CIV/A/6/87

IN THE HIGH COURT OF LESOTHO

In the matter of

MOAHLOLI TLEBERE Appellant

v

'MA-AMENE TALAPELE Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice Sir Peter Allen on the 27th day of November, 1987

This is an appeal against the decision of the Judicial Commissioner. It is therefore the third appeal and fourth hearing of this matter. In order to avoid confusion, as the parties changed titles in each court, I shall refer to the appellant Moahloli as the plaintiff in the original case and the respondent 'Ma-Amene as the defendant

The 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 were never married

As usual 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

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had expressed an intention to marry her and a document was drawn up. This was exhibit 'A' and I will comeback to it later.

Without 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. Both the children and 'Matello used the plaintiff's name of Tlebere. They lived near Maseru.

The plaintiff became ill (the year was not stated) and it appears to have been some sort of mental illness. 'Matello left him and took the children to her parents' home at Lefulesele village in Leribe District This was probably in 1979 or 1980 She was pregnant and the fourth child was born at Lefulesele They lived there for about four or five years until 'Matello died This appears to have occurred at the beginning of 1985, but no accurate dates were recorded.

After the death of their mother the children were cared for by their grandmother, the defendant

The 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 no marriage ever in existence

In the 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 witness

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of any agreement to pay bohali. The court ordered that when a marriage agreement had been made the plaintiff was to pay four cattle to complete the marriage and so be in a position to collect his children.

The trial court ignored the fact that the woman was already dead and it seemed to think that a marriage could still take place. This confusing judgment does not indicate in whose favour judgment was given and there was no order for anyone to pay costs.

The plaintiff evidently considered that he had lost his case and he appealed out of time to Tsifalimali Central Court (CC 95/85). That court gave judgment or 28 June 1985 in which it disagreed with the decision of the trial court.

The Central Court did not consider the case very carefully and it made two serious errors. Firstly it decided that the so-called agreement (exhibit 'A') was a proper agreement which was still in existence. Secondly it referred to s.34(1) of the Laws of Lerotholi which it misquoted by leaving out an important and relevant passage regarding the necessity for agreement as to the amount of the bohali. Having 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.

The defendant then appealed to the Judicial Commissioner (JC 307/85) who delivered his judgment nine months later on 17 March 1986. The Judicial Commissioner noted that the Central Court in its judgment had omitted

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an 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 the plaintiff could not claim the children.

On these 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 the defendant.

The plaintiff having lost in two out of three courts then decided to appeal to the High Court on grounds which partly agreed with the trial court and partly with the Central Court. The plaintiff claimed that the trial court was correct in holding that the cattle debt could be paid at any time (presumably because it was supposed to represent bohali).

He claimed that the Central Court was correct in holding that a debt in cattle bohali could never be a ground for withholding the children from the plaintiff. He also claimed that the Judicial Commissioner was wrong in disregarding exhibit 'A' the alleged marriage agreement Let us first consider the Laws of Lerotholi. The relevant part reads as follows

34. (1) A marriage by Basuto custom ..... shall be

deemed to be completed when

1. there is agreement between the parties to the marriage,

2. there 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

3. there is payment of part or all of the bohali Provided that if the

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man dies before the woman goes to his parents' house the bohali shall be returned and the marriage shall be null and void.

2. If the woman dies before all the bohali is paid any balance of the bohali which remains unpaid shall none the less be payable.

I have underlined the Part in (1) (b) above which was omitted or ignored by the Central Court. It is clear from this that a marriage agreement alone is not sufficient without an agreement as to the amount of the bohali.

Exhibit 'A', the so-called marriage agreement, reads as follows " 22/1/75

This is 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 (2) 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 of the eleventh month. Witnesses (1) X - Makozonke Phephetho (2 Jonathan F. Tlebere (3 'Mamotsoanku Tlebere."

It will be seen that the writer of this vague document did not identify himself and he did not sign the

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document. 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 are generally 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 be understood

Evidence 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 agreement.

If such 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 that the balance still has to be paid after her death However, that only applies after a proper and lawful marriage agreement, including the amount of the bohali, has been made This was not the case here.

Consequently the Judicial Commissioner was correct in his finding that there was no valid marriage agreement

There is one remaining point which none of the lower courts seem to have considered seriously at all

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The plaintiff put in as exhibit 'B' a letter about himself signed by Dr. Mohapeloa, the Director of Mental Health Services in Maseru. It was 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 since 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."

Thus, even if the plaintiff made an agreement in 1975 he was then suffering from a mental illness and it would no doubt have been unenforceable 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.

Finally I must refer to suggestions made in the

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various lower courts on behalf of the plaintiff that, even if a valid marriage agreement was not made earlier, the plaintiff was and is willing to make such an agree­ment now and to pay bohali. I find the idea that anyone could even contemplate making a marriage 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).

For all the above reasons this appeal cannot succeed and it is accordingly dismissed with costs to the respondent/defendant.

The finding of the Judicial Commissioner that there was no marriage agreement and that the plaintiff/appellant therefore cannot claim the four children is hereby confirmed So too is the Judicial Commissioner's award of costs to the defendant/respondent in all of the lower courts.

P A P. J ALLEN

JUDGE

27th November, 1987

Mr. Pitso for the appellant

Mr. Ramodibedi for the respondent