HIGH COURT OF LESOTHO
Application of :
MARY GREENOCK Respondent
by the Hon. Acting Mr. Justice D.S. Levy on the 3rd day of May, 1985.
an application for leave to appeal brought by an unsuccessful
plaintiff for a Restitution Order in this Court which was
for want of jurisdiction.
that emerged at the hearing are that the present applicant, whom I
shall refer to as the plaintiff, was domiciled in South
Africa at all
material times. The desertion of which he complains took place in
South Africa and there would seem to be every reason
the only competent court capable of exercising jurisdiction in the
divorce action would be a South African Court
even though the
marriage took place in Lesotho.
Mr. Mphutlane for plaintiff has urged upon me in this application for
leave to appeal the fact that there was or presently
is in existence,
a statute in the Republic of South Africa which makes illegal
marriages entered into between persons who are not
of the same race.
present case, the plaintiff is a European while the defendant is a
Mosotho. The prohibition of Section 1(2) of Mixed Marriages
Act 55 of
1949 of the Republic of South Africa renders void a marriage between
a white person and a non- white person where the
husband is domiciled
in the Republic of South Africa at the time
marriage and whether the marriage is solemnised inside or outside the
Republic. (See ex parte Cathrall 19 65(2) S.A. 505(N)
that the marriage would be recognised as valid by the lex loci
celebrationis is of no avail to the parties since the essential
validity of the marriage falls to be determined by the lex domicilii
that is, by the law of the place where the husband is domiciled
the time of the marriage.
quandary in which the plaintiff finds himself is that even if he were
to sue for and obtain a decree of nullity in the Republic
Africa where he is now domiciled, he would be faced with the
situation that such a decree may well not be recognized by
Court of any other country in the world on the ground that the decree
of nullity was granted upon the basis of a statute
most likely be regarded as repugnant to public policy in all those
countries other than in the Republic of South Africa.
law would tend to uphold the validity of a marriage celebrated
between whites and non-whites and notwithstanding any such
prohibition of the lex domicilii' "since our public policy
demands the full freedom of contract and the right of man
bind themselves in respect of all legitimate matters" per innes
C.J. in Law Union and Rock Insurance Co. Ltd vs. Carmichael's
1917 AD 598.
more abhorrent to our system of law must such a prohibition be which
invalidates a marriage on the grounds only of race
or colour and so
is more surely contrary to the public policy of this country.
Plaintiff sues for a decree of divorce on the grounds of malicious
desertion in the court of his domicile, that is, in a
Court, he will no doubt find himself met with a refusal by that Court
to grant an order for divorce which would be
recognition of an invalid marriage according to South African law.
court which heard this action by the plaintiff did not consider that
aspect and I have been referred to authorities such
as Forsythe on
Private International Law which suggests that in such circumstances,
the court of the place where the marriage
was celebrated, that
is, the forum loci celebrationis would have jurisdiction.
Cathrall's case at p. 510, the learned judge left open the question
whether the forum loci celebrationis might in the circumstances
case such as the present assume jurisdiction.
I am constrained to find that, despite the sympathy one must feel for
the Plaintiff, the rule of law is that only the court
of domicile at
the time of the institution of these proceedings has jurisdiction to
entertain an action for a decree of divorce.
It is also clear law
that the courts of the place where the marriage was celebrated or of
the original domicile of the wife have
no jurisdiction to grant a
decree of divorce where the husband is domiciled elsewhere. (See
Gilbert v. Gilbert 1901 N.L.R. 201
and Mesurier v. Mesurier (1895)
A.C. 517) But the situation in South Africa now is that the
Prohibition of Mixed Marriages Act
is about to be repealed. such
repeal will be of retrospective effect so that all marriages
previously celebrated contrary to that
Statute will be regarded as
valid in South African courts.
case, there will then be no obstacle to plaintiff bringing an action
for divorce in the Republic of South Africa where he
is domiciled on
the grounds that the marriage has irretrievably broken down and in
that way plaintiff will achieve a situation
where a decree of divorce
might well be granted by a court in the country of his present
domicile and which would, therefore,
satisfied that I must follow the general principle of our common law
that only the courts of Plaintiff's domicile have jurisdiction
find accordingly that there is no reasonable prospect of success on
appeal. The application is dismissed.
Applicant : Mr. S. Mphutlane,
Respondent : No appearance.
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