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
2
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"
3
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
4
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
The marriage between the Applicant and the Respondent is null and void ab inilio
The Respondent to pay the costs of this Application
JL KHEOLA
11th March, 1985
For Applicant Mr Gwentshe
For Respondent Miss Ramafole