Sekali v Cassim (CIV/APN/184/03 )

Case No: 
CIV/APN/184/03
Media Neutral Citation: 
[2003] LSHC 74
Judgment Date: 
3 July, 2003

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CIV/APN/184/03

IN THE HIGH COURT OF LESOTHO


In the matter between:

LERATO SEKALI APPLICANT

And

MOTLATSI MUHAMMED CASSIM RESPONDENT

JUDGMENT


Delivered by the Honourable Mr Acting Justice T. Nomngcongo on the 3rd of July 2003


In her notice of motion the applicant seeks orders in the following terms:


  1. Rule nisi (sic) be issued calling the Respondent to show cause why the following prayers shall not be made absolute:


    1. Dispensing with the normal modes of service due to urgency of this application.


    1. Ordering the Respondent to release the minor child Tlhokomelo Anver Sekali to the Deputy Sheriff.


    1. Ordering the respondent to return the child to her mother Lerato Sekading at Ficksburg.


    1. Ordering the Respondent to pay the costs of this application.


    1. Further and/or alternative relief.


  1. That the prayer 1(a) and (b) should operated with immediate effect.


This was brought as an urgent application in terms of Rule 8, 22(a). Rule 22(c)


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provides that in this event such application must (my emphasis) be accompanied by a certificate of urgency by an advocate or an attorney setting out that he has considered the application and he bona fide believes that it is in fact urgent. The reason for such a requirement is obvious: The court should be able to rely on the word of its officers and not have to ferret first and then determine after the fact whether or not there was any urgency in the first place. The rule places so much trust on legal practitioners that in this regard it reposes a duty upon them which in my view properly belongs to the court. They cannot therefore ignore it or treat it lightly. I say this because in this particular case, no certificate as required was filed with the notice of motion.


I however, proceeded to hear the matter, mero motu condoning such non-compliance with the rules. I have discretion to do so under Rule 59 of the Rules of Court. In doing so, I should not be seen to be condoning this dereliction of duty by an attorney of this court. I frown upon it. In exercising my discretion to condone I was guided only by interests of a minor who is the subject of these proceedings as its upper guardian. His custody is being disputed. It would also appear that he has been snatched from one parent to the other. In the circumstances, it is obviously urgent to determine exactly where the rights of custodianship lie.


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I proceeded to deal with application. It is opposed. I must at once observe that applicant in prayer 1(b) asks for a remarkable order. She seeks the court to order Respondent to release the child Tlhokomelo to the Deputy Sheriff and at prayer 2 that such order operate with immediate effect. I assume that, that would be pending the determination of the main prayer, the return of such child to its mother the applicant. This would mean delivering an innocent child to a total stranger whose disposition to receive him or indeed minister to him is not known. The effect such an arrangement would have on the child itself is imponderable. The court would never grant such an order.


The applicant describes herself as a spinster. This is denied by the respondent who declares that he is married to her by Moslem rites. The applicant herself in the founding affidavits admits that she underwent a marriage ceremony in a Moslem Church but adds that it is not a valid marriage in Lesotho. This is, in fact the crux of Mr. Matooane's argument. Not even having filed a replying affidavit he stands or falls by it. If he is successful in this argument it would follow that the child is illegitimate and as such custody would unquestionably be that of the mother, the applicant.


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According to The Concise Oxford Dictionary the word "Moslem" is a variation of the word "Muslim" meaning a follower of the Islamic Religion. The word Mohammedan is sometimes used instead. It is said however that Muslims themselves do not use it, often regarding it as offensive. It would appear to be a matter of regret therefore that the very word has found its way into our statute books. Section 7 of the Marriage Act NO. 10 of 1974 provides:


"7 (1) The Minister and any officer in the public service authorized thereto by him may designate any minister of religion to be, so long as he is such minister, a marriage officer for purpose of solemnizing marriages according to Christian, Jewish or Mohammedan rites or rites of any Indian religion" (My underlining).


It will readily be seen therefore that a marriage by Mohammedan (substitute Moslem) rites provided it is solemnized by a duly designated marriage officer and complies with the law in other respects, is recognized by law. Thus in as much as we commonly talk of Christian marriages, it is not correct to make a blanket statement that Moslem marriages are not valid in Lesotho. The applicant herein merely avers: "I admit we did enter into marriage ceremony (sic) in the Moslem Church which is not a valid marriage in Lesotho (sic)" (par. 5 of the founding affidavit). She then concludes at par. 6 that she "never entered into any valid marriage with Respondent either civilly or customary (sic)." Except this non sequitur that smacks of religious prejudice, no other attack is made on the validity of the marriage, such as for instance that it was not solemnized by a designated minister of religion duly authorized


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thereto. The onus is on the applicant to establish in what respects she alleges that the marriage was not valid. It is not sufficient in this regard merely to say that this was a Moslem marriage and therefore invalid. It is important to note that there is a presumption in favour of the validity of marriage in certain circumstances. It is summed up in the words H.R. Hahlo: "The South African Law of Husband and Wife - 5th Edition" at p-88:


"Semper praesumitur pro matrimonio. Where there is evidence of a ceremony of marriage, followed by cohabitation, everything necessary for the validity of the marriage capacity- formalities and consent - is presumed. This is in accordance with the omnia praesumuntur rite esse acta rule."


In this case there was, and this is admitted by the applicant herself, a marriage ceremony, followed by no less than six years of cohabitation. It was even blessed with a child, the subject of these proceedings. In the absence of any other attack the presumption of validity must operate. This would be sufficient to determine this case. But there is yet another consideration were the marriage to be open to attack on some other grounds later, which of course the applicant has failed to do in the present case.


In this case there is not the slightest suggestion that when the parties went though the Moslem marriage rites, they did not intend going through a proper and binding marriage. In other words they got married in good faith. As evidence of that they proceeded to cohabit for almost six years begetting a child in the process. This would


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in my view constitute a putative marriage.


It was put thus in Moola v Aulsebrook N.O. 1983(1) SA 687 (N) at 693 A-B


"..........as I have already said......all that is required is that the union be contracted openly and in accordance with rituals and ceremonies not inconsistent with our law, that is to say, there must be some formal and solemn ceremony by means of which The parties give open expression to their desire to marry and by means of which they manifest their intention to marry and not simply to enter into what I might call a clandestine union." per Freedom J.


The consequence if this is that the father as the natural guardian is entitled to the custody of the child because children born of putative marriages are in no worse position than other legitimate children whose custody is by law vested in their father. See Bam v Bhabha 1947 (4) SA 798 at 809 per Schriener J.A.


The decision of this court therefore is that the application is dismissed. This being a family affair I make no order as to costs.


T. NOMNGCONGO

ACTING JUDGE

03/07/2003


For Applicant : Mr Matooane

For Respondent: Mr Lesutu


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