CIV/APN/211/84

IN THE
HIGH COURT OF LESOTHO

In the
Application or

LIMPHO
ABRARAM LESOLI Applicant

V

VIVIAN
MAMOTIKOE LESOLI Respondent

Delivered
by the Hon Mr Justice J L Kheola on the 11th Mrach, l985

This is
an application for an order declaring the marriage between the
Applicant and the Respondent null and void ab initio

In his
founding affidavit the Applicant deposes that on the 3rd May, 1981 he
and Respondent married each other by civil rates at
Peka Before he
married the Respondent the Applicant ascertained from her whether she
had hof entered into a marriage with one Johannes
Letsie The
Respondent denied this In her letter to the Appli­cant she
referred to her relationship with Johannes Letsie as
just a
concubinage' In June, 1934 the Applicant searched the records at the
Law Office ana came across the marriage of Respondent
with the said
Johannes Letsie The Respondent had deceived him into believing that
she was a spinster

The
Respondent admits that on the 29th August, 1980 she went through a
marriage ceremony with Johannes Letsie but deposes that at
the time
she parported to marry him, Letsie was already married to Florina
Nkhotla by civil rites

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and such
marriage stili subsisted She goes on to say that her marriage to the
Applicant is valid because her previous marriage to
Johannes Letsie
was a nullity She annexed to her affidavit the summons in
CIV/T/346/83 in which she is applying for declaration
that the
purported marriage between herself and Johannes Letsie is null and
void That case is still pending before this Court and
no one can
predict the outcome of that case None of the parties asked me to
postpone this matter until the results of CIV/T/346/83
are known

Miss
Ramafole for the Respondent, submitted that the marriage between the
Applicant and the Respondent is valid because the previous
marriage
was null and void ab initio and it produced none of the legal
incidents of marriage She contended that each parly to a
void
marriage may enter info a valid and lawful marriage with someone
else, that no annulment by the court is required because
the decree
of nullity in respect of a void marriage is purely declara­tory
She based her submissions on certain passages in
The South African
Law Husband and Wife 4th edition by H.R Hahlo at pp 485-488 Mr
Gwentshe, for the Applicant. relied almost

exclusively
on section 29 (1) of Che Marriage Act No 10 of 1974 which provides
that'no person may marry who has previously been
married to any other
person still living unless such previous marriage has been dissolved
or annulled by the sentence of a competent
court of law' He contended
that objective facts exist which show that Respondent has a previous
marriage which has neither bean
dissolved nor annulled by the Court"

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I find
the statement that no annulment by a court of law is required to be
contrary to practice In all cases of void marriages one
of the
parties usually applies to a court of law to declare the marriage
null and void ab initio If parties do not apply to a court
of law for
a decree of nullity,who is supposed to decide definitively that a
marriage is void In my view the parties cannot decide
chat issue The
object 01 a decree of nullity is to place on record b) means of
judgment in rem the fact that the marriage entered
into by the
parties was void ab initio and gave rise to no legal consequences
(Ex_Parte Oxton 1948 (1 ) S A 1011 at p 1015 In Rignettx
v Pnichen
and another. 1955 (3) S A 338 it was held that according to South
African law the effect of decree of rullity is retroactive
to the
time of the marriage ceremony and the parties are to all intents and
purposes in the same position as if they had never
been married It
seems to we that the tact that a marriage is void or voidable can be
definitively decided by a court of law and
not by the parties In the
present case the Respon­dent was not justified to decide that her
previous marriage with Letsie was
void and that she was free to enter
into a valid marriage with the Applicant In her letter to the
Applicant she referred to her
relationship with Letsie as just a
concubinage' She was definitely incorrect to call her cohabitation
nothing but concubinage because
in concubinage the woman metely
cohabits with a man having not gone through a marriage ceremony nor
oppressed any intention to
enter into a marriage Miss Ramafole has
submitted that a void marriage is not a marriage at all and therefore
need not be annulled
in terms of section 29 (1) of the Marriage Act
No 10 of 1974 I

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disagree
In Righetti's case, supra, it was held that when a degree of nullity
is entered the parties will be in the same position
as if they had
never been married The words "as if give the impression that a
void marriage is a 'marriage' but xxxx x xxx
of nullity is made it
has a ietroactive effect and the paities a treated as if they never
married As far as third parties are concerned
it is only when it is
placed on record by means of a judgment in rem that they are likely
to become aware of the fact that the
marriage was a nullity In the
present case the Applicant (as well as the court) does not know that
the marriage between the Respondent
and Letsie is a nullity because
the evidence now before court shows that the prev_ous marriage still
subsists. I have come to the
conclusion that the words Previous
marriage' in Section 29 (1) of the Marriage Act No 10 of 1974 include
a void marriage The Respondent
made a false misrepresentation to the
Applicant when she said she was a spinster and that her relationship
with Letsie was a meie
concubinage For the reasons I have stated
above it is ordered that

1. The
   marriage between the Applicant and the Respondent is null and void
   ab inilio

   
   

2. The
   Respondent to pay the costs of this Application

   
   

JL KHEOLA

11th
March, 1985

For
Applicant Mr Gwentshe

For
Respondent Miss Ramafole