Keketso Thulo V Khoboko Thulo (CIV/T/0640/2024) [2025] LSHC 56 (26 February 2025)

IN THE HIGH COURT OF LESOTHO

CIV/T/0640/2024

HELD AT MASERU

In the matter between:-

KEKETSO EMILY THULO                                                  APPLICANT

v

KHOBOKO STEPHEN THULO                                        RESPONDENT

Neutral citation:- Keketso Emely Thulo vs Khoboko Stephen Thulo [2024] LSHC Civ 56 (13^th March 2025)

CORAM                       :        JUSTICE M.P. RALEBESE

DATE OF HEARING   :        26 FEBRUARY 2025

JUDGMENT                :        13 MARCH 2025

SUMMARY

Family law - Husband and wife - Divorce on grounds of adultery - Unopposed action - Court raising the issue of jurisdiction mero motu - Matrimonial home in South Africa - Parties residing in South Africa - No proof that either the husband or wife domiciled in Lesotho - Businesses and ad hoc presence does not found jurisdiction in divorce matters - The plaintiff wife failing to satisfy the requirements of section 2(1) of the Matrimonial Causes Jurisdiction Act - Court declined jurisdiction. 

ANNOTATIONS

CASES

LESOTHO

Binns vs Binns 1981 (1) LLR 18

Mohammed vs Mohammed (C of A (CIV) 14 of 1985 [1986] LSCA 27 (19 April 1986)

STATUTES

Matrimonial Causes Jurisdiction Act No. 21 of 1978

BOOKS

W.C.M Maqutu. Contemporary Family Law. The Lesotho Position. 2^nd Edition, National University of Lesotho Publishing House.

JUDGMENT

          Introduction and Background

1. This is an uncontested application by the wife for a decree of divorce against her husband on the grounds of his alleged adultery. Counsel for the applicant appeared before court at the uncontested divorce motion on the 10^th February 2025 to move for judgment by default. The court mero motu raised the issue of its jurisdiction and requested counsel to prepare submissions on the point, which he duly did.

2. The brief facts and allegations in the applicant’s originating application that prompted this court to raise the issue of jurisdiction are the following :-

1.  The parties married by civil rites and in community of property at Maseru on 19^th November 1993 and the marriage still subsists;

2. The applicant is an adult Mosotho female of Naleli in Maseru;

3. The respondent is an adult Mosotho male of Naleli Maseru;

4. The court has jurisdiction because the marriage of the parties was concluded within its jurisdiction;

5. The parties' matrimonial home is at Ladybrand, Free State, South Africa;

6. The parties run multiple businesses in Lesotho and South Africa and spend their time interchangeably between these countries; and

7. The respondent currently resides in Ladybrand while the applicant resides in Ficksburg.

     Applicant's submissions

3. Counsel for the applicant submitted that this court has the jurisdiction in as much as: the alleged adultery by the respondent occurred within the jurisdiction of this court at Khubetsoana; the parties are citizens of Lesotho; their marriage was solemnized and registered in Lesotho; the parties have amassed a lot of property in Lesotho; and the respondent is always in Lesotho.

     The issue

4. The issue for determination is whether this court has the jurisdiction to grant the divorce as the court of domicile of the parties or in terms of the extended jurisdiction under section 2(1) of the Matrimonial Causes Jurisdiction Act.^[1]  

The Law

5. A decree of divorce affects the status of the parties as it legally terminates their marital status and obligations as spouses. The court of the country where the parties are domiciled is the one that ordinarily has the jurisdiction to grant such a decree[2]. In terms of the common law, the country of domicile of a married couple is the country of domicile of the husband or any country that the parties mutually consider and treat as their permanent home. In the case of Lesotho, this position has been expanded by section 2(1) of the Matrimonial Causes Jurisdiction Act which gives the High Court the jurisdiction to grant a divorce even where the husband is no longer domiciled in Lesotho, provided that the wife satisfies the two requirements stipulated therein. Section 2(1) of the Matrimonial Causes Jurisdiction Act reads as follows:

                   “2(1) Without prejudice to the jurisdiction which the High Court                             otherwise has, the High Court shall have jurisdiction to entertain an                       action instituted by a wife against her husband -

(a) for divorce, restitution of conjugal rights or judicial separation                         if the wife has been ordinarily resident in Lesotho for a period                          of one year immediately prior to the date on which the                                       proceedings are instituted and if -

(i) the husband has deserted the wife and has departed from                                   Lesotho or   has been deported, and was immediately                                        prior to the desertion or deportation domiciled in                                             Lesotho; or

(ii) in an action for judicial separation, the husband is at                                        that date resident in Lesotho;

(b) who is not domiciled in Lesotho, for divorce or restitution of                             conjugal rights if -

(i) immediately prior to the marriage the wife was domiciled                                   in Lesotho; and

(ii) she was ordinarily resident in Lesotho for the period of                                     one year immediately preceding the date on which the                                       proceedings are instituted.”

6. In terms of the foregoing provisions, a wife can institute an action for divorce against the husband who is not domiciled in Lesotho provided that the wife must satisfy two requirements. The wife must firstly, prove that she has been ordinarily resident in Lesotho for at least one year immediately preceding the date on which the proceedings were instituted; and secondly, that she had been domiciled in Lesotho immediately prior to the marriage[3]. These two requirements must be established in the instant case where the domicile of the parties is an issue.

Analysis

7. In terms of the applicant’s founding papers, the matrimonial home of the parties is in South Africa, and they are both living in South Africa, though in different towns. There are no facts whatsoever in the founding papers establishing that Lesotho is the country of domicile of either the applicant or her husband, the respondent. The applicant’s counsel submitted that Lesotho is the country of domicile of the parties, but that is a matter of fact and law that must be established from the papers. A country of domicile is the country where a person is presumed to be present at all times and which is taken to be his/her home permanently. A temporary residence does not qualify as a person’s domicile. A country of domicile is where a person has taken up residence and has a fixed intention of residing there permanently.[4] In the circumstances of the instant case, nothing points to Lesotho as being the country of domicile of the parties or at least of the husband.

8. The applicant has failed to establish that notwithstanding their matrimonial home being in Ladybrand, and her husband (the respondent) living there, Lesotho is his country of domicile. The fact that the respondent was born in Lesotho, that he has business operations in the country, and that he happens to be in the country on ad hoc basis is not sufficient to establish Lesotho as his domicile and to found jurisdiction in divorce proceedings.  The presumption ex facie the applicant’s founding papers is that the respondent’s domicile of choice is Ladybrand, South Africa. That is where he has a home which he may often leave temporarily while attending to his businesses in Lesotho.

9.  The jurisdictional challenge facing the applicant cannot even be rescued by resorting to section 2(1) of the Matrimonial Causes Jurisdiction Act because the applicant has not established any of the requirements stipulated therein. While the applicant has alleged that she is originally from Naleli in Maseru, and it can be presumed that she was domiciled in Lesotho immediately prior to the marriage, she has failed to establish that she has been ordinarily residing in Lesotho for at least one year prior to instituting the instant proceedings. All she has alleged is that she lives in Ficksburg though their matrimonial home is in Ladybrand.

Disposition

[10]  There being no proof that the parties are domiciled in Lesotho, or that the       applicant wife meets the requirements of section 2(1) of the Matrimonial          Causes Jurisdiction Act, I find that this court has no jurisdiction to sever        the marital obligations of the parties and grant a decree of divorce. The       application is thus dismissed for want of jurisdiction.               

_____________________

RALEBESE J.

JUDGE

For Applicant:  Advocate Monate

For the Respondent: No appearance