C of A
(CIV) 9 OF 1982

IN THE
LESOTHO COURT OF APPEAL

In the
matter between :

LIMPHO
LESOLI APPELLANT

and

NTHABISENG
MPHEULANE RESPONDENT

HELD AT
MASERU

Coram

SCHUTZ J.A.

VAN WINSEN J.A.

STEYN A.J.A.

2

JUDGMENT

This
matter comes before us by way of appeal from the judgment of the
Chief Justice. The appeal is directed at the whole of the
judgment in
terms of which the following order was made:

Judgment
for the Plaintiff in the sum of M4173 with 6% interest from the date
of the Judgment, and taxed costs on party and party
scale, including
the costs of CIV/APN/30/81, such costs to go into the revenue of the
Chief Legal Aid Officer under the provisions
of s.10(5) of the Legal
Aid Act 1978 (Act No. 19 of 1978).

The above
order was made by the Chief Justice pursuant to an action instituted
by Respondent, (Plaintiff in the Court a quo, and
referred to as such
herein) against Appellant (Defendant in the Court below and referred
to as such) for damages and certain other
financial relief arising
out of an alleged seduction.

In the
annexure to the notice of appeal, the following grounds on which the
judgment of the Chief Justice is challenged are set
out:

1. That
   the Honourable Mr Justice T S Cotran erred in finding that Mrs
   Manthabiseng Pitso was not prepared to become involved more
   than she
   had already been and accordingly disregarding her clear evidence
   contradicting the Respondent.

   
   

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2. That
   the Honourable Mr Justice T S Cotran erred in finding that the
   Appellant is a man without the slightest scruple.

   
   

3. That
   the Honourable Mr Justice T S Cotran erred in accepting Respondent's
   evidence above that of the evidence given by Appellant.

   
   

4. That
   the Honourable Mr Justice T S Cotran erred in finding that
   Respondent's evidence need not be corroborated in the claim for

   seduction.

   
   

5. That
   the. Honourable Mr Justice T S Cotran erred in not allowing
   absolution from the instance under claim A.

   
   

6. That,
   in respect of the claim for seduction, the Honourable Mr Justice T S
   Cotran erred in awarding damages for the full bohali
   and not the
   reduced bohali by virtue of the alleged seduction.'

   
   

I proceed
to summarise the facts.

Plaintiff,
then aged about 16, met the Defendant, then aged about 45, at a bus
stop in Maseru town. She was looking for work as
a domestic servant.
She was an orphan brought up by her grandfather, but he too had died
in 1979 and it would seem as if she was
then destitute.

Defendant
did employ Plaintiff as a housekeeper, but there is a dispute between
the parties as to whether there was any agreement
about monthly wages
and whether such wages were ever paid.

Plaintiff
alleges that it was whilstshe was in Defendant's employ and some time
before May 1980, that Defendant had had intercourse
with her_and that
as a result of this intercourse she became pregnant. The Chief
Justice in his judgment summarises her evidence
thus :

4

'The Defendant left Motimposo with the Plaintiff in January 1980 and
rented a room in another locality in Maseru from a landlady
called
Manthabisent Pitso (PW2). The Plaintiff says life went as usual until
some days before May 1980 when the Defendant fondled
her. After a day
or two he invited her to-have sex with him, saying she 'had many
pimples on her face'. She testifies that she
did have pimples on her
face then but refused his suggestion. She had never been with a man
before. She says he slapped her and
sjamboked her. with a small whip.
She screamed (not for long) but finally submitted. He had intercourse
with her several times
during that one night, but no intercourse took
place thereafter.'

Plaintiff
called Mrs Pitso to testify, but her evidence did not provide
corroboration for the Plaintiff's version that Defendant
had had
intercourse with her. What is of significance is that Mrs Pitso,
having observed Plaintiff's condition at the end of November
or early
December, informed the Defendant about it. According to her,
Defendant gave her some money (Ml.20) to take the Plaintiff
to
consult a doctor. She took Plaintiff to the Queen Elizabeth II
Hospital where it was confirmed that she was some 7 months pregnant.

Defendant
gave evidence. He denied the Plaintiff's allegations that he had
intercourse with her on that one night in 1980. He alleged
that she
was a girl of loose character and that he had seen her out with boys
and had consistently warned her about the dangers
of her conduct.

5

Insofar
as the appeal on the merits of the matter is concerned, the issue was
one of credibility. The Learned Chief Justice made
the following
comment concerning the Plaintiff.

'Her
evidence was, however, given in a matter-of-fact way, devoid of
emotion, and rather impressive for an 18 year old

The
Learned Chief Justice goes on to say that the Defendant struck him as
'a man without the slightest scruple'. He (the Chief Justice)
goes on
to find that the Defendant was capable of inventing evidence and it
is clear from his analysis of the Defendant's testimony
that he found
him to be unworthy of credence, whilst on the other hand he was
"completely convinced that what she (Plaintiff)
told him about
the Defendant was substantially true".

The Chief
Justice found that the Plaintiff was entitled to damages for the
assault to which she deposed. He held that this was not
a major
assault and he awarded her M100 under this head. On the issue of
damages for the seduction, the Learned Chief Justice had
the
following to say :

'Damages
for seduction is a more difficult matter. If she had a father, or a
person who stands to her in loco parentis, in a rural
or even an
urban atmosphere or society, he would have been able to claim and
succeed in getting from the guilty party 6 heads of
cattle or the
present equivalent of M200 per head making a total of M1200 (laws of
Lerotholi Part II s.6 and see Duncan Sotho Laws
and Customs page
107). But from that source she has no one to claim and most probably
her breach with custom is now complete or
nearly so. Should this
Court adopt this measure of damages? I think not :

In
Basotho society the parents do not, on their daughter's seduction,
lose her or the wealth she might bring. She remains for all
intents
and purposes part and parcel of their household and if she gives
birth to a child that child is theirs and bringsit up
accordingly.
Her seduction is often converted into a fully fledged marriage. Were
this not to happen

6

true her
marriage prospects are diminished, and it is even more true that if a
suitor does in due course emerge, that he or his
parents, would
insist, or try to, on paying less 'bohali' than the normal one of 20
heads. Nevertheless, the girl and her child
(or children) are at
least assured, for the duration of her parents life time perhaps
beyond, of a great measure of sympathy and
support. The Plaintiff in
the case before me has none of these advantages. I think I have to,
in the assessment of damages for
seduction, bear this in mind. It
would be inequitable not to. Under this head I think I am justified
in awarding her the full equivalent
in money terms of what her
parents, if she had any, would have benefited (that is 20 heads at
M200 viz M4000.'

The above
brief summary forms the basis upon which the order against which the
appeal is directed, was made. Defendant appeared
before us in person.
Regrettably, his argument was of little assistance to us. In fact
much of the time was taken up with attempts
on his part to give
evidence or to make completely unsupported allegations of prejudice
against the presiding judge and officials
of the court.

It
accordingly is necessary for us to examine the evidence and the
findings of the Chief Justice with reference to the grounds of
appeal
set out in the notice. A reconsideration of the evidence convinces me
that no reasonable grounds exist why we should conclude
differently
from the court a quo on the critical issue of the credibility of the
two. principal actors. There is certainly considerable
ground for
finding that Defendant was a lying witness and that he deliberately
fabricated evidence in order to impugn the character
of the
Plaintiff. The deliberate fabrication of this evidence must, as
indeed it did, have weighed heavily against him in determining

whether or not the Plaintiff had discharged the onus which rested
upon her.

7

I wish to
dual specifically with a ground of appeal on the merits which perhaps
requires more serious consideration than the others.
I refer to the
ground which contends that the Learned Chief Justice 'erred in
finding that Respondent's evidence need not be corroborated
in the
claim for seduction'.

The South
African courts held for many years that in seduction and paternity
cases, a woman's testimony against a man's, requires
corroboration.
This rule of practice was, however, finally abandoned in Mayer vs
Williams 1981 (3) S.A. 348 (A). In summarising
the reasons for this
conclusion, Trengove, J.A. says the following :

1. 'the
   rule is based on a misunderstanding of Roman-Dutch procedure in
   actions of this nature (see Davel vs Swanepoel (supra at
   388); F P
   van den Heever Breach of Promise and Seduction in SA Law at 51-59;
   Schmidt Bewysreg at 48);

   
   

2. it
   seems to me to be an anomaly that "in any field of
   investigation a greater certainty of proof may be required where

   civil rights are in issue than when a person is being tried
   criminally". (See R v W (supra at 779-780));

   
   

3. the
   rule as formulated is, in my view, inappropriate in our modern
   system of civil trial procedure. (See F P van den Heever (op
   cit at
   59); Hoffman SA Law of Evidence 2nd ed at 410); and

   
   

4. the
   rule appears to have been excluded by the provisions of s 16 of Act
   25 of 1965.

   
   

I am of
the opinion, therefore, that courts should no longer, as a matter of
law, insist upon corroboration of the evidence of complainants
in
paternity or seduction cases.1

He
continues in his judgment, however, to confirm that in cases of this
nature there is a need for special caution in scrutinising
and
weighing the evidence of the complainant. He goes on to say –

'Experience
has shown that it is essential for the purpose of doing justice
between the parties in this class of case –

8

where
allegations of paternity are so easily made and with such difficulty
rebutted, and where there is often a strong temptation
either to
conceal the identity of the real father or to impose liability upon
the person who is best able to bear it - that the
evidence of the
complainant should be approached with caution. As a rule of practice

the trial
court should, therefore always warn itself of the inherent danger of
acting upon the testimony of the complainant in a
paternity case.'

This
reasoning commends itself to me. The importation of an artifical
criterion of corroboration in a particular class of case as
a
prerequisite for the Court's finding, does seem to me to be
'inappropriate in a modern system of civil trial procedure'. At the

same time, however, I would confirm the need for caution in
adjudicating upon the responsibility of a complainant's testimony in

cases of this kind for the cogent reasons advanced by Trengove, J.A.

Applying
these criteria to the facts of the present case, I am satisfied that
–

1. the
   Learned Chief Justice did not err in holding that corroboration of
   the Plaintiff's evidence was not required as a matter of
   law;

   
   

2. a
   careful scrutiny of his judgment confirms that he approached the
   evaluation of the Plaintiff's testimony with the requisite
   degree of
   caution and that his acceptance of her evidence as clearly
   preferable to that of the Defendant, should be sustained.

   
   

For these
reasons the appeal on the merits should be dismissed.

Insofar
as damages for the assault is concerned, it seems to me that there is
no basis upon which this court is entitled to interfere
with the
award of M100 as damages for the assault.

I have
set out above the Learned Chief Justice's reasoning which underpinned
his substantial award for damages in respect of the
seduction.

9

To the
uninitiated , the approach of the Learned Chief Justice may, at first
blush, appear to be somewhat annual. However, there
is support for
his view in the authority he cites. 1 must also record that a first
reaction to the quantum of damages awarded is
that it is clearly
generous. The following considerations do, however, have to be taken
into account:

1. Plaintiff
   was at the time the seduction took place, a very young girl of 16 or
   at the most 17 years of age.

   
   

2. She
   was to the Defendant's knowledge an orphan and totally destitute.

   
   

3. By
   taking her into his home at this youthful age he, in a sense,
   assumed a kind of trusteeship over her.

   
   

4. He
   is a mature man whose judgment and sense of responsibility should
   have been well developed.

   
   

5. He
   acted throughout in a callous, inconsiderate manner. Moreover he
   persisted, right up to the time that he appeared in this court,
   in
   maintaining an arrogant attitude totally devoid of compassion or
   concern.

   
   

In
Defendant's favour one must take into account the fact that he did
not persist in his seduction of the Plaintiff and that the
pregnancy
was the consequence of a single series of aberrations during the one
night.

Weighing
up these factors, I have come to the conclusion that whilst the award
is clearly generous and may well have been more than
I would have
awarded, the disparity is not such that 1 deem it appropriate for
this court to interfere.

I would
accordingly dismiss the appeal with costs. I order that such 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 No. 19 of
1978).

J H STEYN

ACTING JUDGE OF APPEAL

I agree:

W P SCHUTZ

JUDGE OF APPEAL

I agree:

L VAN WINSEN

JUDGE OF APPEAL

Delivered
at MASERU this 6th day of July 1983.