IN THE HIGH COURT OF LESOTHO
In the Appeal of :
PELAELO MOHAFA Appellant
EPHRAIM MOTSOTSOANA Respondent
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
In giving judgment the Local Court President
"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
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
In his judgment the learned Judicial Commissioner
"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 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
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
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
1st June, 1981.
Attorney for the Appellant : Mr. Mda
Attorney for the Respondent: Mr. Maqutu.
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