HIGH COURT OF LESOTHO
Application of :
by the Hon. Mr. Justice B.K. Molai on the 11th day of February 1992.
applicant herein has instituted, against the Respondent, an
application by way of a notice of motion which reads, as amended:
the Respondent be interdicted from assaulting the Applicant,
interfering with her life and in any way threatening her;
above Honourable court grant the Applicant leave to institute her
divorce proceedings before the above Honourable court and
not in the
subordinate court despite the fact that Che Local Courts would have
jurisdiction over the matter;
the Applicant be granted custody of
the minor children pending finalisation of a divorce action to be
of this application;
and/or alternative relief.
he intimated intention to oppose this application, the Respondent
never filed any answering affidavit and the matter had
to. be set
down for hearing as uncontested. Indeed, I was told in argument that
the Respondent had told the applicant that he would
only defend the
would-be action and was no longer interested in opposing the present
application which could, therefore, proceed
the court has only the applicant's founding affidavits to rely upon
for the decision in this matter.
stated, the facts disclosed by the affidavits are that in 1979, the
Respondent and the Applicant entered into a Sesotho
marriage. They have since been living together as husband and wife
until September, 1989. Of the marriage Lineo Mofoka
and Mpho Mofoka
were born on 11th September, 1978 and 27th July, 1983, respectively.
September, 1989, the applicant left the respondent and returned to
her maiden home because of the assault and/or illtreatment
latter was perpetrating upon her. She later left the maiden home and
went to live in a rented house.
the Respondent went to the rented house and threatened to assault the
applicant unless she returned to the matrimonial
home or stayed at
her maiden home. The applicant believed that the Respondent was
capable of carrying out his threats. She, therefore,
returned to her
maiden home where she is presently staying.
to Applicant, when she left the matrimonial home, the minor children
of the marriage remained behind. The children are
now living at the
Respondent's parental home, where, she claims, are being illtreated
and not properly looked after.
avers that she intends divorcing the Respondent. Her grandparents who
had negotiated her marriage into the family of the
since passed away. The surviving relatives are neither interested nor
prepared to assist her to divorce the Respondent.
She, herself is
unable to divorce the Respondent because she has no knowledge of the
amount of bohali that was paid for her marriage,
whether it would
have to be returned or not, as well as the matter concerning custody
of the children.
averments, in the Applicant's affidavit, that she and the Respondent
have entered into a customary law marriage of which were
children who are staying in the latter'a
are not disputed. It can, therefore, be safely assumed that the
question of a valid customary law marriage between the applicant
the Respondent is common cause.
Section 34(4) of Part II of the Laws of Lerotholi provides, in part:
"34(4) Dissolution of marriage ....... may be granted by Native
Courts on the application of either party on the grounds of
desertion of the other party, or to the wife for the persistent
cruelty or neglect of her husband or other cause recognised
Basuto Law and Custom."(My underlinings)
underscored the words "on the application of either party"
in the above cited section of Part II of the Laws of
indicate my view that either the husband or the wife is free to
approach a court of law for the dissolution of a customary
marriage. Assuming the correctness of my view that, on the
unchallenged affidavit of the applicant, the validity of a customary
law marriage between herself and the Respondent is not disputed, it
seems to me that if she were contemplating to institute, against
Respondent, a divorce action before the courts of law, the applicant
is free to do so and does not, in my opinion, need the
her surviving relatives to establish the existence of the marriage.
It logically follows, therefore,
applicant's averment that her surviving relatives are neither
interested not prepared to assist her to divorce the Respondent
not a good reason for an order that she should institute an action
for the dissolution of a customary law marriage before the
instead of the Local Courts which have jurisdiction in the matter.
regards the custody of the minor children of the marriage and the
return of "bohali" cattle these are matters to be
conveniently dealt with by the court which dissolves the customary
law marriage in accordance with the provisions of Part II of
of Lerotholi of which subsection (5) of section 34 clearly provides:
"(5) A court granting dissolution of such a marriage shall make
an order regarding the retention or return of "bohali"
cattle and to whom the children, if any, shall belong, as may seem
just in accordance with the circumstances in which the dissolution
the correctness of the applicant's averment that she intends to
institute proceedings for the dissolution of her customary
marriage with the Respondent, it seems to me it will not be proper
for this court to make an order regarding the retention
or return of
"bohali" cattle and to whom the minor children of the
marriage should go as these are matters that will
inevitably be dealt
with by the local
the event of the marriage being dissolved.
however, somewhat concerned about the allegations that the Respondent
is in the habit of assaulting or threatening the applicant
violence. This must, in my opinion, be brought to a halt.
circumstances, I come to the conclusion that,on the applicant's own
affidavits, this application ought to succeed in terms
of prayer 1
but fail in terms of prayers 2 and 3. I accordingly order.
being a family dispute, I make no order as to costs.
Applicant : Miss Tau
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