CIV/A/25/81

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MOTLELENG
MATSINYANE Appellant

v

MOSALA
MATSINYANE Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice F.X. Rooney on the 1st day of November, 1982.

Mr.
Moorosi, Legal Aid Counsel for the Appellant Respondent in Person.

The
appellant has two sisters, 'Mantai and 'Mafusi. In November 1978,
these two ladles assaulted the respondent's wife and injured
her. On
the 1st February, 1979 in the Matsieng Local Court, the respondent
claimed

M300
compensation.

The
appellant did not deny that the assault had taken place. Instead, he
relied upon an allegation that his sisters were married
women whose
husbands were responsible for their delicts. The local court decided
that the appellant should pay compensation of
M130 on account of the
unlawful actions of 'Mafusi. In regard to 'Mantai the court held that
she was married.

The
appellant appealed to the Matsieng Central Court and there was no
cross-appeal. The appellant was successful as the central
court was
satisfied that 'Mafusi was also married.

The
respondent took the matter to the Court of the Judicial Commissioner.
The learned Commissioner decided that 'Mafusi is not yet
the legal
wife of her purported husband. He made an order setting aside the
judgment of the central court and reinstating that
of the

2

with
costs in all courts. The appellant applied for leave to appeal
against the judgment of the Judicial Commissioner and this was

granted on the 25th May, 1981.

It is
likely that the parties to this dispute are members of the same
family, but, I do not know their exact relationship. In her
evidence,
the respondent's wife 'Makarabo told the Court that she never knew
that 'Mafusi had a husband. She went on

"I have never heard that her husband was present ever since she
started staying at this place".

That is
the only evidence given by the present respondent in support of his
contention that 'Mafusi was still under her brother's
tutelage.

The
present appellant told the local court that he had no responsibility
for the actions of 'Mafusi as she was married in the village
of
Motanyane to Letsema Lets'aba the son of Lefu Lets'aba. He said that
by arrangement with her husband, 'Mafusi is still living
at her
maiden home. She was brought there because she was very ill. He said
that he expected her husband to come and take her away
at any time.

He
produced a bewys which he said proved that bohali had been paid. This
document which is dated the 22nd September, 1971 certified
that Lefu
Lets'aba was in lawful possession of two donkeys which he was
authorised to sell. It is stated that the donkeys were
"bohali
to Lefata Matsmyane of Neo Pita". The appellant told the Court
that 'Mafusi's husband was away at work. He called
his witness,
'Mafusi herself and she said that she was married to Letsema. She
confirmed that she was staying with her brother's
family by agreement
with her husband. She said that her husband said that he would take
her away as soon as he had been allocated
a site upon which he could
build.

Cross-examined,
'Mafusi said that her husband was at the mines and that she was using
her maiden surname because she was staying
at her own home. She
agreed that

3

she is
bound to inform her husband about her misdeeds and that he should be
the person to answer for them. She has stayed with her
brother for
two years.

A witness
Mojalefa Matsinyane said that he knew about 'Mafusi's marriage, but,
he believed that she was under the responsibility
of her husband.

I take
the view that the proper resolution of this case depends to a large
extent upon the onus of proof. In answer to the allegation,
the
appellant set up a special defence that he was not responsible for
the acts of his sister by reason of her marriage. For his
defence to
be upheld the appellant was required to satisfy the court that he was
entitled to succeed on it (See Plllay v. Krishna
1946 A.D. 946)and in
particular the words of Davis A.J.A. at 951 and 952.

Although
the parties may be related, 'Mafusi's marital status is a fact more
likely to be within the knowledge of her brother as
the person
otherwise responsible for her. It was easier for the appellant to
establish the existence of the marriage than for the
respondent to
establish the negative proposition that 'Mafusi was still unmarried.
I am satisfied that the appellant was under
a duty to prove on the
balance of probabilities that his sister was married to the person he
alleged was her husband.

The best
evidence to support the marriage would have been the testimony of the
alleged husband. His absence was not satisfactorily
explained.
Although it is said that he was working in the mines in South Africa,
no application for a postponement in order that
he could come forward
to give evidence and accept his responsibility in the matter was made
in the local court. 'Mafusi had an
interest in protecting her brother
upon whom she apparently now relies for her support. The reference on
the bewys to the bohali
is not in itself persuasive evidence, as the
chief who signed it was not called to explain it. The reference could
have been a
mistaken one. On the other hand 'Mafusi is living at her
brother's house and is using

4

her
maiden name. That has been in that situation for two years.

I take
the view that the appellant did not succeed in discharging the onus
upon him to establish that he was not responsible for
his sister
'Mafusi. The decision of the Matsieng Local Court and the Judicial
Commissioner are correct.

I direct
that this appeal be dismissed with costs.

F.X.
ROONEY.

JUDGE

1st
November, 1982.