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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.

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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

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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

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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

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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

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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.

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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.