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CIV/A/11/91

IN THE
HIGH COURT OF LESOTHO

In the
Application of'

TEBOHO
RAMPOKANYO Applicant

and

'MATIERO
MPASI 1st Respondent

TIEHO
MPASI 2nd Respondent

Delivered
by the Hon. Mr Justice W.C.M. Magutu. Acting Judge on the 22nd
February. 1994

This is
an appeal from the review order of the Magistrate for the district of
Mohale's Hoek The Magistrate had set aside the judgment
of the
Likueneng Central Court in its appellate jurisdiction which reversed
the judgment of the Likueneng Local Court after the'Central
Court had
ordered fresh evidence to be given on appeal

The
review order of the learned magistrate is

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very
short and it reads.

"Having read and heard both parties in the above matter, it has
come to the notice of this court that new evidence was led
during the
hearing of the appeal when 'Maneo and Abraham were called before
Court and asked to give evidence which was not led
at the Court of
first instance This was a gross irregularity and on that alone I set
aside the proceedings of the Central Court
and reinstate the judgment
of the Local Court "

Before
going into the merits of the appeal, I must give a short history of
this case. Teboho Rampokenyo who is the Respondent in
this matter was
plaintitff in the Court of first instance. His claim was that

"First Defendant's son Tieho had impregnated his daughter 'Maneo
Rampokanyo, therefore, he claims 6 head of cattle or M600.00,
each "

After the
trial Court had heard the evidence on both sides, it found for
Plaintiff who is Respondent before this Court. The Central
Court in
its appellate jurisdiction had ordered evidence to be heard afresh
and at the end of proceeding, reversed the judgment
in favour of
Plaintiff and found for Defendant who is appellant before this Court.

There
does not seem to be an application from

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either of
the parties for the hearing of fresh evidence If such an application
was made, it is not recorded In terms of Rule 19
of the Basuto Court
Rules of 1961, the Central and Local Court are courts of record This
omission is an irregularity

Tieho
Mpasi, the Second Defendant in the Court of First instance who was
then the Second Appellant, gave a sworn statement that
he was not
allowed to put questions to Plaintiff's witness 'Maneo in connection
with Exhibit "E" The court called P W
1 'Maneo (the girl
rendered pregnant and asked her questions and called the Second
Respondent (Tieho who is the alleged to have
rendered P.W 1 pregnant)
and asked him questions. There is no dispute that Abraham or Tieho
wrote Exhibit "E".

There is
no doubt that the calling of Tieho or Abraham (Second Defendant) and
her lover 'Maneo P.W.I was irregular. The question
which the
Magistrate ought to have asked herself was whether this irregularity
was of such a serious nature that it could vitiate
trial. The second
question that the Magistrate ought to have asked herself was whether
the bringing of both lovers to the appellate
court for

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cross-examination
prejudiced either party Section 8(2) of the High Court Act of 1978
has omitted civil cases in connection with
what ought to happen if
any irregularity is detected, nevertheless this provision applies to
civil cases as well. The reason being
that even in civil cases no
judgment:-

"shall be set-aside or altered by reason of any irregularity or
defect in the record of proceedings unless it appears to the
High
Court that a failure of justice has in fact occurred,"

Lord de
Villlers in Receiver of Revenue v. Sadeen 1912 AD 339 at 342 stating
the Common Law Powers of review says.

"In ordinary legal proceedings, there may occur some
irregularity of illegality which would justify the setting aside of
legal proceedings "

Jones and
Buckle The Civil Practice of the Magistrate Court in South Africa
Vol.1 at page 324 defines review is a process,

"by which apart from appeal, the proceedings of inferior courts
of justice, both civil and criminal, are brought before ..
a
reviewing superior court, in respect of grave irregularities or
illegalities occurring during the course of such proceedings
"

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This
definition of review is a summary of the definition made by Innes
C.J. in Johannesburg Consolidated Investment Company v Johannesburg

Town Council. 1903 TS III.

By this I
understand that not all irregularities should lead to the quashing of
proceedings; Only those which are grave and lead
to failure of
justice should be acted upon. In other words irregularities of one
kind or the other should be expected from time
to time because no
judgment or conduct of court proceedings can be perfect However,
before a reviewing court can interfere, it
must be satisfied that the
nature of the irregularity is sufficiently serious to justify the
reviewing court in interfering or
quashing those legal proceedings

In this
case there is little doubt that the Central Court president by
re-opening the trial to further evidence gave himself the
power to
assess credibility as if he was the trial court The President of the
Central Court was able to upset the finding of the
trial court
because of the improvement to Abraham's evidence that was adduced on
appeal This must have led to serious prejudice
to Plaintiff

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because
the appellate Court stepped into the arena to adduced favourable
evidence to Second Defendant.

At pages
3 and 4 of the record Abraham's evidence was a bare denial in which
Abraham did not specifically deny that he and P W 1
from Pimm's
residence, they went to a donga in a tree plantation where they had
sexual intercourse. Abraham did not even remember
whether he had
discussed P W.l's pregnancy with 'Maneo P.W.1 He admitted writing a
letter in which he promised to meet P.W 1 at
the camp on 30th April,
1988 (the very day P.W,1 claims there was sexual intercourse that led
to pregnancy At page 8 of the record
Abraham improved his vague
evidence by saying.

"We parted with the girl at the Pmini's at the camp, we did not
go anywhere"

It is
this very evidence that led to the upholding of the appeal. The
Central Court disregarded the evidence given at the court
of first
instance Mr Mda for Respondent submitted in his view, the Central
Court allowed further evidence in order to fill gaps
in the case of
Defendant

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The court
of appeal should only allow parties to adduce further evidence only
in exceptional circumstances Vide Selloane Putsoane
v. Motlatsi
Lekatsu C of A. (CIV) No 16 of 1990 In the case of Gemma Mofubelu v
Rex 1978 LLR 65 Milne J,A, at page 70 in allowing
further evidence to
be led said.

"The circumstances were very special ... it is not to be taken
that the Court's decision implies that this Court, in the exercise
of
its powers ... will order further evidence simply in order to fill
gaps in the evidence led at the trial. Such a power will
be most
sparingly exercised and only in exceptional circumstances . "

This
irregularity of calling evidence unnecessarily on appeal although
both key witnesses were called (and there seems to have been
balance
so to speak) could not be ignored because of its result. The
Magistrate conclusion was therefore, correct when she set
aside the
Central Courts judgment and reinstated the Local Courts decision

Mr
Matabane for Appellant invited this Court to go into the merits
because he believed the leading of further evidence did not influence

the judgment of the Central Court. I have already held that it did,
but I will briefly ignore the Central Courts activities

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and go
over the evidence at the trial court

The girl
P W 1 says sexual intercourse took place on the 30th April, 1988 At
that time there is a letter written by Abraham arranging
a meeting
between him and P W 1 for the 30th April, 1988 See Annexure "D"
P W 1 says she became pregnant. The letter
Exhibit "E"
written by Abraham reveals a discussion between the two of them
Abraham says he first heard from P W 1 that
she was pregnant by
letter written by P W,l dated 16th May, 1988. On the 19th July, 1988
when Exhibit "E" was written
according to Abraham, P W 1
claimed to be in her third month of pregnancy No court could fail to
prefer the specific evidence of
P.W.I to that of Abraham on the point
that they had sexual intercourse on 30th April, 1988 in the light of
Abraham's bare and vague
denial which appears on pages 3 and 4 of the
record

The
record is badly typed and full of mistakes. Some mistakes have been
made by the President of the Local Court himself For example,
the
President of the Local Court has wrongly put the case number of
CC.44/89 in his judgment. He has put it as CC.60/89. See page
4 of
the record At page 3 of the record.

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the baby
is put as having been born on 1/9/88. I checked the original hand
written record shows P.W.1's baby was born 1/2/89. See
page 6 of the
hand-written original record If then the pregnancy began on 30th
April, 1988 and ended with the birth of P.W.1's
baby on the 1/2/89,
the gestation period was 277 days.

Gordon.
Turner and Price Medical Jurisprudence 3rd Edition (1953) puts the
average duration of gestation period as being between
280 and 283
days if it is computed from the last menstruation date to the day the
woman goes into labour Henning J in R. v Sewgoolam
1961(3) S.A 78 at
page 81A stated'

"In my opinion, the normal period of human gestation is a fact
so notorious and generally accepted in South Africa that the
Court is
entitled to take judicial notice thereof. The normal period is
usually stated to range from 273 to 280 days "

To the
man in the street the period of gestation of a human being is about
nine months. P.W.1's baby was born within 273 and 280
days. This fact
in itself

corroborates
the evidence of P W 1 fully

It is
significant that in Exhibit "E" Abraham did not
specifically deny having had sexual intercourse

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with P W
1 on the 30th April, 1988 he only says on that day he asked P.W 1 to
tell him about her full history, P W.1 failed to do
so He then says
in his opinion he is not responsible for the pregnancy, and Abraham,
therefore, concludes that P W.1 1 is trying
to cheat him There is a
typing error at the beginning of the letter where 15th April, 1987 is
typed as 15th April, 1989 Abraham
says because on 15th April, 1987
she claimed she was pregnant and this turned to be a false alarm, she
cannot be trusted especially
because she said she was testing him

Abraham
and his parents and the President of the Central Court are not aware
of the fact that once sexual intercourse is admitted
Van der Riet J.
in S v. Sambo 1962(4) S A 93 at 94 EF observes that Voet 4,37 6 is of
opinion.

"that the fixing of the date of intercourse would not avail a
man, for he would fix a date in order to free himself of liability
"

Van de
Riet J. observes that the weight of authorities is that once sexual
intercourse is admitted it is the woman who would rather
be believed
on the question of partemty even where a woman had other sexual

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partners
The jaundiced view of men in sexual matters which virtually presumes
all men are liars in matters of sex is far from fair
Even, if it is
so, it has a long history in our legal tradition

The Court
of Appeal of Lesotho has just accepted that women also should not be
presumed to liars in matters of seduction and sexual
offence.
Therefore, since the case of Limeho Lesoli v. Nthabiseng Meheulane C
of A. (CIV) No. 9 of 1982, it is now possible to
find for the woman
on the single,evidence of that woman provided the merits of her
evidence are beyond question. Corroboration
of the woman is no more
mandatory It seems to me in these days of free love and contraception
an admission of sexual intercourse
by a man should not put such a man
completely on the defensive vis a vis a woman

The
correct statement of the law which is found in R v. Swanepoel 1954(4)
S A 31 at page 40 C and which is steeped in history is
that if a man

"admits intercourse at a time or times, when, in the ordinary
course of nature such intercourse could have led to the birth
of a
child, the admission raises a presumption that intercourse resulted
in pregnancy, and the accused is the father of the child
born

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thereafter."

This is
the normal burden which in pleadings is brought about by a plea of
confession and avoidance. The act that could give birth
to a child is
admitted but the defendant raises the defence of facts that would
show that the expected child would not have been
fathered by him The
onus is, therefore, on the Defendant to establish on a preponderance
of probabilities that he could not possibly
be the father despite the
possibility that he could be because of the admission of sexual
intercourse. In this case, because Abraham
was disbelieved by the
trial court, the case against him had been proved The appellate
Central Court could not interfere unless
it could be shown the trial
court was wrong.

Simpson
in Forensic Medicine 5th Edition at page 157 says a foetus which is
over 8 months can service without special medical care
This means
once pregnancy is over 8 months a normal baby might be born.
Similarly as the case of S. v Sewgoolam (supra) shows a
child who
weighs 9 lbs who is born after a gestation period 310 days cannot
necessarily be presumed not to have been born within
reasonable time
The controversy in cases of that kind

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continues.
Plaintiff, the father of P.W.I at page 1 of the record says the child
was born in December, 1988 which is about 8 months
of pregnancy This
could have been acceptable (and enough to prove paternity) although
that would mean the child is slightly premature.
'Maneo (P W 1) says
the child was born "on the 1st February, 1989 on the tenth month
which was after nine months" We
have seen the child was in fact
born at the expected time of 277 days from the date sexual
intercourse.

It seems
to me after looking into the evidence these findings of the trial
court cannot be assailed P W.1 has shown not only on
the balance of
probabilities that Abraham is the father of her child, but the
surrounding circumstances and other evidence virtually
put this fact
beyond doubt.

As
already stated, the Magistrate had good grounds for setting aside the
Central Court because, there were no grounds to hear fresh
evidence
on appeal. There was not even an application from the parties for
this to happen. Indeed fresh evidence was not really
called, but the
Central Court merely called the two lovers and cross-examined them It
then used

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what was
yielded by the cross-examination and which favoured the Defendants to
set aside the trial court judgment and found for
Defendants
Therefore, magistrate used her review powers correctly in restoring
the trial court's judgment

This
appeal is dismissed with costs in the light of the aforegoing.

W.C.M.
MAQUTU,

ACTING
JUDGE.

22ndFebruary,1994.

For
Appellant ' Mr Matabane,

For
Respondent: Mr Mda.