Thabo Mokuoane V 'Mamohato Raase (CIV/A/0066/2024) [2024] LSHC 199 (10 June 2024)

# Thabo Mokuoane V 'Mamohato Raase (CIV/A/0066/2024) [2024] LSHC 199 (10 June 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/199/eng@2024-06-10) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/199/eng@2024-06-10) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/199/eng@2024-06-10) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/199/eng@2024-06-10) [ __](mailto:?subject=Take a look at this document from LesLII: Thabo Mokuoane V 'Mamohato Raase \(CIV/A/0066/2024\) \[2024\] …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/199/eng@2024-06-10) [ Download PDF (157.5 KB) ](/akn/ls/judgment/lshc/2024/199/eng@2024-06-10/source) Report a problem __ * Share * [ Download PDF (157.5 KB) ](/akn/ls/judgment/lshc/2024/199/eng@2024-06-10/source) * * * * * Report a problem __ ##### Thabo Mokuoane V 'Mamohato Raase (CIV/A/0066/2024) [2024] LSHC 199 (10 June 2024) Copy citation * __Document detail * __Related documents Citation Thabo Mokuoane V 'Mamohato Raase (CIV/A/0066/2024) [2024] LSHC 199 (10 June 2024) Copy Media Neutral Citation [2024] LSHC 199 Copy Hearing date 26 April 2024 Court [High Court](/judgments/LSHC/) Case number CIV/A/0066/2024 Judges [Banyane J](/judgments/all/?judges=Banyane%20J) Judgment date 10 June 2024 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **HELD AT MASERU CIV/A/0066/24** **JC: 11/22** In the matter between **THABO MOKUOANE APPLICANT** AND **‘MAMOHATO RAASE RESPONDENT** **** **_Neutral Citation_** : Thabo Mokuoane v ‘Mamohato Raase [2024] LSHC 199 Civ (10th June 2024) **CORAM : BANYANE J** **HEARD : 26 TH APRIL 2024 ** **DELIVERED : 10 TH JUNE 2024 ** **Summary** Leave to appeal to the High Court from the Judicial Commissioner’s Court-certificate to appeal having been denied by the Court against whose decision the appeal lies-prospects of success determinative-none shown-application dismissed. **_Annotations_** **_Statutes:_** 1. Central and Local Courts Proclamation, 62 of 1938 2. The Penal Code, 2010 **_Cited Cases_** **_Lesotho:_** 1. Lesetla v Matsoso LAC (2000 – 2004) 444 2. Lesotho University Teachers’ and Researchers’ Union v National University of Lesotho LAC (1995 – 1999) 661 3. Leuta v Tab Consult (Pty) Ltd**** LAC (1985 – 1989) 242 4. Letsoela v Letsoela C of A(CIV) 11 of 1983 5. Inne Rangoanana v Barclays Bank International Ltd LAC (1985-1989) 93 **_Books:_** 1.Vernon v Palmer: The Roman-Dutch and Sesotho Law of delict (1970) **_JUDGMENT_** **BANYANE J** **Introduction** **[1]** This is an unopposed application for leave to appeal to this Court from a Judgment of the Judicial Commissioner’s Court. The matter involves a claim of six heads of cattle as compensation for the abduction of the respondent’s daughter. **Background to the application** **[2]** The dispute between the parties emanated in the Mokanametsong Local Court (hereinafter referred to as the Local Court). The 1st respondent in this application, as the plaintiff, sued the present applicant, as a defendant for compensation, alleging that he abducted her daughter. To avoid confusion, the parties are hereinafter referred to as they were in the court _a quo_. **[3]** The Local Court dismissed the plaintiff’s claim. The Judgment was taken on appeal to the Central Court which overturned/reversed the Judgment of the Local Court and awarded 6 heads of cattle to the plaintiff. In turn, the Judgment of the Central Court was taken on appeal to the Judicial Commissioner who upheld the finding of the Central Court. **[4]** The defendant applied for a certificate of the Judicial Commissioner in terms of section 28 (3) of the **Central and Local Courts Proclamation, 1938.**[1]** **This provision specifically governs appeals from the Judicial Commissioner’s Court to the High Court as follows; “28(3) There shall be no appeal to the High Court from the decisions of the Courts of Judicial Commissioners except in the following cases; (a) Upon question of law and custom reserved by Judicial Commissioner at the instance of either party or of his own motion, or (b) upon the certificate of the Judicial Commissioner that it is a fit case for the appeal on any other ground which appears to him to be sufficient ground of appeal”. **[5]** The Judicial Commission refused to issue the certificate. It was therefore necessary for the defendant to obtain leave of this Court to appeal hence the present application. **The application for leave to appeal** **[6]** To appreciate the grounds on which the application for leave is based, it is necessary to refer briefly to the facts of the matter as captured in the Judgments of the lower courts. The respondent in this application (the plaintiff in the Local Court) is the mother of Mantu Mokuoane. She sued the present applicant, as the defendant, for payment of Ten thousand (M10 000.00) or six heads of cattle as compensation for the abduction of her daughter. **[7]** The Local Court found that there was no evidence to support the plaintiff’s claim. The Court found that although the defendant admitted to having abducted the plaintiff’s daughter, the concerned families did not meet to resolve the matter. It found that the plaintiff failed to prove her claim and therefore dismissed it. **[8]** The plaintiff appealed to the Central Court. The main grounds of appeal to the Central Court were that the defendant ought to have lost the case in the Local Court because he failed to adduce any evidence, be it oral or documentary, to substantiate his allegations that he paid the compensation as alleged. **[9]** The Central Court considered the grounds and each party’s case and found that: a) It is common cause that the defendant abducted the plaintiff’s daughter. b) The defendant bore the onus to prove his allegations that he paid M10 000.00 as compensation but dismally failed to adduce evidence to prove this. (Notably, this issue arose during his evidence-in-chief but was never put to the plaintiff during cross-examination). c) The defendant failed to adduce oral evidence to corroborate his allegations and did not explain why the persons who allegedly accompanied him to the plaintiff’s home when the money was delivered, were not called in evidence. d) The Local Court gave no reasons for believing the defendant’s version that he paid this amount of money yet no other evidence, besides his say-so, was adduced. **[10]** The Central Court upheld the appeal and thereby set aside the judgment of the Local Court. As stated earlier, the defendant thereafter appealed to the Judicial Commissioner against the decision of the Central Court. His grounds of appeal were as follows: a) That he paid 10 heads of cattle, six of which the parties agreed to be compensation for abduction. b) That he was disabled from adducing evidence in support of the payment because his uncles who were part of the agreement had since passed on and his wife took all the necessary documentary proof of this agreement. c) The plaintiff maliciously instituted the claim after 13 years because he divorced her daughter and knew very well that documents were in her possession. **[11]** The learned Judicial Commissioner held that the evidence adduced in the Local Court established that the defendant abducted the plaintiff’s daughter with the intent to marry her. He referred to relevant pages in the record where the plaintiff’s evidence was corroborated by her witness, and noted that the defendant admitted this evidence. He further noted that the defendant’s grounds of appeal were that he had already paid compensation of ten heads of cattle, six of which were for abduction. He, however, tendered no proof that he paid the compensation as alleged. According to the learned Commissioner, the defendant bore the onus to prove the alleged payment. The Court accordingly dismissed the appeal. **The appellant’s complaint before this Court** **[12]** Before this Court, the defendant’s grounds of appeal upon which he bases his application for leave to appeal are that the learned Judicial Commissioner erred and misdirected himself by; 1. Failing to determine whether the appellant’s conduct of (sic) conforms to the requisites of abduction/chobeliso. 2. Upholding the decision of Quthing Central Court when it was clear from the facts that the appellant did not abduct the respondent’s daughter. 3. Imposing a sanction on the appellant for conduct that he did not commit. **Submission by Counsel** **[13]** The essence of the submissions made by Advocate Lehloenya for the applicant (defendant) is that the lower Courts erred in concluding that the plaintiff established the requisites of abduction and was thus entitled to succeed in her claim. According to her, the evidence revealed that the plaintiff’s daughter was over 16 years old and voluntarily left her parental home or eloped with the defendant to live with him. For this submission, she relied on the definition of ‘abduction’ in the **Penal Code Act** 2010\. In her view, the defendant’s admission of the elopement did not relieve the lower Courts of the duty to examine the elements of abduction in the circumstances of this case. In addition, M10,000.00 paid by the defendant was intended to regularize the elopement and thus validate the union into a customary marriage. **Applicable principles** **[14]** It is well established that the main consideration in an application for leave to appeal is whether there is a reasonable prospect that the appellate court may come to a different conclusion.[2] In **Letsoela v Letsoela,**[3]**** Winsen JA explained the position as follows; “The application for leave to appeal can only succeed if this court were satisfied that that the applicants have a reasonable chance of persuading a court of appeal that no reasonable court could have come to the conclusion arrived at by the trial court”. **Discussion** **[15]** The defendant’s case in the Courts below was that he did not forcefully remove Mantu from her home, but she voluntarily came to live with him in Qacha’s Nek where he worked at the material time. To assess whether the appellant has prospects of success on appeal, the primary question is whether abduction was not established in the Lower Courts. **[16]** Abduction as a criminal offence is entirely different than a civil wrong.[4] Abduction as a civil wrong is classified under wrongs to family rights. It falls in the same bracket as seduction and adultery.[5] Because abduction is a civil wrong to the person in lawful control of a female, it is immaterial that the female gave her consent. Although it connotes a positive conduct of dispossession on the part of the abductor, abduction may occur even if the man took no positive steps to remove the girl, such as when the girl leaves the house of her parents without permission to live with the man.[6] **[17]** During argument before this Court, Counsel relied on the definition of abduction in the **Penal Code** and not abduction as a civil wrong under custom in terms of which coercion is not a requirement as shown above. Based on the authorities cited above, the elements of the criminal offense of abduction cannot inform the civil claim.**** To put it differently,**** the fact that the plaintiff’s daughter voluntarily (as alleged by the defendant) left her parents to live with him does not advance his case. I am therefore satisfied that the defendant’s complaint that abduction was not established in the Courts below is inconsistent with what the Judgments reveal. **[18]** Another important aspect that emerges from the judgments of the central Court and Judicial Commissioner’s Court is that the defendant’s stance has always been that he paid M10,000.00 representing ten heads of cattle, six of which were compensation for abduction. **[19]** Under custom, where the girl is over sixteen and unmarried, six cattle are payable to the plaintiff for abduction.[7] It is allowable under custom that following an abduction, cattle or livestock may be privately passed between the abductor and the father or guardian of an unmarried girl, either as compensation for abduction or as dowry for the girl’s hand in marriage.[8] In the present matter, the Courts below held that the defendant adduced no evidence of the alleged payment of ten heads of cattle. **Disposal** **[20]** For reasons set out above,**** I conclude that the grounds of appeal are without merit. There is therefore no prospect of success whatsoever on appeal. The application is accordingly dismissed. **_____________** **P. BANYANE** **JUDGE** For Applicant : Advocate Lehloenya For Respondent : No appearance * * * [1] 62 of 1938 [2] Lesetla v Matsoso LAC (2000 – 2004) 444**,** Inne Rangoanana v Barclays Bank International Ltd (1985-1989) 93. Lesotho University Teachers’ and Researchers’ Union v National University of**** Lesotho LAC****(1995 – 1999) 661, Leuta v Tab Consult (pty) Ltd**** LAC (1985 – 1989) 242. [3] Letsoela v Letsoela C of A (CIV) 11 of 1983 [4] Vernon v Palmer: The Roman-Dutch and Sesotho Law of delict) 157 [5] Vernon Palmer p 25 [6] Vernon Palmer 158 [7] part II, section 11(4)(1) of the Laws of Lerotholi [8] Vernon Palmer p 159 #### __Related documents ▲ To the top >