University of Botswana Law Journal - PULP

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182 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010 contention by the appellant was that the ultimate test contemplated by section 10 of the Chieftainship Act was not to be found under customary law but under common law. Applying the South African case of Surmon v Surmon 1926 AD 47, the court opined that the fact that the fourth respondent was born during the subsistence of the marriage between the deceased and his wife gave rise to a rebuttable presumption of legitimacy. The onus of rebutting such a presumption lied with the appellant as he was the one challenging the legitimacy. On the basis of the common law as well as customary law principles the court dismissed the appeal with costs. 2.3 CRIMINAL LAW – FRAUD The Crown v Motsotuoa Bernard Ntaote Court of Appeal Criminal Case No. 13 of 2009 (delivered on the 23 rd April 2010) (unreported) A deputy commissioner of the Lesotho Mounted Police Service (LMPS) was indicted in the High Court on two counts of fraud in that he misrepresented to the treasury, in respect of two separate international journeys. First, he had represented that he was entitled to subsistence allowance at the full daily rate. Second, that, inter alia, the minister had authorized payment to him accordingly. It was alleged that he made all these representations knowing that they were false and thereby induced the treasury officials to pay him the full rate, while he was entitled to one quarter of the rate. The court a quo returned the verdict of not guilty, hence the appeal by the Crown. On the first count the respondent had submitted claims in respect of himself and the team with which he was going to the Republic of South Africa. He subsequently discovered that he was going to be paid on a quarter rate. He then approached the financial controller and demanded payment at the full rate. He argued that he qualified for the full rate and he would bring documentation to prove that he was so qualified. He continued to press the financial controller for the full rate and the financial controller duly relented. In respect of the second count an allowance of a quarter rate had been authorized for the respondent as well as two other persons accompanying him. Again respondent was said to have gone to the treasury to persuade them to change the payment from a quarter rate into a full rate and this was done. The respondent denied any wrong doing. The court held that, the Crown failed to establish that the respondent was in no circumstance entitled to the payment in full rate on the one count. Therefore that the first misrepresentation that he was entitled to the full allowance was not proved. The Court convicted him on the other count on the ground that the respondent misrepresented to the treasury that the full amount was authorized by the
RECENT LEGAL DEVELOPMENTS – LESOTHO 183 minister. The appeal therefore succeeded in part. The matter was remitted to the High Court sentencing. 2.4 DELICT – INJURIA (INVASION OF PRIVACY) Francina Malefu Letsieloa v Ernest Lethoko Khobethi and Others Court of Appeal Civil Case No.10 of 2009 (delivered on 23 April 2010) (unreported) The appellant instituted maintenance proceedings in South Africa on behalf of her children and herself. This matter did not proceed and was removed from the roll on the basis that the appellant was a Lesotho national. The appellant then claimed damages arising out of the first respondent’s disclosure of confidential information concerning the appellant to a court in South Africa. The appellant alleged that the disclosure was given in breach of the first respondent’s oath of secrecy made in terms of regulation 106 of the Public Service Regulations of 2005 and that as a result her claim for maintenance in the said court had been removed from the roll. The appellant further alleged that first respondent sent information in the form of a letter and copies of pay-slips to an address in South Africa. The appellant contended that the consequence of the first respondent’s action damaged her personality, invaded her right to privacy, dignity and reputation. She therefore claimed damages totaling R65 000.00. The court held that the right to privacy does not depend on plaintiff’s wishes, but rather that the boundary of the individual’s right or its infringement remains an objective question. It then held that the information communicated by first respondent to the South African court and the appellant’s husband were neither offensive nor disparaging. The Court concluded that the information was factually correct and was transmitted to a judicial institution of a neighbouring state. The documents dealt with matters that were germane and, indeed, essential to the determination of the issue with which that court was concerned. Had the first respondent not disclosed those facts, the appellant would have been obliged to do so herself in the proceedings which she had instituted. The court held therefore that neither was there injuria because there was no infringement of the appellant’s rights. The appeal was therefore dismissed with costs.
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