CIV/A/2/81
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
CLEMENT MPHALANE NOTSI Appellant
v
JAMES LEONARD MACPHERSON Respondent
JUDGMENT
Delivered by the Hon. Acting Chief Justice,
Mr. Justice M.P. Mofokeng on 3rd July,1981
This matter first came before Likueneng Local Court
in which the respondent sued the appellant for seduction and
claimed six (6) head of cattle or their monetary equivalent,
R1200.00, as compensation. In this judgment I shall simply
refer to the parties as plaintiff and defendant respectively.
The plaintiff alleged that the defendant's son had
rendered her daughter pregnant. The defendant denied the
allegation. Both parties gave evidence at the end of which
the President of the Court gave Judgment, with costs, in
plaintiff's favour.
The defendant noted an appeal to Likueneng Central
Court. That Court, for reasons which it enumerated seriatim
in its Judgment, set aside the Judgment of the Court a quo
and made an order that "The respondent (plaintiff) is given
chance to start the case afresh and prove that the impregnation
was not committed by Mochesane". Instead of the plaintiff
complying with the Court's order or proceeding to the next
appellate court, she invoked the provisions of section 26 of
the Central and Local Courts Proclamation 1938. This section
gives the magistrate powers of revision. As Cotran, J, (as
he then was) stated in the case of 'Matau Makhetha v. Rex,
1974-75 L.L.R. 431 at 432, these powers are certainly very
/wide.

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wide. But, continued the learned Judge in the case of
T. Malope v. M. Tlale, CIV/APN/5/75 (quoted in Makhetha's case
(supra) at page 432E):
"        a magistrate should not under the section,
constitute himself a court of appeal and arbitrarily
interfere with the working of the lower Court. But
he is empowered  to ensure that there is no
irregularity on the face of the proceedings or
prejudice or bias in a decision given by the President
of a Local or Central Court".
Again in the words of Evans, J, in the case of 'Makhoana Tlale
v. Tseko Malope, CIV/A/8/72 (unreported).
".       the magistrate  was dealing with a
review only. It had therefore to be shown by the
applicant, that the Local Court or President had
a personal interest in the case, malafides by him
or gross irregularity in the conduct of the
proceedings".
One of the grounds of appeal is framed thus :
. "No procedural irregularities were disclosed
justifying the Magistrate's intervention".
The main reason for the learned Magistrate's re-
instatement of the trial Court's judgment is contained in
these paragraphs from his reply to the grounds of appeal :
"The President of the Court of first instance'
believed the evidence of the plaintiff's on
the face of the case and he rejected that of
the defendant; and the court of appeal was
not supposed to interfere with those findings
of fact-see CIV/A/34/74 of the High Court of
Lesotho (unreported) in the case of Necodema
Matia versus Teboho Sekoati where the Honourable
Chief Justice Cotran states inter alia:
'It has been said time and again that
an appeal court will not interfere
with findings of fact, unless these
findings are unreasonable or cannot
be supported on the evidence'
There was also corroboration in the case of Vickie
Mecpherson (the girl who was pregnant)-CIV/A/4/75
of the High Court of Lesotho, in the case of John
Khetha versus John Ramahlape by I. Isaacs,A.J.
The reviewing Court, which is this one, merely
reinstated the Judgment of the court of first
instance on those grounds especially because in
its opinion, the appeal court (Likueneng Central
Court) was not expected to have interfered with
findings of fact of that court".
It is quite obvious from the reading of the above-
quoted paragraphs that the learned Magistrate has seriously
/misdirected

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misdirected himself. It is a well-established principle that
a trial Judge has advantages, which an appellate court cannot
have, in seeing and hearing the witnesses and in being steeped
in the atmosphere of the trial and of course it should not be
overlooked that he has the opportunity of observing their
demeanour, appearance and whole personality and the result
of all this is that an appellate court is very reluctant to
upset the findings of the trial Judge. However, in Lesotho
appellate tribunals will upset the findings of a trial court
if their findings or conclusions or assessment of the facts is
unreasonable. (See Poulo Nkele v. Regina 1963-66 H.C.T.L.R.
256 at 259F, which, though a criminal case sets out the
principle correctly). What has been said so far only concerns
the functioning of an appellate tribunal. The learned
Magistrate totally lost sight of the fact that the Central
Court in this case was operating as an appellate tribunal and
in substance there was, therefore, a retrial before it. The
learned Magistrate's court was not an appellate tribunal but
merely exercising revisionary powers. It could not set aside
the judgment of an appellate tribunal because it, prima facie,
discharged its functions as such. As a revisionary court he
found no irregularities, bias, malafides nor personal interest
on the part of the President. The learned Magistrate grossly
misdirected himself by constituting his court as an appellate
tribunal whereas it possessed only revisionary powers.
In the circumstances of this case I am of the opinion
that the learned magistrate's Review Order ought to be set
aside and it is accordingly so ordered.
The Judgment of the Central Court is hereby restored.
Costs are awarded to the appellant.
ACTING CHIEF JUSTICE
3rd July, 1981
For Appellant : Mr. Maqutu
For Respondent: Mr. Mda