CIV/A/9/1997 IN THE HIGH COURT OF LESOTHO
In the matter between:
'Mamorahanye Mphutlane Applicant
Delivered on 14th day of February, 2002 by
the Honourable Mrs Acting Justice A. M. Hlajoane
The appeal was noted against the judgment of the
Magistrate in the Court a quo which judgment had directed the
Appellant to pay back
the money which had been given to her by the
Respondent as compensation for the alleged death of her relative.
Briefly the facts of this case are that; the Appellant
is a member of the Respondent 's burial society. That on the 19th
July, 1991 the Appellant made a report to the society claiming that
she had lost a relative by the name of 'Matloheli Mphutlane,
claiming financial and material assistance from the society. The
Respondent acting on the information supplied to it by the
paid out to the Appellant the sum of money and also supplied her with
the required goods.
After the compensation had been paid out, the Respondent
carried out private investigations which revealed that in fact
dependant was not dead as she had claimed. When
confronted by other members of the society, the Appellant undertook
to repay the
money equivalent to the value of the compensation and
other assistance given to her by the Respondent. This undertaking was
before the chief and was made in writing.
On approaching the Court a quo for relief, the
Appellant's story could not be believed moreso because even her
witness D.W. 2 did
not bail her out by supporting her story.
Appellant was trying to change stories on who 'Matloheli as her
dependant alleged dead
also claimed that she had signed the undertaking to
repay the money under duress in the form of a hymn.
The issues for determination by this Court are:
(i) Whether a case has been made out for this Court
to interfere with the trial Court's findings.
(ii) Also whether the undertaking to pay may
properly be said to have been made under duress.
It is a well established principle of our Law that a
Court on Appeal will not lightly interfere with the findings of a
which had the opportunity of seeing and observing the
demeanour of the witnesses. It will thus be very reluctant to upset
of the trial Court. Rex vs Dhlumayo and another 1948 (2)
The Appellant submits that she undertook to pay the
money under duress. As yet another principle of our law, is that, in
a threat could be considered as capable of vitiating an
agreement it must not just be an empty threat but must be 'contra
The basic elements
of this defence of duress are dealt with in Broodryk vs
Smuts No 1942 TPD 47, as the following:
Actual violence or reasonable fear
The fear must be caused by the threat of some
considerableevil to the party or his family
It must be a threat of an imminent or inevitable evil
The threat or intimidation must be 'contra bonos mores'
And the moral pressure used must have caused damage.
In Emit Nofal vs Wijma 1970 (4) S.A. 31 the case
involving provisional sentence in which the claims were founded on an
of debt. According to the defendant, Wijma, the
signature of the relevant document had been obtained by threats, i.e
threats of Criminal
Prosecution, arrest and imprisonment, if
defendant had not, by signing the document, acknowledged that he had
amounts concerned. The Court held that the
alleged threats had not been proved to have been made, also that the
could not be regarded as contra bonos moreso, the
indication therefore being that he had misappropriated the funds.
The trial Court was not convinced that the Appellant
acted under duress as there was no convincing evidence on that point.
also as properly advised and guided by decided cases as
shown above, find no just cause to depart from the trial Court's
As submitted by the Respondent, the Appellant made an
undertaking which is enforceable at law quite independently of the
otherwise of her claim that in fact 'Matloheli Mphutlane as
her dependent is indeed dead. See the case of Boloko vs Lehlaka
LLR 268 E.
I have come to the conclusion that this appeal lacks
merit and ought to be dismissed, the appeal is therefore dismissed
This appeal has been dragging since April 1997 when it
was first noted. The reason for this was explained as the difficulty
the typed record from the Magistrate's Court Maseru. It
was on the 2nd August 2001 when the Court ordered that a
photocopied record be furnished within two weeks from that date.
Fortunately it was legible.
But on the date of hearing, the Court was given a notice
of withdrawal as attorney of record by Appellant's counsel. The name
Appellant was thus called three times outside Court and also
by the loud speaker but she showed no appearance. The Court therefore
proceeded in her absence, considering the length of time it has taken
to dispose of this appeal. The Appellant showed no interest
matter after noting the appeal. The notice of set down for this
appeal has been filed by the Respondent.
A.M. HLAJQANE ACTING JUDGE
For Appellant: Mrs Kotelo For Respondent:
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law