HIGH COURT OF LESOTHO
SESIU 1st Respondent
LEUTSOA 2nd Respondent
by the Honourable Mr. Justice J.L. Kheola on the 29th day of March.
applicant applied for and obtained an order ex-parte in the following
Rules of this Honourable Court relating to notice and service of
process are dispensed with and the matter is heard on an
Rule Nisi do hereby issue returnable on the 21st October, 1991 at
9.30 in forenoon, calling upon the Respondents to show cause,
attachment of the Applicant's property shall not be suspended
pending the determination of the proceedings in CIV\T\403\91;
Respondent shall not be directed to release and place in
Applicant's possession certain cattle attached and removed,
are the property of the Applicant pending the finalisation of the
proceedings in CIV\T\403\91;
of the judgment of Matsieng Local Court delivered on the 19th
March, 1991 shall not be stayed pending the determination
proceedings in CIV\T\403\91;
shall not be directed to pay costs of this application but only in
the event of opposition to the granting of the
shall not be granted such further and\or alternative relief.
prayers 2 (a) , (b) and (c) operate with immediate effect as
several extensions of the rule the matter was argued before me on the
16th February, 1993.
common cause that the son of the applicant Thabo and the daughter of
the first respondent, 'Masechaba got married to each
the 27th September, 1984. (The marriage certificate is Annexure "A"
to the founding affidavit). However, according
to 'Masechaba she got
married to her husband by Sesotho law and custom in 1983 and in 1984
chat same marriage was solemnized in
church in 1984.
opposing affidavit the first respondent alleges that there is a
contract between himself and the applicant to the effect
latter shall pay "bohali" in accordance with Sesotho law
and custom. It seems that the applicant did not pay
according to their agreement with the first respondent. The latter
instituted legal proceedings at Matsieng
Local Court claiming payment
of "bohali". The applicant has not annexed to his founding
affidavit the judgment or proceedings
of Matsieng Local Court.
However, he asks this Court to suspend that judgment on the ground
that his son has instituted divorce
proceedings in this Court on the
ground of adultery in CIV\T\403\91.
applicant admits that he did receive a summons from Matsieng Local.
He did not defend the action because he was desirous of
reconciled. At that time the first respondent's daughter had returned
home and was living there. I do not propose to determine reasons why
she returned to her maiden home because there is a serious
fact which cannot be decided on affidavits. My decision will be based
on a point of law and not on the disputed facts
which will be
resolved in the divorce case.
payment of "bohali" in a Sesotho customary marriage is a
contract between the parents of the young man and the girl
getting married. It has nothing to do with the subsequent Christian
marriage that the couple purportedly contracted. The
Christian marriage does not cancel the contract which was entered
into by the applicant and the first respondent concerning
respondent has obtained a judgment in his favour against the
applicant. The applicant did not defend that action because
very well that he was under an obligation to pay "bohali".
He has not applied for a review and the setting aside
judgment on any grounds but wants this Court to suspend it until the
divorce proceedings concerning
Christian marriage have been finalised. I am of the view that the
Sesotho customary marriage agreement concerning payment of
has nothing to do with the divorce proceedings.
son of the plaintiff succeeds in the divorce proceedings the
plaintiff will approach the 'Matsieng Local Court and claim
return of "bohali". That court will decide that issue then
and not now when its judgment has not been set aside.
cannot ignore a judgment of a competent court in matters of customary
law and suspend it even without seeing it on the
wrong ground that
divorce proceedings of a separate marriage contract have been
instituted. It must be assumed that the President
of the Matsieng
Local Court knew the essentials of a customary law marriage and
correctly decided the case. The applicant does
not say the decision
of the lower court was wrong but he is confused about the separate
existence of the two contracts.
said above that the return of "bohali" cannot be decided by
this Court in the divorce proceedings because the Christian
under which the applicant's son and the first respondent's
were married does not require the payment of "bohali".
58 of his book: Legal Dualism in Lesotho, 1979 edition, Professor
Sebastian Poulter points out that Jacobs, C.J. 'rejected
for bohali in Maqutu v. Hlapane (1971-73 L.L.R, 36) on the ground
that since it is not an essential ingredient of a civil
special agreement to pay it, ancillary to the marriage contract, must
be proved. On the facts of the case no such agreement
had ever been
reached. This was the approach which had earlier been adopted by the
Judicial Commissioner's Court in Makhele v.
Rataleli (J.C. 153\1945)
and it coincide with the position in South Africa (Ntabeni v. Mlobeli
(1949) 1.N.A.c. (S), 158 Mbonjiwa
v. Scellam), 1957 N.A.C.41 (S).
present case the second respondent alleges that there was an
agreement to pay "bohali". This agreement was reached
before the couple entered into the Christian marriage. The applicant
has not refuted this allegation but supports it by saying
he did not
defend the Matsieng Local Court case. I have also assumed that the
Court President who decided the
knew the essential ingredients of a Sesotho law and customary
marriage. I refuse to suspend the judgment without proof by
applicant that it was wrongly decided.
result the rule is discharged with costs.
Applicant - Mr. Mahlakeng
Respondent - Mr. Pitso.
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