IN THE HIGH COURT OF LESOTHO
In the Matter of :
XAVERI QHOBOSHEANE Plaintiff
'MAALALIA QHOBOSHEANE Defendant
Delivered by Hon. Mr. Justice F.X. Rooney
on the 2nd day of August, 1982.
Mr. Magutu for the Plaintiff
Mr. Moorosi for the Defendant.
On the 10th May, 1978, the plaintiff married the
defendant in the Roman Catholic Church of St. Michael's
at Boinyatso in the Maseru District. According to the
Marriage Certificate, the defendant gave her name as
Johanna Kotelo and her condition as that of a spinister
aged 20 years.
On the 26th August, 1981, the plaintiff issued
a summons against his wife seeking various forms of
relief including a decree of divorce on the grounds of
the defendant's adultery, an order that the defendant should
restore conjugal rights and failing compliance
therewith a decree of divorce and in the further alternative
an order declaring the marriage null and void. The
plaintiff's declaration contained the allegation that
unknown to him the defendant had been married by Sesotho
custom to Ts'eliso Shakhane and had lived with him for
In her plea, the defendant denied the desertion
and the existence of any previous marriage, but, she
2/ admitted that
admitted that Ts'eliso Shakhane had abducted her in
December 1976. She admitted the adultery and asked for
When the matter came up for trial on the
14th June, the defendant abandoned her plea and the
plaintiff elected to proceed on the grounds that the
marriage was a nullity.
The Court heard the evidence of the plaintiff
and Tseliso Shakhane and is satisfied that the defendant
married the latter in 1977 and that portion of the bohali
was paid. The couple lived together for 8 months. The
defendant then disappeared from her husband's home. In
1978 Tseliso learned that his wife had married the plaintiff
The plaintiff on his part stated (and I have no reason to
disbelieve him) that at the time that he entered into the
civil marriage, he was unaware that the defendant had been
previously married by custom.
The defendant is therefore a polyandrist a
condition which is not permitted either under the civil
law or Sesotho customary law. As Mofokeng J. put it in
Masupha v Masupha CIV/A/14/76 unreported) in a judgment
dated 15th February, 1977
"In Lesotho a man having validly married
according to custom is free to marry as many
wives thereafter as he chooses. The very
nature of the marriage allows him to do that.
This situation is only applicable to a man
but not to a woman. (Poulter : Family Law
and Litigation in Basotho Society, 1976 ed.
pages 209 - 210 and authorities quoted
therein.) In Sesotho custom a woman cannot
validly have two husbands. Until a
customary marriage has been dissolved, it
remains in force. Polyandry is not
recognised in Sesotho custom. (See Native
Law in South Africa, 2nd Ed. P. 125)".
Apart from the above, it is clear that the
defendant practised a fraud on the plaintiff when she
failed to disclose to him that she was a party to a
pre-existing customary marriage which still subsisted.
I accept that if the plaintiff had known of the true
position he would not have proceeded with the civil
marriage. Although e husband must take his wife as he
finds her, he is entitled to assume that she is not
married to anyone else. The defendant's position is
analogous to that of a woman who has been guilty of
antinuptuel stuprum and is pregnant as a result. The
plaintiff acted on the mistaken assumption that his wife
was single. In my view his mistake is sufficiently
fundamental to amount to an operative error qualitatis
rendering the marriage voidable at his instance.
The most unforutnate feature of the case is that
there was one child of the "marriage"namely Christopher.
The plaintiff is happy to leave his son with his mother
but, I have indicated to the attorneys of the parties
that the matter cannot be disposed of quite so easily.
This Court must be satisfied that the defendant is in a
position to provide this young boy with a home and a
future. I was concerned to learn from Ts'eliso Shakhane
that he takes the view that the child is his according to
Sesotho Law. Until such time as he asserts his claim
it cannot be entertained. However, I have no assurance
that the defendant will be in a position to resist an
action by her real husband if the child remains in her
custody. Whatever order is made in regard to the
custody of Christopher, it must take into account the best
interests of the boy and I am prepared to consider further
evidence on this issue at a later date.
2nd August, 1982.
Attorney for the Plaintiff : Mr. Manutu,
Attorney for the Defendant : Legal Aid Counsel.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law