1
CIV/APN/21/88
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
AARON LEBONA Appellant
and
MPHASANE TSEOLE Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 12th day of February, 1992.
The Respondent and the Appellant were respectively, Plaintiff and Defendant before the Maseru Local Court, where the former sued the latter for payment of six (6) herd of cattle, alternatively Ml,800, as compensation for seduction.
In their verbal pleadings Plaintiff alleged that Defendant's son had seduced his daughter, hence the institution of the proceedings for relief as aforementioned, whilst Defendant denied the allegations on the grounds that he had not been timeously advised of either the pregnancy of Plaintiff's daughter or the fact that she had given birth to a child.
2
The Local Court heard and decided the case in favour of the Plaintiff but reduced the amount of money claimed in the alternative prayer to M1,200, The Defendant was apparently unhappy with the decision against which he appealed to the Central Court of Matsieng. The Central Court dismissed the appeal with costs and the Defendant lodged a further appeal to the court of the Judicial Commissioners, which again dismissed the appeal with costs. However, the court of the Judicial Commissioners granted the Defendant a certificate to appeal to the High Court on a long list of grounds, the gist of which was that the court had misdirected itself in wrongfully dismissing the appeal as it did.
In as far as it is relevant, the evidence heard by the court of the first instant was briefly that in May 1983, Plaintiff's daughter and Defendant's son, both of whom were unmarried, fell in love. They consequently had sexual intercourse regularly until September 1983 when Defendant's son left Lesotho to further his studies abroad. It was not really disputed that shortly before Defendant's son left the country. Plaintiff's daughter informed him that she was no longer menstruating. He advised her to consult a medical doctor, who could verify whether or not she had in fact became pregnant. She never did.
However, on 15th May, 1984 i.e. about eight (8) months
3
after she had stopped menstruating. Plaintiff's daughter gave birth to a baby at Queen Elizabeth II hospital here in Maseru. As the baby was weak at birth. Plaintiff's daughter had to remain with it at the hospital for some time. She was, therefore, unable to inform Defendant's son timeously about the birth of the baby. It was, however, common cause that whilst Plaintiff's daughter and the baby were detained in hospital a friend by the name of Manana Lebusa did telephonically inform Defendant's son about the birth of the baby.
According to her. Plaintiff's daughter used to correspond with Defendant's son whilst the latter was abroad and she did advise him of the fact of her pregnancy although she never disclosed it to her parents. After she and the baby had been released from the hospital, the Defendant's son telephoned her inquiring about the alleged birth of the baby and she confirmed it. Defendant's son then assured her that he would soon be coming home, when they would be able to sort out matters.
On 26th June, 1984, Defendant's son returned home from abroad and went to see the baby and the Plaintiff's daughter at her place of residence. He, himself never disputed the paternity of the baby although he informed her that he had problems as his elder brother and father had said they did not
4 understand how the baby could have been fathered by him.
In his evidence Defendant's son told the trial could that when he first met Plaintiff's daughter in May 1983, the latter was arriving from her unnamed boyfriend in Botswana. It is, however, significant that this was never put to Plaintiff's daughter whilst she was testifying from the witness box. The trial court had no hesitation in rejecting it as false and rightly so in my opinion.
Defendant's son conceded that whilst abroad he and Plaintiff's daughter had been corresponding. He denied, however, that Plaintiff's daughter had informed him about her pregnancy nor had he telephonically inquired about the birth of the baby from her when Plaintiff's daughter confirmed it. He further conceded that after he bad returned home from abroad he called at the residence of Plaintiff's daughter. The sole purpose of the visit was to tell Plaintiff's daughter to hand over his belongings to a friend from whom he would collect them. He denied, therefore, the evidence of Plaintiff's daughter that he did not dispute paternity of the baby and that his only problem was his elder brother and father both of whom claimed not to understand how he could have fathered the baby.
According to him, Plaintiff was surprised to learn on
5
15th May, 1984, that her daughter had given birth to a baby at the hospital because he had not been aware of her pregnancy. He, however, inquired about the father of the baby from his daughter, who informed him that the Defendant's son was. On 6th June, 1984, Plaintiff contacted and advised Defendant that his son had seduced his daughter, who had already given birth to a baby girl. The reason for his delay in advising Defendant about the seduction and the birth of the baby was, according to Plaintiff, because immediately after he had learned that Defendant's son was the person who had fathered the baby to which his daughter had given birth he, as a working person, had to proceed to Mohale's Hoek on duties.
For his contention that his son had not seduced Plaintiff's daughter and was, therefore, not liable for the relief claimed by the Plaintiff, Defendant relied on the allegations that he and his son were not informed timeously about the pregnancy of Plaintiff's daughter and the birth of the baby.
In our custom, the parents of a girl ordinarily inform the parents of a boy that their daughter has been seduced by their son. This, the Plaintiff has, on the evidence, done. The question of delay has been explained by the evidence in that Plaintiff never knew of her daughter's pregnancy until the baby was born on 15th May, 1984. He was then to proceed
6
to Mohale' s Hoek on duty. It was only on his return from Mohale's Hoek that Plaintiff was able to contact and advise Defendant that his son had allegedly seduced his daughter. Assuming the correctness of Plaintiff's evidence in this regard, there is nothing unreasonable in the court finding, as it apparently did, that the delay was not fatal to his case.
The trial court considered the evidence and found that Plaintiff's daughter had been testifying to the truth in her testimony that she conceived, and gave birth to a baby as a result of the sexual intercourse she had admittedly had with Defendant's son. The Court of the Judicial Commissioners was not prepared to interfere with this finding and rightly so in my opinion for it is trite law that a trial court before whom all witnesses have appeared and testified, is a better judge of who of them is or is not telling the truth,
As it has already been pointed out earlier in this judgment, the trial court rejected as baseless and, therefore, untenable the suggestion that Plaintiff's daughter might, at the material time, have been indulging in sexual intercourse with some unknown man/men besides the defendant's son. Consequently, the court rejected the defendant's suggestion that the baby which Plaintiff's daughter gave birth to could not have been fathered by his son.
7
I entirely agree that the law is as enunciated in the following passage quoted by the learned Judicial Commissioner from. The South African Law of Evidence by Hoffmann:
" If a man admits having had intercourse with a woman at anytime, the onus is upon him to prove that he could not have been the father of her illegitimate child."
In my finding, the defendant had not satisfactorily discharged the onus that vested in him viz. that apart from his son, Plaintiff's daughter had been having intercourse with any other man who could have fathered her illegitimate child. In the circumstances, I am unable to find that in dismissing the appeal as it did, the court of the judicial commissioners had misdirected itself.
Consequently, I would dismiss this appeal with costs.
B.K. MOLAI
JUDGE 12th February, 1992
For Applicant : Mr. Pheko For Respondent: Mr. Matsau.