CIV/A/13/82
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
ROBERT POTLANE NTLE Appellant
v
KHUBELU MANTHONA KHAKETLA Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 30th day of March 1983.
I dismissed the appeal on 18th March 1983 and said my reasons will be filed later. These now follow :-
This is an appeal from the Judgment of a Magistrate of the First Class sitting at dacha's Nek dated the 5th May 1982 in which he awarded the respondent(orlglnal plaintiff) the sum of M15 per month to be paid by the appellant (original defendant) for the maintenance of a child bom to the respondent and admittedly fathered by the appellant after he had seduced her.
The only issue at the appeal was one of law.
The parties are rural Basotho and it is common cause that the appellant had, in accordance with the customary law of the land as enshrined and confirmed by ss, 4(1) 5 and 6(1) of the Laws of Lerotholi, paid six heads of cattle to respondent's parents as compensation.
The appellant says the respondent cannot have it both ways i.e. compensation in cattle to her parents and a contribution for the
maintenance of the child.
In my view the right to maintenance has not been extinguished by the payment of compensation. The object of the
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latter is to make amends to the parents who may, upon the daughter's possible subsequent marriage to another man, lose out on the quantum of the usual bohali cattle paid by the suitor (or his parents) on the grounds that she had been deflowered and they are not entitled to full bohali.
Rooney J in Motlatsi Ramokoka v Rex CRI/A/8/81 dated 2nd February 1981-unreported analysed this issue at length and came to the
conclusion that there is a conflict between the civil law and the customary law and the aggrieved party must make a choice. It is out of deference to his views that I postponed giving reasons as to why I am unable to agree. I had consulted an experienced colleague on the bench and a distinguished assessor (Mr.Mohapeloa) on the subject but the decision of course is entirely my own.
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 p. 1061 to p.1084 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 illegitimate children.
I would dismiss the appeal with costs but in terms of s.8 of the Court of Appeal Act 1978 leave to appeal to the Court of Appeal is granted as there is an important point of law involved.
Both parties appeared before me in person. The respondent
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was ill clad and barefoot. If the appellant wishes to appeal and does in fact note an appeal the Registrar should inform the respondent of her right to make an application for leave to defend in forma pauperis or seek help from the Chief Legal Aid Officer at the Ministry of Justice under the Legal Aid Act 1978. Time for appeal will run 10 days from the date of this Judgment to allow for any delay in the post.
Will the Registrar please post a copy of the Judgment to the appellant and to the respondent.
CHIEF JUSTICE
3lst March, 1983
For-Appellant : In Person
For Respondent: In Person