated with her in 1936 he could not have fathered appellant. With regard to Mohapi Mokokoana's evidence it was submitted that has evidence introduced a new factor that appellant was fathered by one Maretlane. This important aspect of the matter was never put to appellant's mother or any of appellant's witnesses. Criticising Nthota Letlatsa's evidence Counsel for appellant observed that this witness says he knows only appellant's mother and not the appellant himself. This is the witness who said appellant was born in 1941 while the mother said appellant was born in 1942. It was urged that no weight can adhere to the version of this witness because in his own admission he did not know appellant. His evidence as to appellant's legitimacy cannot be of any substance, it was submitted. Likewise it was urged that the evidence of Manase and that of 'Mamosilo should be disregarded because it is of no assistance on the question of legitimacy of appellant. It was pointed out that 'Mamasilo's evidence shows that she is confused in that she said she stayed with Abia for 32 years and that Abia died at 33 However the Sesotho version of the record as pointed out by Mr. Maqutu shows that 'Mamasilo said she stayed with Abia for 32 years and that she nursed him herself till his death at the 33rd year of their stay together.
However reference to the Judicial Commissioner's
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judgment was criticised for importing a factor which, at was submitted, is borne out nowhere in the record; namely "..... since her (sic) mother returned to her people in 1936 she did not meet Abia as husband and wife so that plaintiff Taelo could have been fathered by Abia." It was accordingly urged that the learned Judicial Commissioner in his appellate jurisdiction should not have upset facts found by the trial court.
Laying much stress on the importance of the warning that appellate Courts should be wary and tardy before inclining to upset findings of trial Courts Mr. Nthethe referred to page 2 of respondents heads of arguments wherein are listed factors likely to justify interference on appeal.
These factors are contained in the famous case of Rex vs Dhlumayo and Another 1948(2) SA. 677 et seq. Of the sixteen factors reflected in that case respondent chose the following five for consideration in this appeal .-
(1) An appeal is a retrial and must never be made illusory despite the limitation that the appellate court cannot see witnesses
(11) The appellate court can draw inferences from facts found by the officer presiding at the trial.
(112) Where reasons for judgment are unsatisfactory on their face or the record reveals the reasons to be unsatisfactory - then there is a misdirection of fact.
(iv) There can be a factual misdirection where though the reasons as far as they go seem satisfactory but it is shown that the trial court overlooked other facts or probabilities
(v) Once there is factual misdirection then the appellate court is at large to disregard the findings of fact even though based on credibility and come to its own conclusion. The degree of its freedom to decide on issues of fact depends of course on the nature of the misdirection."
Reacting to these factors submitted on behalf of respondent Mr, Nthethe pointed out that the following ones are equally important and should be given consideration.-
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That the trial judge has advantages - which the appellate court cannot have - in seeing and hearing the witnesses and in being steeped in the atmosphere of the trial Not only has he the opportunity of observing their demeanour, but also their appearance and whole personality. This should never be overlooked.
The mere fact that the trial judge has not commented on the demeanour of the witnesses can hardly ever place the anpeal court in as good a position as he was,
........... if the appellate court is merely left in doubt as to the correctness of the conclusion, then it will uphold it.
An appellate court should not seek anxiously to discover reasons adverse to the conclusions of the trial judge. No judgment can ever be perfect and all-embracing, and it does not necessarily follow that, because something has not been mentioned, therefore it has not been considered
In order to succeed, the appellant has not to satisfy an appellate court that there has been "some miscarriage of justice or violation of some principle of law or procedure."
In going about this appeal I have tried to be alive to the purport of all these factors. Both counsel are worthy of my gratitude for drawing my attention to
them.
I was referred to page three of the record where Chief Letsie Theko the Principal Chief of Thaba Bosiu indicated that respondent was never nominated by the Matsoso family. It was submitted that the record bears no evidence that there was compliance with the Chieftainship Act 1963. It was argued that by contrast the record shows on page 4 that Chief Letsie said the sons of Matsoso brought Taelo Letlatsa to him. It was urged therefore that an inference can easily be drawn that Taelo was thus brought by Matsoso's sons to Chief Letsie because he (Taelo) had been nominated by the family. See section 11 of the 1968 Chieftainship Act.
Chief Letsie stated that upon the death of Chief Seqobela he ordered that a regent be appointed till the appointment of a successor. In response thereto he
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received a letter written by Nthota on behalf of the Matsoso family. This letter recommended that Chieftainesn 'Mamosilo was the family's choice. 'Mamosilo is Abia's
second wife. However respondent protested to chief Letsie saying that his uncles were overlooking him. The principal chief referred him to the whole family where he could lodge his complaint. After all this had beeddone he called all the Letlatsa's sons and the community at Ha Thamae where they registered their names. The Letlatsa sons had divided themselves into two groups. However the eldest stated to the Principal chief that they had nominated the appellant as successor to the chieftaincy of Qoaling and Phomolong. Significantly, according to the evidence of this witness "respondent's group did not mention nor comment anything in regard to plaintiff."
Mr Nthethe accordingly submitted that if as suggested by one of the defence witnesses chief Seqobela had nominated respondent in terms of section 11 above then this should have been borne out in the record. In any event the nomination he made should have been publicly announced in accordance with provisions of the 1968 Chieftainship Act.
Respondent's witnesses scorn to have mistaken the nomination that the lato Chief Seqobela made when he himself was suspended from exorcising rights and duties of his office for the nomination required by provisions of the said Act. It is a fact that during his suspension chief Seqobela's place was filled in by respondent.
In his reply Mr. Maqutu for respondent pointed out that a view was expressed that exhibits were not material in this appeal. He further highlighted problems which were occasioned by faulty translation of the record and submitted properly that the preparation of the record is the appellant's responsibility.
He indicated the various texts in the record which differ significantly from portions in the Sesotho version. Indeed the English version that appellant married because his father had died was brought into sharp
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relief when contrasted with the Sesotho version that "I. married myself off because my father had died."
Developing this argument Mr, Maqutu stated that it is common knowledge that according to Sesotho custom marriage to the first wife is a parental affair. See Section 34(1) of the Laws of Lerotholi. It was submitted that appellant's claim that he married himself off because his father had died could not pass muster because according to custom there must be someone who stands in the place of parents when a son takes his first wife.
Plaintiff's response to question 9 was also held in question in so far as it purported to say Chief Seqobela knew when appellant married. It was submitted that this is no subtle but major disparity. It was argued for respondent that the cross-examination to which appellant was subjected was intended to show that appellant was illegitimate and an outsider with no links with the Matsoso family. This view was regarded as important because even if appellant's father's brother was not willing to come to his aid or to participate other brothers would have. It was suggested that this accounts for the fact that Chief Seqobela did not get involved in the marriage of appellant nor did the other Matsoso brothers.
Relying on Family Law and Litigation in Basotho Society by Poulter, Mr. Maqutu referred to a passage which shows that in first marriage it is the parents who pay bohali. It is only in subsequent marriages that a husband marries himself off. See page 73 where the words appear i.e. "In traditional society where marriage was far more a matter for the parents, they would have had a good idea of when their children were capable of shouldering marital duties with sufficient responsibility."
I was referred to C. of A. (CRI) No. 1 of 1976 Mzwandile Kose vs Rex where Oghvid Thompson said
"The ambit of an appeal court's interference with
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the decision of the trial court upon a factual issue depending upon credibility is restricted within reasonably defined limits - faulty reasoning, failure to accord due weight to a particular feature and the like".
Should there bo the sort of failure in these proceedings as set out above, it should accordingly be ascribed to the trial court. But regard being had to the fact that Tsabalira comes after appellant and also to the fact that if Abia had no connection with appellant's conception and birth ho would be even less concerned with Tsabalira's, it is puzzling how chief Seqobela when approached to state how the Matsoso's three children were to rank for purposes of circumcision should say that they should rank as follows : first "the son of chief Setho, followed by Motita's son and the last one was Tsabalira, the son of 'Mamookho." It is significant that this evidence came from a defence witness Monase Letlatsa Matsoso at page 15 of the record.
It thus becomes difficult to reconcile this state of affairs with respondent's version as adduced by his various witnesses that appellant's mother separated with Abia in 1936 from which it was inferred without proper basis by the J.C. court that 'Mamookho never returned to Abia in consequence of which appellant could not have been fethered by him.
Mr. Maqutu has prepared very exhuastive heads of arguments which I found useful and intellectually enlightening but for my decision it would be impossible to ignore P.J.J. Olivier's Book The South African Law of Persons and Family Law where at 320 it is said
".......... an illegitimate child is one born of parents who were not legally married to each other at any such time,"
Such time here refers to time either of conception or birth of the child.
The learned author in dealing with the presumption of Legitimacy says at 320
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"Our law recognises the rebuttable presumption that every child born of a marriage, is the child of the husband; in other words that it is a legitimate child. Where, therefore, the woman is legally married at the time of the conception or the birth of the child, or at any intervening time, the presumption applies that the man to whom she was married, and not any other person, is the child's father......"
Appellant's mother gave evidence which showed that she was married to Abia and further evidence was adduced to show that until Abia's death the marriage between him and 'Mamookho subsisted. The appellant was born during the subsistence of such marriage. There was no gainsaying the fact that he was even born at Ha Tikoe i.e. at his grand-father's place where "we used to live together with Abia" see page 6 the answer to question 4 by respondent to 'Mamookho.
Reference to page 321 (by Olivier) above shows that "for the purposes of rebutting the presumption that a child to which a married woman has given birth is the offspring of her husband, she or her husband or both of them may give evidence that they had no sexual intercourse with each other during the period when the child was conceived".
The submission was well conceived that at common law a child does not bear the onus to prove his legitimacy. It was therefore a misdirection on the part of the court immediately below to have required appellant to discharge this onus in order to succeed. The onus was on the defendant who challeged plaintiff's legitimacy to prove plaintiff's illegitimacy.
The fact that neither Chief Seqobela nor anybody in the Matsoso family had anything to do with appellant's taking a wife for the first time seems to be neither here nor there because in the words of Poulter under the subheading Husband marrying for the first time at 134
"Despite this it may be said that generally when a man marries for the first time the obligation to pay his bohali rests upon the head of his family. This person would normally
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be his father, if alive, and after his death, his heir. The heir might either be the husband himself or his senior brother....."
The record reveals that appellant is the 3rd child but first male issue born during the subsistence of a lawful marriage between 'Mamookho and Abia Except bo show his anger at 'Mamookho giving birth to her second child with the priest, Chief Abia is not revealed as having done anything to disown appellant and his younger brother. It is doubtful whether chief Seqobela would have laid down the order in which the sons of Matsoso family were to rank including Tsabalira from 'Mamookho's family if he entertained the view that he too was not fathered by Abia, but it seems he thought otherwise - a factor that would have influenced the family to nominate Tsabalira instead of appellant if they maintained the latter was illegitimate.
Consequently the appeal is upheld with costs.
ACTING JUDGE.
29th February, 1988
For Appellant : Mr. Nthethe
For Respondent . Mr. Maqutu.
