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

2

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

3

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