HIGH COURT OF LESOTHO
by the Hon. Mr. Justice Sir Peter Allen on the 27th day of November,
an appeal against the decision of the Judicial Commissioner. It is
therefore the third appeal and fourth hearing of this
order to avoid confusion, as the parties changed titles in each
court, I shall refer to the appellant Moahloli as the
the original case and the respondent 'Ma-Amene as the defendant
plaintiff Moahloli first brought this action in Lejone Local Court
(CC 10/85) in which he sued the defendant for the return
of his four
children. The mother of these children was one 'Matello who was the
daughter of the defendant. The plaintiff and 'Matello
the lower court records do not contain the relevant dates and it is
not easy to follow the sequence of events. It appears
that in January
1975 the plaintiff
expressed an intention to marry her and a document was drawn up. This
was exhibit 'A' and I will comeback to it later.
paying all of the bohali (or even any of it, the two lived together
for some years as man and wife and they had three children.
children and 'Matello used the plaintiff's name of Tlebere. They
lived near Maseru.
plaintiff became ill (the year was not stated) and it appears to have
been some sort of mental illness. 'Matello left him and
children to her parents' home at Lefulesele village in Leribe
District This was probably in 1979 or 1980 She was pregnant
fourth child was born at Lefulesele They lived there for about four
or five years until 'Matello died This appears to have
the beginning of 1985, but no accurate dates were recorded.
death of their mother the children were cared for by their
grandmother, the defendant
plaintiff did not attend the funeral but he did demand the return to
him of his children. The defendant refused and so the plaintiff
brought her to court. Her defence was that the plaintiff had no right
to the children since he never paid bohali and there was
ever in existence
Lejone Local Court the trial judgment was delivered on 6 March 1985.
The court found that the plaintiff had failed to prove
that he was
married because he had no certificate of marriage and had called no
agreement to pay bohali. The court ordered that when a marriage
agreement had been made the plaintiff was to pay four cattle
complete the marriage and so be in a position to collect his
court ignored the fact that the woman was already dead and it seemed
to think that a marriage could still take place.
judgment does not indicate in whose favour judgment was given and
there was no order for anyone to pay costs.
plaintiff evidently considered that he had lost his case and he
appealed out of time to Tsifalimali Central Court (CC 95/85).
court gave judgment or 28 June 1985 in which it disagreed with the
decision of the trial court.
Central Court did not consider the case very carefully and it made
two serious errors. Firstly it decided that the so-called
(exhibit 'A') was a proper agreement which was still in existence.
Secondly it referred to s.34(1) of the Laws of Lerotholi
misquoted by leaving out an important and relevant passage regarding
the necessity for agreement as to the amount of the
made these errors that court set aside the order of the trial court
and ordered the defendant to hand over the four
children to the
plaintiff. It awarded no costs.
defendant then appealed to the Judicial Commissioner (JC 307/85) who
delivered his judgment nine months later on 17 March 1986.
Judicial Commissioner noted that the Central Court in its judgment
important part of s.34(1), as mentioned above, and he also held that
exhibit 'A' was not a valid marriage agree-ment and therefore
plaintiff could not claim the children.
two points only the Judicial Commissioner confirmed the decision of
the trial court but he did not restore the trial court
order for the
plaintiff to pay some amount in bohali. It appears therefore that he
intended that the children should stay with
plaintiff having lost in two out of three courts then decided to
appeal to the High Court on grounds which partly agreed with
trial court and partly with the Central Court. The plaintiff claimed
that the trial court was correct in holding that the cattle
could be paid at any time (presumably because it was supposed to
claimed that the Central Court was correct in holding that a debt in
cattle bohali could never be a ground for withholding the
from the plaintiff. He also claimed that the Judicial Commissioner
was wrong in disregarding exhibit 'A' the alleged marriage
Let us first consider the Laws of Lerotholi. The relevant part reads
34. (1) A marriage by Basuto custom ..... shall be
deemed to be completed when
is agreement between the parties to the marriage,
is agreement between the parents of the parties or between those who
stand in loco parentis to the parties as to the marriage
and as to
the amount of the bohali
is payment of part or all of the bohali Provided that if the
man dies before the woman goes to his parents' house the bohali shall
be returned and the marriage shall be null and void.
the woman dies before all the bohali is paid any balance of the
bohali which remains unpaid shall none the less be payable.
underlined the Part in (1) (b) above which was omitted or ignored by
the Central Court. It is clear from this that a marriage
alone is not sufficient without an agreement as to the amount of the
'A', the so-called marriage agreement, reads as follows "
to certify that
I have given Makozonke Phephetho R50 in addition to R.110 and so the
total amounts to R160. This payment is for marriage of their
daughter. The balance is R.20 to make up the sixth (6) cow before we
proceed with the marriage. Witnesses. (1) X - Makozonke Phephetho
Jonathan F. Tlebere (3) 'Mamotsoanku Tlebere
21/4/75 I hereby show proof that I have given Makozonke Phephetho R20
balance, we are now going to show the marriage at the end
eleventh month. Witnesses (1) X - Makozonke Phephetho (2 Jonathan F.
Tlebere (3 'Mamotsoanku Tlebere."
be seen that the writer of this vague document did not identify
himself and he did not sign the
Furthermore, he did not state who was supposed to be marrying whom,
now whose daughter was involved, nor what her name
was. It was not
clear with whom the agreement was made and, in any case, that
person did not sign the document either. Witnesses
supposed to witness the signatures of the parties to an agreement. In
this case neither of the parties signed and
so the witnesses'
signatures serve no apparent purpose. In other words the document is
worthless and meaningless It cannot
be enforced even if it could
was given for the defence at the trial that the five cows paid by the
plaintiff were in fact compensation for the abduction
of 'Matello and
that they were not a part of the bohali. Exhibit 'A' itself, as far
as it can be understood, appears to indicate
that the marriage
agreement had not yet then been made, but was to be concluded in the
following November. This seems to have been
so because the amount of
bohali was not mentioned as it must be in an effective marriage
an agreement has been made and there has been part-payment of the
bohali before the wife dies it is clear from s 34(2) above
balance still has to be paid after her death However, that only
applies after a proper and lawful marriage agreement,
amount of the bohali, has been made This was not the case here.
the Judicial Commissioner was correct in his finding that there was
no valid marriage agreement
one remaining point which none of the lower courts seem to have
considered seriously at all
plaintiff put in as exhibit 'B' a letter about himself signed by Dr.
Mohapeloa, the Director of Mental Health Services in Maseru.
dated 22 February 1985 and reads as follows
" Re Moahloli Tlebere This is to certify that Moahloli Tlebere
of Motimposo has been receiving treatment for a mental disorder
1973. Mr. Tlebere suffers from a chronic mental illness and has to
date failed to respond to treatment mainly due to the
fact that he
has been irregular with his treatment. His sister Miss Motsoanku
Tlebere has recently informed us that the patient
sold the family
property at Motimposo.
In my opinion he acted whilst of unsound mind."
even if the plaintiff made an agreement in 1975 he was then suffering
from a mental illness and it would no doubt have been
However, the most significant point about his mental condition is
that the medical certificate was exhibited in the
trial court and it
was consequently available for reference by all of the lower courts
which, in fact, merely ignored it. Yet it
should be obvious that no
reasonable court could ever make an order placing four young children
into the care of someone of unsound
mind like the plaintiff. It would
be both absurd and outrageous to do so, apart from the
irresponsibility of making such an order
and thus acting to the
detriment of the children and even endangering them.
must refer to suggestions made in the
lower courts on behalf of the plaintiff that, even if a valid
marriage agreement was not made earlier, the plaintiff was
willing to make such an agreement now and to pay bohali. I find
the idea that anyone could even contemplate making
agreement, and carrying it out, with regard to payment of bohali and
for marriage arrangements with a woman who is already
dead, to be
totally unacceptable and repugnant. This is, of course, quite a
different matter from merely paying the balance of
bohali on a
marriage agreement that existed and was effective while the woman
concerned was still alive (as in s.34(2) above).
the above reasons this appeal cannot succeed and it is accordingly
dismissed with costs to the respondent/defendant.
finding of the Judicial Commissioner that there was no marriage
agreement and that the plaintiff/appellant therefore cannot
four children is hereby confirmed So too is the Judicial
Commissioner's award of costs to the defendant/respondent in
the lower courts.
P A P. J
for the appellant
Ramodibedi for the respondent
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