Mphutlane v Tšepanang Burial Society (CIV/A 9 of 1997) [2002] LSCA 38 (14 February 2002)

C I V / A / 9 / 1 9 97 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: 'Mamorahanye Mphutlane Applicant and Tšepanang Burial Society Respondent Judgment Delivered on 14th day of February, 2002 by the Honourable M rs Acting Justice A. M. Hlajoane T he appeal w as noted against the judgment of the Magistrate in the Court a quo which judgment had directed the Appellant to pay back the m o n ey which had been given to her by the Respondent as compensation for the alleged death of her relative. Briefly the facts of this case are that; the Appellant is a m e m b er of the Respondent 's burial society. That on the 19th July, 1991 the Appellant m a de a report to the society claiming that she had lost a relative by the n a me of 'Matloheli Mphutlane, thereby claiming financial and material assistance from the society. T he Respondent acting on the information supplied to it by the Appellant paid out to the Appellant the s um of m o n ey and also supplied her with the required goods. After the compensation had been paid out, the Respondent carried out private investigations which revealed that in fact Appellant's dependant w as not dead as she had claimed. W h en confronted by other m e m b e rs of the society, the Appellant undertook to repay the m o n ey equivalent to the value of the compensation and other assistance given to her by the Respondent. This undertaking w as m a de before the chief and w as m a de in writing. On approaching the Court a quo for relief, the Appellant's story could not be believed moreso because even her witness D . W. 2 did not bail her out by supporting her story. Appellant w as trying to change stories on w ho 'Matloheli as her dependant alleged dead was. Appellant also claimed that she had signed the undertaking to repay the m o n ey under duress in the form of a h y m n. T he issues for determination by this Court are: (i) Whether a case has been m a de out for this Court to interfere with the trial Court's findings. (ii) Also whether the undertaking to pay m ay properly be said to have been m a de under duress. It is a well established principle of our L aw that a Court on Appeal will not lightly interfere with the findings of a trial Court w h i ch h ad the opportunity of seeing and observing the d e m e a n o ur of the witnesses. It will thus be very reluctant to upset the findings of the trial Court. Rex vs Dhlumayo and another 1948 (2) S. A. 677 T he Appellant submits that she undertook to pay the m o n ey under duress. As yet another principle of our law, is that, in order that a threat could be considered as capable of vitiating an agreement it m u st not just be an empty threat but must be 'contra bonos mores'. T he basic elements of this defence of duress are dealt with in Broodryk vs Smuts No 1942 TPD 47, as the following: 1. Actual violence or reasonable fear 2. T he fear must be caused by the threat of s o me considerable evil to the party or his family 3. It m u st be a threat of an imminent or inevitable evil 4. T he threat or intimidation m u st be 'contra bonos mores' 5. A nd the moral pressure used m u st have caused d a m a g e. In Emit Nofal vs Wijma 1970 (4) S. A. 31 the case involving provisional sentence in which the claims were founded on an acknowledgement of debt. According to the defendant, W i j m a, the signature of the relevant document had been obtained by threats, i.e threats of Criminal Prosecution, arrest and imprisonment, if defendant had not, by signing the document, acknowledged that he had misappropriated the amounts concerned. T he Court held that the alleged threats had not been proved to have been m a d e, also that the alleged could not be regarded as contra bonos moreso, the indication therefore being that he had misappropriated the funds. T he trial Court w as not convinced that the Appellant acted under duress as there w as no convincing evidence on that point. This Court also as properly advised and guided by decided cases as s h o wn above, find no just cause to depart from the trial Court's decision. As submitted by the Respondent, the Appellant m a de an undertaking w h i ch is enforceable at law quite independently of the truth or otherwise of her claim that in fact 'Matloheli Mphutlane as her dependent is indeed dead. See the case of Boloko vs Lehlaka 1974-75 LLR 268 E. I have c o me to the conclusion that this appeal lacks merit and ought to be dismissed, the appeal is therefore dismissed with costs. This appeal has been dragging since April 1997 w h en it w as first noted. T he reason for this w as explained as the difficulty in securing the typed record from the Magistrate's Court Maseru. It w as on the 2nd August 2001 w h en the Court ordered that a photocopied record be furnished within two w e e ks from that date. Fortunately it w as legible. But on the date of hearing, the Court w as given a notice of withdrawal as attorney of record by Appellant's counsel. T he n a me of the Appellant w as thus called three times outside Court and also by the loud speaker but she s h o w ed no appearance. T he Court therefore proceeded in her absence, considering the length of time it has taken to dispose of this appeal. T he Appellant s h o w ed no interest in the matter after noting the appeal. T he notice of set d o wn for this appeal has been filed by the Respondent. A . M. H L A J Q A NE A C T I NG J U D GE For Appellant: M rs K o t e lo For R e s p o n d e n t: Mr M o h au 6