CIV/T/293/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

AGNES
MAMOQEKELE NKABANE

VS

MONGOLI
NKABANE

JUDGMENT

Delivered
by the Honourable Mr. Justice J,L. Kheola on the 13th day of March,
1987.

The
plaintiff sues the defendant and seeks an order for restitution of
conjugal rights, failing compliance therewith, a decree of
divorce on
the ground of defendant's malicious desertion and forfeiture by the
defendant of benefits arising out of the marriage
in community of
property and costs of suit. In the alternative the plaintiff seeks a
decree of divorce on the ground of defendant's
adultery.

In her
declaration the plaintiff avers that she and the defendant were
married to each other by civil marriage in community of property
on
the 8th August, 1970 at the District Commissioner's office in Maseru.
There are no children of the said marriage. She avers
that the
defendant with determined and settled intention to terminate their
said marriage, has committed the following wrongful
and unlawful
acts:-

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he
continually assaults her; he uses abusive language against plaintiff;
he does not support or maintain plaintiff and on the 1st
May, 1983
defendant drove plaintiff out of the matrimonial home and said that
he no longer loved her. She further states that the
defendant is now
living in adultery with one Polo at the parties' matrimonial home.

The
defendant pleads that at the time he purported to enter into a civil
marriage with the plaintiff he was already married to one
Polo by
customary rites. He contends that his purported marriage to the
plaintiff was null and void ab initio and asks the Court
to dismiss
plaintiff's action with costs on the ground that at the time parties
purported to enter into a civil marriage they both
knew that the
defendant was still legally married to Polo by customary marriage.

It seems
to me that the crucial points to be decided by the Court are:-

1. At
   the time the parties purported to enter into a civil marriage did
   any customary law marriage exist between the defendant and
   Polo? and
   if so,

   
   

2. was
   the plaintiff aware of the existence of such customary law marriage
   when she married the defendant?

   
   

It is
common cause that the defendant is now living with Polo at the
matrimonial home of the plaintiff and the defendant. It is
also
common cause that the houses on the site were built by the plaintiff
and the defendant and that Polo never contributed anything
towards
the costs of building the houses on the parties' site.

3

The
plaintiff testified that she entered into a civil marriage with the
defendant on the 8th August, 1970. She handed in a copy
of a marriage
certificate as an exhibit (Ex. A) which confirms her story. Prior to
their marriage plaintiff lived at Lekhaloaneng
where she rented a
house. The defendant lived at Toloane's at his parents' place. After
the marriage the defendant joined her at
Lekhaloaneng and she
continued to pay rent because the defendant was not working at that
time. Eventually they got a site of their
own which was registered in
the name of the defendant. She provided funds for the building of a
three-roomed residential house
and six rooms rented by tenants at the
rate of M20-00 per month each.

According
to the plaintiff the trouble started in 1975 when for the first time,
the defendant told her that before they entered
into a civil marriage
he had abducted a girl named Polo and had taken her to his parents'
home. Six head of cattle were paid to
the parents of Polo as
"bohali". The defendant told her that after the abduction
he discovered that Polo had already
been impregnated by another man.
He expelled her. From 1975 the defendant started to assault her and
telling her that he no longer
loved her and wanted to live with Polo.
The plaintiff deposes the before she married the defendant she did
not know that he was
married to Polo and that such marriage still
subsisted. The defendant had told her that he was a bachelor and told
the marriage
officer that he was a bachelor She denied that before
she married the defendant she was married to one-Pitso Molotsi and
that such
marriage still subsists.

In 1978
the defendant wrote a certificate in which he stated that he was
lawfully married to the plaintiff and that when he died
no member of
Nkabane family should claim any right to the property which he
acquired through the assistance of the plaintiff. The
certificate is

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Exhibit
D. It was stamped with the chief's date stamp on 25th March, 1978. In
this certificate the defendant stated that none of
the members of
Nkabane family contributed anything when he made improvements on his
site.

The
evidence of. Celestina Tibane was to the effect that she was a
witness at the solemnization of the marriage between the parties
and
that the defendant described himself as a bachelor. She had not known
the defendant before the solemnization of the marriage.

The
defendant testified that when he entered into a civil marriage with
the plaintiff he deceived the marriage officer that he was
a bachelor
because he had been advised that if he disclosed that he was already
married to another woman by customary rites he
would not have been
allowed to marry the plaintiff. The plaintiff knew that he was
already married to one Polo when they purported
to enter into a civil
marriage. He married Polo in 1960 and they have one son who is well
known by the plaintiff. The defendant
admits that he wrote Exhibit D
because he knew that when he died members of his family would attempt
to deprive the plaintiff of
the possession of the parties' immovable
property on the ground that Polo was his only wife.

The
defendant further deposed that his parents paid ten Mead of cattle as
"bohali" for his marriage to Polo.

The first
witness called by the defendant was his mother, 'Mamoholi Nkabane.
She testified that she noticed that the plaintiff and
the defendant
were living as man and wife at Qoaling. She was, however. not aware
that they had entered into a valid marriage..
She knows that the
defendant was legally married to Polo by customary law and that ten
head of cattle were paid for "bohali".
At the time the
defendant and

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plaintiff
were living at Qoaling Polo was living at her place at Toloane s.

The
second witness was Morunyane Morunyane who claims to be the brother
of Polo. He confirmed that ten head of cattle were paid
for the
"bohali" of Polo Mojela Nkabane is the cousin of the
defendant. He also knows that ten head of cattle were paid
for the
"bohali" of Polo.

I have
come to the conclusion that there is abundant evidence that the
defendant entered into a valid customary law marriage with
Polo and
that at the time the parties before Court purported to enter a civil
marriage the customary law marriage between the defendant
and Polo
still subsisted. Mr. Tsotsi counsel for the plaintiff submitted that
as there was no documentary evidence to show that
the parents of Polo
received ten head of cattle as "bohali" for their daughter,
the Court should not readily accept oral
evidence from witnesses most
of whom were minors at the relevant time. I do agree that it is
rather strange that both documents
are not available. The practice is
that when a Sesotho Customary law marriage is entered into two
similar documents are written
showing names of the parents of the
bride and the bridegroom,names of the witnesses and the number of
cattle paid for "bohali".
The defendant has led evidence of
both families to show why such documents are not available. One was
destroyed by fire when the
house in which it was kept was
accidentally set on fire. The other one cannot be traced. I accept
these explanations regarding
the disappearance of the documents.

The next
question is whether the plaintiff knew that the defendant was a
married man at the relevant time. According to the evidence
of the

6

plaintiff
and her witness the defendant said that he was a bachelor. It was
only in 1975 when he first told the plaintiff that he
abducted one
Polo in 1960 but expelled her when he discovered that she was already
pregnant by another man. He paid six head of
cattle for abduction and
never entered into any marriage with her. There is practically no
evidence that the plaintiff was aware
that at the relevant time the
defendant was already married to Polo.

The
probabilities are in favour of the plaintiff that she did not know of
the impediment . The mother said that she had nothing
to do with the
plaintiff and never gave her a name as is usually done according to
custom. Plaintiff never visited the parents
of the defendant at
Toloane's where she would have seen Polo. Polo never visited the
parties at their matrimonial home at Qoaling.
There is no evidence
that the defendant openly took the parties' funds and maintained Polo
and her son. In Exhibit D the defendant
made no mention of Polo and
her son. When they entered into the civil marriage the defendant was
only 28 years old. He was a fairly
young man who could not be
suspected of having contracted any previous marriage.

For the
reasons stated above I formed the opinion that at the time the
parties purported to enter into a civil marriage the defendant's

marriage with Polo was still in sibsistence but that the plaintiff
did not know.

Now the
question is whether a person married according to Sesotho Law and
Custom can during its subsistence enter into a valid civil
marriage.
It was conclusively decided by the Court of Appeal in the case of
Makata v. Makata, C. of A. (CIV) No.8 of 1982 (unreported)
that such
civil marriage is null and void ab initio and that it is prohibited
by section 29 (1) of the Marriage Act. No. 10 of
1974 which reads as
follows:-

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"No person may marry who has previously been married to any
other person still living unless such previous marriage has been

dissoved or annulled by the sentence of a competent court of law".

The civil
marriage betweent the parties in the instant case was null and void
ab initio. The general rule that a marriage which
is null and void ab
initio has none of the consequences of a valid marriage is subject to
the exception in the case of a putative
marriage. The requirements of
a putative marriage are that, first, the marriage must have been
solemnized with the prescribed formalities;
secondly, that both or at
least one of the spouses had contracted the marriage in good faith (
see The South African Law of Husband
and Wife. 4th edition by H.R.
Hahlo at pages 493-4). In the instant case only one spouse, the
plaintiff contracted the marriage
in good faith and was unaware of
the impediment to their marriage. Regarding the property accumulated
by the parties during the
subsistence of a putative marriage, the law
is that if only one of the parties was bona fide, community of
property takes place
if this is to the advantage of the innocent
party, but not otherwise. (Mograbi v. Mograbi, 1921 A.D. 274 at p.
275.)

There is
evidence that at the time improvements were made on the parties' site
at Qoaling the defendant was not working and contributed
little or
nothing towards the building of the houses on the site. The plaintiff
has prayed that the defendant forfeit all benefits
arising out of the
marriage- I find that this prayer is justified.

The order
of the Court is that the "marriage" between the plaintiff
and the defendant is declared null and void ab initio.
However,
because the plaintiff contracted the marriage in good faith and was
entirely unaware of the impediment,the marriage shall
be regarded

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as a
putative marriage for purposes of property.

The
defendant shall forfeit all benefits arising out of the "marriage"
and shall pay costs of suit.

J.L.
KHEOLA

JUDGE.

26th May.
1987.

For
Plaintiff - Mr. W.M. Tsotsi

For
Defendant - Mr. Moorosi