Thamae v Moteo (CIV/APN/159/2003 )

Case No: 
CIV/APN/159/2003
Media Neutral Citation: 
[2004] LSHC 67
Judgment Date: 
5 May, 2004

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CIV/APN/159/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:

MANTHATI THAMAE Applicant

and

RETSELISITSOE MOTEO Respondent


For the Applicant : Mr. K. Mosito

For the Respondent : Mr. K. T. Khauoe


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 5th day of May 2004


The bone of contention in this application or what is to be decided presently is mainly the validity of alleged marriage between the Respondent and the late Nthati (Deceased). She left a minor child Lerato. The Applicant the Deceased mother says that there was no marriage by Sesotho customary law or at all between the Applicant and the Deceased. This is denied by the Respondent.


This was an application for an order that Applicant be declared the legal


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guardian of the minor child Lerato. Applicant is the maternal grandmother of the child and mother of the Deceased. The Respondent is the minor child's biological father.


In addition to issues that fell to be raised was whether the Applicant had locus standi to sue and whether there was a material dispute of fact. The question of custody of the minor child falls to be decided within the broader issue of whether the Respondent would be judged to be the legal guardian of the minor child Lerato and therefor entitled to custody of the child. Once the marriage between the Deceased and Respondent is adjudged to be non-existent the two issues fall off. In particular the Applicant would be legal guardian of the minor child and possessed of locus standi


Counsel agreed with me that it was wise to first decide the crisp issue of whether there could be a valid Sesotho marriage where there has not been no payment of bohali. This is in the context where more specifically the Respondent says their parents had agreed that there should be no such payment for the marriage to be established (ho emisa lenyalo) in that the bridegroom's parents should not pay bohali. This is disputed and more specifically where the Respondent answered in his affidavit and said:


"4.3 My parents did approach the Applicant and her family about


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our proposed marriage. Applicant the mother of my late wife gave her blessing. That is, agreed with my family that the deceased and I should get married.

4.5 The Applicant when asked about the quantum of bohali categorically said she was not selling her daughter; as long as we are happy she did not need any bohali and we should live as man and wife. We did accept the same."


Naturally this is denied in paragraphs 5 and 6 of the replying affidavit. The replying affidavit is supported by that of Reverend Father Paseka Maboloka who distances himself from allegations that he was privy to a statement made by Applicant that the Respondent and Deceased were legally married. While the evidential quality of father Maboloka's alleged statement would be questioned Mr Khauoe for Respondent would argue that it is consistent with the contention that a marriage actually existed.


The above situation may to a lesser extent indicate that there is a dispute of fact. It depends whether it is a material one. There is likely be other disputes including whether the alleged agreement contained in paragraphs 4.4 and 4.5 is true. This would include whether customary rituals such as koae ceremony were even dispensed with and, whether Applicant consented to the minor child wearing mourning cloth of the Respondent's family after deceased's death; this signifying as it was suggested that she was part of the Respondent's family.


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I agreed that the issue of whether there can be a valid Sesotho customary marriage was a question of law which would be convenient to decide before dealing with other issues and separately from any other questions. According to Mr. Mosito once this question was decided in line with his submission, there would be no material dispute of fact. Or most specifically if the marriage is bad in law there would be no need to argue whether there were material disputes of fact or not. I underlined material dispute of fact.


Mr. Mosito submitted further the conclusion that there is valid marriage cannot be reached, even assuming that the parties agreed as suggested in paragraphs 4.3 and 4.4 (supra). And that such a contract is unenforceable because it is illegal, it being in contravention of section 34(1) of the Laws of Lerotholi. The section spells out the essential elements of Sesotho Customary Law. I have underlined "essential elements."

The requisites of a valid Sesotho customary marriage are set out in the said paragraph 34(1) of the Laws of Lerotholi. Those are firstly that there should be agreement of marriage between the bride and the bridegroom. Secondly, there should be an agreement of marriage between the parents or those standing in the place of parents as to the marriage and as to the amount of bohali. And finally that there should be payment of part or all of the bohali hence the Sesotho


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expression that that: "Monyala ka peli o nyala oa hae" (One who pays however little is permitted to take his bride.)


I am reminded that in Ramaisa v Mphulenyane 1977 LLR138 Cotran CJ stated an additional requirement which is that the parties must live together as man and wife. This is a good example of judicial legislation when on has regard to what section 34(1) actually says. I will later come to the remarks made by Mr. Mosito as to the status or inviolability of the section as a piece of delegated legislation.


The question of marriage under customary law has been dealt with in a number of cases. In all of them the said essentials of a Sesotho Customary Law are endorsed without reservations or dissent as those cases go.


The key question remained to be whether parents of a bride and bridegroom can agree that no bohali be paid and in other words that there be no agreement over amount of bohali and that in addition no bohali be paid. Mr. Khauoe submitted that this was a real situation albeit unusual one. In such a situation there is deemed to be a valid marriage. In support he said bohali merely reflected a symbol of bonds between the parties. A relevant question would therefore be whether there is such bond where bohali has not been paid.


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Mr. Khauoe again sought support from the author WCM Maqutu (now Hon. Judge of the High Court) in his work Contemporary Family Law in Lesotho (1999) at page 73 where the learned author says that if the bride's father agreed with the groom's father that no bohali be paid a marriage is deemed to exist. In his words the learned author says further on page 74:


"All that is required is that there should be some agreement on this aspect."


For the time being it is not even necessary to address the question whether it was the bride's father who agreed or whether factually such agreement would be proved on the papers as they stand. I would with respect find fault and disagree with the observation of the author of Contemporary Family Law in Lesotho. This is to say that, dynamic as custom is and progressive as it may be, it has to be much more convincing particular that the custom has changed in the manner and to the extent that the learned author observes in order that a marriage can be deemed to exist by agreement even in those circumstances suggested. That customary law can be altered as modified see also the remarks of Dumbutshena AJ in K T Khauoe v Attorney General & another 1995-96, LLR-LB,470,at487that:


"Customary law by its nature is subject to modifications. It is a body of growing law which expands its perimeter as civil society develops and expands......".


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In my own observation what could have transpired where marriage was deemed to exist was the following: Where commonly parents/members of the Lesotho Evangelical Church "enlightened" (Majakane) forgo marriage by custom well knowing and intending that a Christian marriage will be contracted between their children: the bride and bridegroom. This is normally an agreement between parents. It has never in my knowledge gone to an extent that there will be neither a customary marriage nor a Christian marriage. This would obviously be absurd and untenable and, with respect, without any basis on principle I believe that no marriage regime has ever gone to the extent suggested in Mr Khauoe's submission even in the name of progress of custom. That is to suggest that a marriage will result without ceremony or publicity.


I concluded that such a marriage, as contended for, cannot eventuate. This is more so because in Sesotho Customary Law there cannot be a presumption of marriage from the fact that two people lived together. See the remarks of Peete J in Nqosa v Nqosa and Another (CIV/ APN/155/02, Peete J 27th April, 2002. This alleged marriage would therefore be accorded even lesser validity once the efficacy of the alleged agreement between Applicant and Respondent's parents is rejected.


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There was another ground advanced by Mr Mosito in support of his submissions. It was about interpretation of the Laws of Lerotholi Section 34. It could even conveniently be said to have been in response to Mr. Khauoe's submission that the section 34 of the Laws of Lerotholi does not and could not have been intended to contain a complete codification or statement of the Sesotho Customary Law. See The Family Law and Litigation in Lesotho, Sebastian Paulter. This is consistent with the observation that:


"......... most people regard the printed word as inviolate and sacrosanct......".


See Ramaisa's case and Contemporary Family Law of Lesotho at page 81. That may be so but here we are speaking of something which may have originally be of culture and morality but which has now stabilized as a matter of customary law and an institution and practice which makes our marriage law to be of unique character.


Indeed, I recognize other debate of erudition and depth from writings of eminent authors. These constitute a broad analysis of the customs and concepts such as chobeliso and bohali especially the helpful Contemporary Family Law of Lesotho at page 81-83. But there is no clear commitment to principle that there will be, in some situations a marriage according to custom where parents forgo not to negotiate a payment of bohali with full knowledge that what will


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follow is a valid marriage. Even in such a case I would conclude that there is no lawful marriage where the elements of Sesotho customary law are absent. The learned author of Family Law and Litigation in Basotho Society cites examples of where bohali - less marriages have been regarded as valid customary marriages from page 148-153 and concludes without answering the question whether an agreement excluding payment of bohali is enforceable by the Courts. The learned author then remarks about the views of the author JC Seymour in his Customary Law in Southern Africa that:


"In South Africa there are two conflicting view on how the obligation to pay lobola (the equivalent of bohali) arise Seymour holds that it arises from a contractual agreement, while others take the view that it flows automatically from the marriage agreement. Such a polarization of the obligation to pay bohali seems basically rooted in the marriage agreement but allowance is made for its exclusion by express arrangement between the parties. (My emphasis)


While I am in agreement with the first part of the learned author's view. I disagree with the exception. It is even inconsistent with the concept of Monyala-ka-peli (supra). If parties agree not to pay bohali there is no agreement about marriage in my view. All incidences of marriage that the learned author has cited as examples amounts to where the parties have agreed about a situation which the Courts would not enforce. It is because such situations constitute arrangements that are inchoate.


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There is a difference from where parents negotiate and where the girl's family who have a decisive voice in bohali negotiate and when bargaining state what amount they require. See Family Law and Litigation (supra) page 90-91. This is, to reiterate, quite different from where parents agree as it is suggested by Respondent in the present case, that there will be no bohali. There cannot therefore have been a Sesotho customary marriage in the circumstances of this case.


In the result the point taken is decided in favour of the Applicant. In the circumstances Application succeeds with costs.


T. Monapathi

Judge

5th May 2004