B P Lesotho (Pty) Ltd v Mabathoana and Others (CIV/T/39/03)

Case No: 
CIV/T/39/03
Media Neutral Citation: 
[2004] LSHC 141
Judgment Date: 
15 November, 2004

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CIV/T/39/03

IN THE HIGH COURT OF LESOTHO


In the matter between:

B. P. LESOTHO (PTY) LTD PLAINTIFF

VERSUS

LUCY 'MABATHOANA 1st DEFENDANT

MAKABELO MAKHAKHE 2nd DEFENDANT

THOLOANA MOTS'OENE 3rd DEFENDANT


JUDGMENT


Delivered by the Hon. Mr. Justice G. N. Mofolo On the 15th day of November, 2004


Plaintiffs issued Provisional sentence summons against defendants for a sum M485, 292.39 (claim A) and M 241,479.42 (claim B) together with interest in the sum of 18.5% per cent per annum from 11 May, 2001 to date of payment.


On 25 April, 2001 first, second and third defendants entered into an agreement with plaintiff in terms of which they became jointly and severally liable with Thabure (Pty) Limited for the debts owed by Thabure (Pty) Limited to plaintiff. On the 12th August, 2002 the plaintiff obtained


Provisional Sentence against Thabure (Pty) Ltd on the basis of cheques "A" and "B" and a Warrant of Execution was issued thereafter which yielded a null bona return of service.


Defendants were then called upon to appear before court personally or by a practitioner as the matter may be heard to admit or deny their liability for the claim; the summons also stated in the event of defendants failure to appear provisional sentence may be granted against them for payment of the amounts, costs and interest thereof.


When defendants received the summons they entered an appearance to defend. In their opposing Affidavit defendants took points in limine namely.


  1. The summons do not comply with Rule 18(7) of the High Court Rules, 1980.


  1. The defendants have not renounced the benefit of Senatus Consultum Velleianum, In his address to me Mr, Matooane has submitted the security officer


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Thabure (Pty) Ltd. by defendants in not denied nor is Provisional Sentence based on this denied. Further, point (a) taken in limine was not going to be pursued anymore thus leaving the court with point (b) to be decided;


He says under Roman law a woman was given protection for acting as surety and that to act as surety she had to renounce benefits as is stated by Gibson in his Prinicples of South African Law of pp. 473-425 and that unless benefits are renounced she cannot act as surety. Mr. Matooane says while in South Africa the requirement was abolished by legislation it was not so abolished in Lesotho where it remains in force.


Mr. Loubser for defendants has said this is an old, out-moded Roman principle no longer applicable in modern times and he has referred to Hiemstra's Legal Dictionary 2nd Ed. at p.281. He says it is not only statute that amends the common law for courts can also amend it afterall modern mercantile transactions require new approach. He further says women have been emancipated and there is no need to distinguish between rights of men and woman particularly in view of the fact that the principle is outdated.


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According to Mr. Loubser. the principle as to women acting as sureties has fallen into disuse, is obsolete and has atrophied. I have wondered if he is right because the principle was abolished by legislation in France in 1606, in Germany in 1901, in Ceylon in 1924, in Zimbabwe in 1959 and in South Africa as late as 1971 by the Suretyship Amendment Act of 1971 bringing to an end the long history of the Senatusconsultum Villeianum andAuthentica si qua mulier in Roman and Roman-Dutch law to an end.


It has been Mr. Matooane's submissions that since the principle was brought to an end by legislation, now that no such legislation has invalidated the principle in Lesotho, the principle continues to exist. As I have indicated above, I am not convinced that the principle has fallen away or atrophied by disuse or obsolescence but rather that, as Mr. Loubser has correctly submitted, it is not only by legislation that the principle can be brought to an end but also by judgment of courts of law. Thus in Higgs vs. Grant, 1950 (2) SA 29 (D. & C.L.D.) a question arose whether a woman trader was covered by the principle. Before I deal with the judgment in Higg's case above, perhaps I had better consider whether evidence before me shows that the defendants are businesswomen. I hold a strong view that to reach such a


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conclusion I am not to read in between lines or draw an inference from the circumstances. There has to be solid evidence that defendants are business­women.


In the Provisional Sentence Summons defendants are referred to as "a major female Lesotho citizen whose full and further particulars are to the plaintiff unknown —"Paragraph 1.6 of the Summons is to the effect:-


"On the 25th April, 2001. first, second and third defendants entered into an agreement with plaintiff in terms of which they became jointly and severally liable with Thabure (Pty) Limited for debts owed by Thabure (Pty) Limited to plaintiff. A copy of the agreement is annexed hereto, marked "C".



Nowhere is there an allegation that defendants are businesswomen. That defendants are businesswomen would help the court in deciding the point of law taken in view of the fact that in Higg's case above it would seem the defendant, a widow, had passed a bond over her private property to secure a loan made to her son to invest the amount of loan in a business in which she and her son were partners. Held, as the transaction was for her benefit, that the defendant could not rely upon the defence provided by Senatus Consultant Velleianum. From this is would appear a woman trader is not covered by the senatus consultum where she has given surety in respect of business in which she has an interest and derives benefit from it.


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Was there proof that defendants are businesswomen, seems to me implications of Higg's case above would apply to them. Unfortunately in this case not only is there no proof that defendants are businesswomen, I have also not been informed of the relationship between Thabure (Pty) Limited and defendants in the sense of whether defendants have an interest in Thabure and derive benefit from it. As I have intimated above, I have no reason to draw inferences in circumstances in which there is and there could be available evidence.


Having regard to papers before me, I cannot but regard defendants as having ordinarily given Thabure (Pty) Ltd. surety.


As to the principle senatus consultum valleianum and its implication to women, I am attracted by Forsyth and Wille's exposition. According to Forsyth in his Caney's the Law of Suretyship in South Africa - 4th Ed. at pp. 22-23, from the time of the Roman Empire until relatively recently women enjoyed a remarkable degree of protection from the norman consequences of undertaking surety obligations. Thus they were prohibited from interceding in respect of a debt of another person by the Senatusconsultum Villeianum as long ago as AD 46; not only this Justinian


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in AD 556 enacted the Authentica si qua mulier prohibiting women from standing surety for their husbands. Both enactments were received into Roman-Dutch law (V 16.1.3, 12; Huber 3.27.5 and subsequently formed part of South African law by case law (Oak v. Lumsden (1884) 3 SC 144;Whitnull v Goldschmidt (1884) 3 SC 314; Mahadi v. De Kock and Hyde (1883) IHCG 344; Maasdorp v. Graaff-Reinet Board of Executors (1909) 3 Buch AC 482; Standard Building Society v. Kellerman, 1930 TPD 796; in so far as Lesotho is concerned, it is to be recalled that like South Africa, Roman-Dutch Law is our common law.


It would appear according to Forsyth above senatusconsultum applied to all women and not only to suretyship but to all forms of intercession loans to women for the benefit or in the interests of others and other forms of intercession being hit by the senatusconsultum. Other examples of intercessions contrary to senatus consultum bring a woman not being a debtor, allowing herself to be substituted as such by delegation or as co-principal debtor or pledging credit or pledging her res for the debt of another; (as in the case of Higgs vs. Grant above) or by giving authority to a person to intercede on behalf of another.


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The statute was passed, it may be premised, on the belief prevalent in most societies of the time that women were the weaker sex requiring protection. According to Forsyth, women did not enjoy the protection of the benefits in all circumstances but where this happened the benefits could be and were frequently renounced by women when acting as sureties.


According to Forsyth (p.23) as I have already shown above, women's suretyship benefits were abolished in France in 1606, in parts of Germany in 1901, in Ceylon 1924, Zimbabwe in 1959 and in South Africa as recently as 1971.


Wille in his Principles of South African Law - 8th Ed. says Holland was astonishing broad and liberal as to position occupied by women though it did not place men and women on the same pedestal of equality and went out of its way to protect women as weaker vessels and their capacity in earlier times was generally more inferior to that of men. Women being excluded from holding public office or professional qualifications or to practice these having been, in recent years, swept away by legislation and the disability in respect of suretyship contracts contained in Roman statutes namely the Senatusconsultum Velleianum and the authentica si qua mulier


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biting the dust by legislation as recently as 1971 by Suretyship Amendment Act 57 of 1971 as shown above.


Maqutu in his Contemporary Family Law of Lesotho though not referring to Senatusconsultum Velleianum as such but to frustration of women as public traders and professionals has interestingly quoted from the unreported case of Khuele v Bedco (CIV/APN/105/86) where Sir Peter Allen (as he then was) was aghast with the position of women in Lesotho observing:


"I confess that while listening to the argument on this point I could not help wondering if this case was indeed 1987 or if we have perhaps slipped back in time a few hundred years. I thought it was now universally accepted, except perhaps in a few Islamic States, that all persons male or female had an equal right to direct access to the courts provided they were adult and sane. After all here in Lesotho there are married women magistrates and advocates who are apparently regarded as being capable of handling or deciding other people's cases by themselves as a party in a case. To me this is both illogical and anachronistic, particularly in cases of the present sort."


Sir Peter Allen was, of course, motivated by modern trends oblivious of the fact that some disabilities could only be removed by statute as is the case in the present inquiry. Had there been sufficient evidence that defendants have an interest in Thabure (Pty) Ltd. and derive benefit from it, like in Higg's v. Grant before it I would have had not hesitation but to find that the principle Senatusconsultum Velleianum is not applicable to women public traders. As things stand now, the Court's hands are tied and for the present it would


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seem much as the principle came by legislation, it can only be abolished by legislation as has happened in countries practicing Roman-Dutch law as we do.


In the result the point taken in limine succeeds with costs.


G.N.MOFOLO

JUDGE


For the Plaintiff: Mr. Loubser

For the Defendant: Mr. Matooane


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