C. of A.
CIV) No 3 of 1983

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

ROBERT
POTLANA NTLE Appellant

KHUBELUM
KAKETLA Respondent

HELD AT
MASERU

CORAM:

MAISELS,
P.

SCHUTZ,
J.A.

GOLDIN,
J.A.

JUDGMENT

GOLDIN,
J.A.

This is
an appeal against an order for maintenance in respect of an
illegitimate child.

The facts
as found by the magistrate, sitting at Qacha's Nek, are not in
dispute. The appellant seduced the respondent and as a
result she
gave birth to a child namely Lebohane Khaketla. He paid six head of
cattle as compensation Tor seduction and the parties
never married
each other. He was ordered to pay maintenance in the sum of R15 per
month . Appellant's contention that payment of
compensation relieved
him of responsibility

2

to
maintain the child because "the child born of such a union
remains part and parcel of the girl's family" was rejected
by
the magistrate and on appeal to the High Court.

The
learned Chief Justice summarised his decision as follows :

"The position seems to be that by ancient pure customary law the
matter ended with payment of compensation. The concept of
maintenance
for an illegitimate child was then unknown. The parents of the girl
were admittedly under a duty to maintain the child
and they often did
so, but the cattle were entirely theirs to do with as they please,
and indeed were often disposed of in payment
of bohali for their own
son or sons upon marrying. The Basotho did not see in the advent of
the Roman-Dutch law concept of maintenance
followed by statutory
enactments to this effect (some with criminal sanctions attached) as
con­flicting with their own previous
concept. The relevant
legislation can be found in Title VIII Vol II, Laws of Lesotho, p1061
to p1084, which culminated in further
amendments to the Deserted
Wives and Children Proclamation 60 of 1959 in Act 29 of 1971 and Act
1 of 1977": The admi­nistration
that enacted the old laws
and the Lesotho legislature in 1971 and 1977 (after Independence) are
presumed to have been perfectly
aware of the customary Laws on the
subject and it was manifestly intended that payment of maintenance
should be an additional remedy
available to the mothers of legitimate
or illegi-t imate children.

In an
earlier case, Motlatsi v Rex, (CA1A./8/81) Rooney J, dealing with a
similar situation, said inter alia:

"Under Sesotho law the child fathered by the appellant belongs
to the

3

Matlosa family. They are responsible for her future maintenance.
Under the same law the damages awarded to the Matlosa family operates

as a discharge of all further obligations to maintain the child on
the part of the appellant or any member of his family. Under
the
common law, the situation is quite different. The liability to
maintain the child falls in the first instance upon its natural

parents. The two legal systems are in conflict in that they provide
for different rights and obligations. This raises the question
as to
which system of law should be applied to the appellant and the
further question as to whether the appli­cation of one
system
necessarily excludes the other."

There can
be no doubt that the obligation to pay maintenance under Sec.3(1) of
the Proclamation, as amended by the Deserted Wives
and Children
(Amendment) Order 1971 extends to illegi­timate children. In
Leboko v R, CRI/A/22/74 (unreported Cotran J. (as
he then was) so
held following R v Davis, 1909 EDC 149 and Adams v Abrahams, 1918 CPD
24. The obligation extends to the mother
of the child (S v Pitsi),
1964(4) SA 558).

It
appears, and it was not in dispute, that under Lesotho customary law
the compensation is payable for seduction in the same amount

regardless of and unaffected by whether or not the woman gives birth
to a child as a result of the intercourse between the parties.
As the
Chief Justice said, "the object of such compensation is to make
amends to the parents who may, upon the daughter's
subsequent
marriage to another man, lose out on the qunntum of the usual bohali
paid by the suitor (or his parents) on the grounds
that she has been
deflowered and they are not entitled to the full bohali"

4

Under
customary law the natural father is not liable for maintenance of a
child if he does not become its guardian or is not allowed
by the
girl's father to keep it. If the guardian of the woman takes the
child as he is entitled to and usually does, no action
lies against
the seducer for maintenance or any other expenses concerning the
illegiti­mate child. The use of terms "custody"
and
"guardianship" are really inappropriate as they do not have
the common law meaning under customary law. The child
"belongs"
to the father or guardian of the seduced woman. The seducer acquires
no rights and incurs no obligation towards
the child. Mr Moorosi,who
appeared for the respondent accepted that "the concept of
maintenance for an illegitimate child
by its natural father was
unknown in Lesotho society". (See Vernon & Parmer's, "The
Roman Dutch and Sesotho Law of
Delict at 153, and Poulter on Legal
Dualism in Lesotho Law at 80.) I find it unnecessary to decide
whether at this stage of development
this concession was correctly
made.

The
legislation relied upon does not determine the question of liability
for maintenance and is only concerned with enforcement
of payment by
a person liable to maintain a child. Thus section 3(1) of the
Deserted Wives and Child­rens (Amendment) Order
1971 applies to
"any person legally liable to maintain any other person..."
Similarly section 6(b) of the Deserted Wives
and Children Act (No 60
of 1959) also deals with "the person legally liable to maintain
the child". The Act does not
create any new liability. Liability
must be sought in the general law as it exists

outside

5

outside
the Act. The legislation simply provides essen­tial and speedy
machinery by which effect may be given to existing liability.

Disputes such as paternity, validity of marriage or adoption of a
child can arise in determining the existence of liability. In
short
the Act says that a person "legally liable" can be
compelled to pay maintenance but does not define or deal with
who is
or is not "legally liable". (See In re Robert, 1953(3) SA
97 where a similar situation concerning liability for
maintenance and
the effect of similar legislation in Zimbabwe (then Rhodesia) was
decided.

The
effect of similar legislation was also considered in Adams v
Abrahams, supra, at p26. The court pointed out that "liability"

may involve a considerable enquiry as to paternity whether the child
is alleged to be legitimate or illegitimate. Under Roman-Dutch
common
law it is clear that a father is bound to support his illegitimate
child. Cf. R v Davis, supra; Adams v Abrahams, supra;
van der
Westhuizen v R, 1924 TPD 370; R v Rantsoane, 1952(3) SA 281 (T).

As
Professor Poulter says (Legal Dualism, supra, at p80):

"At common law a father's duty of support extends to his leg it
imate and illegitimate children, whereas under customary law
this
liability rests solely upon the mother' s family , although they are
entitled to recover compensation from the father's family
for
seduction."

6

Two
distinct systems of law are applicable in Lesotho namely Roman-Dutch
and customary law. There are general provisions concerning

recognition and application of Lesotho Law and custom but there are
also specific subjects such as marriage and succession in which

cus­tomary law is rendered applicable in defined circumstances.
(See Sections 4 and 42 of the Marriages Act 1974, Section 3
of the
Administration of Estates Act No 19 of 1935 and Makata v Makata C of
A (CIV) No 8 of 1982.)

The
general provisions are relevant to this case and they are as follows
:

Section 2
of the General Law Proclamation (2B of 1884) as amended by
Proclamation 12 of 1960, provides :

"2. In all suits, actions or proceedings, civil or criminal, the
law to be administered shall, as nearly as the circumstances
of the
country will permit, be the same as the law for the time being in
force in the Colony of the Cape of Good Hope: Provided,
however, that
in any suits, actions or proceedings in any Court, to which all the
parties are Africans, and in all suits, actions
or proceedings
whatsoever before any Basuto Court, African law may be administered."

Section 9
of the Central and Local Courts Proclamation, Chapter 6; Laws of
Basutoland 1949, as amended (Govern­ment Gazette
No 5468 of 23
April 1965) provides :

"9. Subject to the provisions of this Proclamation a central or
local court shall, administer

7

1. the
   native (now African) custom prevail­ing in the territory so far
   as it is not repugnant to justice or morality or inconsistent
   with
   the provisions of any law in force in the territory

   
   

2. ...

   
   

3. ...

   
   

4. ..."

   
   

It will
be observed that while in any court customary law may be
administered, central and local courts shall administer such law.
One
is permissive while the latter is peremptory. This action was
commenced in a magis­trate's court which is governed by the

permissive provi­sions in the General Law Proclamation.
Schreiner, J A, has rightly said that "no doubt the discretion

to decide which system of law to apply in a case carries with it
great responsibility - greater than that generally borne by courts
of
law". (Ex parte Minister of Native Affairs: In re Yakov Beyi
1948 (1) SA 388 at 398.)

Cases
decided in South Africa on this aspect are dis­tinguishable
because there the "Native Commissioner" has a discretion

whether or not to apply customary law in his court. Cf. R v
Rantsoane, supra, p285. In the case R v Mofokeng, 1954(1) SA 487 the

court in considering liability for maintenance for an illegitimate
child held that a plaintiff being dominus litis can select the
court
in which to bring such an action. If the plaintiff chooses a
magistrate's court then customary law cannot, apply , whereas
if he
chooses a "native

8

commissioner's"
court, that court has power in its dis­cretion to administer
customary law. The difficulty in deciding
which system of law to
apply can, therefore, only arise in a "native commissioner's"
court. In Ex parte Minister of Native
Affairs : In re Yako v Beyi
(supra at 397) Schreiner J A considered how and when a native
commissioner's court should exercise
its dis­cretion. He said :

"... the better view is that the Native Commissioner should
exercise his discretion without regarding either of the systems
of
law as prima facie applicable. In each case he has at some stage to
determine which system of law it would be fairest to apply
in
deciding the case between the parties. I think that he should only
finally decide which system of law he is going to apply after

considering all the evidence and argument as part of his eventual
decision..."

The
magistrate in the case before us was entitled to apply customary law.
The unusual situation in South Africa where a litigant
can choose a
court which does not apply customary law and thereby obtain
maintenance as provided by common law, does not arise
here. It is
relevant to refer to the decision of Tredgold, C J, in the case of Ex
parte Robert (supra) in considering this aspect
in a similar dispute.
He said (at 97) :

"By native law a child born of an irregular union ... is
regarded as belonging to its mother's family and that family must

main­tain it. The mother's family may have a claim for seduction
but after that his liability ceases..."

9

He went
on to say (at 97) :

"... Should the present issue be decided by native law and
custom or under the common law? It is argued that the provisions
of
section 3 of the Native Law and Court's Act apply only in a case
between natives in a native court and as the present pro­ceedings

were in a juvenile court and as the State is involved, the common law
must be applied.

The implications of this argument are very far reaching and are such
as could scarcely have been contemplated by the legislature.
It would
be a novel and intolerable situation in which the substantive law
governing the relationship between the same parties
varied in
accordance with the court in which it fell to be decided."

The
question remains, which system of law is applicable in this case? It
is not desirable, or indeed possible, to formulate precise
rules and
each case has to be decided in the light of its own facts and the
subject matter in dispute. I am of the view that the
following
general approach is justified and applicable in this case .

Firstly,
any Lesotho customary law which is repugnant to justice or morality
or inconsistent with the provi­sion of any law
in force in
Lesotho, will not be administered by any court. Whether it is
peremptory or permissive to administer such law and custom
it can
only be done subject to the repugnancy provision which is expressly
applied in the Central and Local Courts

10

Proclamation.
It is clear that it could never have been intended that in applying
customary law in other courts by virtue of the
provision of the
General Law Proclamation it can be done regardless of its repugnancy
to morality or justice.

The
repugnancy provision to which I have referred, diffe­rently
worded, but to the same effect, is to be found in nearly every

country in Africa which was occupied or con­trolled by Great
Britain. (See A N Allot, Judicial and Legal Systems in Africa
(1902)
and Kuper & Kuper, African Law, Chapter 10 by Professor L Rubin
at 201.)

Secondly,
a Lesotho customary law will not be condemned or not applied on the
ground that it is repugnant to justice and morality
merely because it
is different from or does not accord with concepts of morality or
justice under Roman-Dutch law. It is implicit
and obvious that where
two systems of law exist, each of them may be based on different
principles or concepts of morality or justice.

In my
view a proper, even if not comprehensive test, is to be found in the
decision on similar legislation in South Rhodesia (Zimbabwe,
as it is
now).

In the
case of Tabitha Chiduku v Chidano, 1922 SR 55, Tredgold, J, said :

"Whatever these words ("repugnant to natural. justice and
morality) may mean, I consider that

11

that they should only apply to such customs as inherently impress us
with some abhor­rence or are obviously immoral in their

incidence."

Thirdly,
it may be that the rule of customary law which absolves or relieves a
natural father of any duty or obligation to support
his illegitimate
child is not necessarily repugnant to justice or morality because the
child belongs to the mother's family who
are respon­sible for his
support and care and are able to do so. In other words the child is
not left without provision and
responsibility for his maintenance.
(Ex parte Robert 1953(3) SA 97 at 100 SR.) I wish to emphasize
however that I do not and need
not express any final view on this
aspect of the case. It does not arise in the present case.

Fourthly,
if it is established, however, that such an illegitimate child who
belongs to the mother's family is without adequate
means of support
because the mother's guardian, or whoever is responsible for his
maintenance under customary law, is unable, or
cannot be compelled,
to support such child, then the mother and father of the child become
liable for its maintenance. It would
obviously be repugnant to
justice or morality to leave a child without adequate provision for
its maintenance (cf R v Rantsoane,
supra p286 and Nkoko v Nkoko, 1967
- 70 LLR 328.)

The
effect of this approach is that while customary law

12

is
ordinarily to be administered when an illegitimate child belongs to
the mother's family who then becomes responsible for its
maintenance,
the common law will be enforced whenever those responsible under
customary law for the child are unable to support
it adequately.

If
customary law concerning an illegitimate child is not invoked or
applied by the parents of the mother of a child, then obviously
the
common law on the sub­ject will govern their respective rights
and obligations.

It is
relevant to appreciate that customary law is often not enforced or
not observed, or is modified in practice, as a result of
changing
economic conditions or cultural standards. This is particularly the
situa­tion in urban areas. (Kuper & Kuper,
African Law
Adap­tation and Development (University of California Press) at
199-200; Julius Lewin, Studies in African Native
Law (Cape Town:
African bookman) Chapter 10 and The Future of Law in Africa, edited
by Professor A N Allot (Butterworth.)

On the
facts of this case the appellant paid compen­sation for seduction
as required under customary law. He wanted to marry
the respondent
but the magistrate accepted respondent 's version "that it is
(appellant) who has not fulfilled the essential
for the marriage by
paying Bohali". The evidence, therefore, shows

13

that the
parties regulated their association and its con­sequences in
accordance with Lesotho Law and custom. It clearly emerges
that the
child is without adequate support and that the respondent is also not
able to support the child without assistance from
the appellant. I
am, therefore, of the view that the learned magistrate rightly came
"to the conclusion that both parties
will have the
responsibility to maintain the child Lebohang" and ordered the
appellant to pay respondent the sum of M15.00
per month as his
contributions towards the maintenance of the child.

For these
reasons I would dismiss this appeal with costs.

I would
further order that the appellant is liable to pay the maintenance
ordered by the magistrate with effect from the date of
judgment by
the magistrate, i.e. 19th May 1982.

I would
also order that the costs are to go into the reve­nue of the
Chief Legal Officer under the provisions of section 10(5)
of the
Legal Aid Act 1978 (Act 19 of 1978).

B GOLDIN

JUDGE OF APPEAL

I agree

I A MAISELS

PRESIDENT

W P SCHUTZ

JUDGE OF APPEAL

14

An order
will issue in the terms proposed by Goldin, J A.

I A MAISELS

PRESIDENT