CIV/A/12/80 IN THE HIGH COURT OF LESOTHO In the Appeal of : PELAELO MOHAFA Appellant EPHRAIM MOTSOTSOANA Respondent JUDGMENT
Delivered by the Hon. Justice F.X. Rooney on the 1st day of June, 1981. Mr. Mda for the Appellant Mr. W. Maqutu for the Respondent In 1978 the appellant made a claim in the Khuiting Local Court against the respondent for six head of cattle or M1,200 compensation for seduction of his daughter Nthabiseng by the respondent's son Lethusang. It is not in dispute that on the 7th of January, 1977 the appellant had sued the respondent for the abduction of the same daughter by the respondent's son and was awarded six head of cattle in compensation. The appellant told the Local Court that Nthabiseng was still living with the respondent's son and the girl had given birth to a child. He conceded that his daughter had willingly eloped with Lethusang in 1972. Nthabiseng's evidence was to the effect and that after she became pregnant her father refused to receive her back in her maiden home. She remained with the respondent's son. She said that there has been no seduction prior to her abduction and that subsequently her father had refused to consent to her marriage to Lethusang. In the Local Court, the respondent indicated that he was prepared to pay bohali but the appellant had refused to settle the matter by consenting to a marriage. 2/ In giving
-2- In giving judgment the Local Court President said : "The court wonders as to what plaintiff expects between his daughter end Lethusang in that he had allowed her to live with him as a man and a wife. How many seductions does he expect will occur for which he will claim compensation without negotiating the marriage? How much will he profit from seductions which Lethusang will be involved in?" The court dismissed the claim "so that the litigents can negotiate the marriage between their children." The appellant appealed against this ruling to Likoeneng Central Court. The Central Court dismissed the appeal because the appellant had already been compensated for the abduction. The appellant took the matter further to the Judicial Commissioner. In his judgment the learned Judicial Commissioner said : "I wish to concede that abduction and seduction are two separate delicts as it is not necessary for the abduction to be accompanied by seduction. But it does however happen that impregnation, child birth and loss of viginity frequently arise on the facts of abduction and in such cases they are part and parcel of abduction. Mo claim is ever made separately for them. In the circumstances there was only one delict of abduction and the appellant says he has been compensated for it. The appeal is therefore dismissed with costs to the respondent." The Judicial Commissioner issued a certificate (which is technically defective) on the question of law whether a seduction which accompanies abduction should form a separate action since basically seduction and abduction are distinct delicts. It appears to me that Sesotho Law makes a clear distinction between en abductor and a seducer. The prime object of an abductor is marriage while a seducer has no such honourable intentions. The abductor frequently deflowers the girl in order to present her family with a fait accomplice and in most cases the matter is settled between the 3/ families
-3- families concerned and the couple are married. No such happy conclusion may be expected in seduction cases. The Judicial Commissioner has pointed out that no claim is ever made separately for these two delicts end I suspect that the reason for this is that such claims would be considered contradictory to each other. Under the Roman Dutch Law of delict all damages flowing from a wrongful act should be claimed in the same action. Oslo Lend Co. Ltd v. The Union Government 1938 AD 584 and Green v. Coetzer 1958(2) S.A. 697. These cases are based on a consideration of the nature of the lex aquilia as extended. The position is similar in English Law. Lord Helsbury said in the case of Darley Main Colliery Company v. Mitchell A.C. 127 at page 132 "No one will think of disputing the proposition that for one cause of action he must recover all damages incident to it by law once and for ever." There appears to be nothing in Sesotho Law repugnant to this principle. If the appellant had claimed damages for seduction as well as abduction in his original claim the Local Court could have considered the nature of his claims in the light of the customary law prevailing. The appellant cannot be permitted to seek in separate actions relief arising nut of the same cause. His daughter may have other children by Lethusang which, if the appellant present claim was allowed, would assist him were he to institute further claims for seduction. This would be contrary to reason, equity and common sense. For these reasons the appeal is dismissed with costs. F.X. ROONEY JUDGE. 1st June, 1981. Attorney for the Appellant : Mr. Mda Attorney for the Respondent: Mr. Maqutu.
