IN THE HIGH COURT OF LESOTHO
In the Matter between
PASEKA 'MOTA Applicant
DAVID MASUPHA 1st Respondent
LEHLOENYA (N.O.) 2nd Respondent
Delivered by the Hon. Mr.
Justice B.K. Molai on the 5th day of September, 1983.
On 17th May, 1983, the applicant
filed with this Court a notice of motion in which he moved this Court
for an order in the following
"(a) Declaring as null and
"marriage" that was
purported to be entered into on 19th September, 1980 between my
daughter SEABANE 'MOTA and one DAVID
referred to as 1st Respondent).
(b) Declaring as null and void
thepurported act by P. Lehloenya (N.O.)(hereinafter referred
to as 2nd
Respondent) of solemnising the
marriage between SEABANE and 1st Respondent.
(c) Compelling 1st Respondent to
maintainthe minor child a boy allegedly knownas Seeiso born
in 1982 at M90 per
(d) Directing 1st Respondent to
pay thecosts of this application and thesecond Respondent
only in the eventof his opposing it."
It may be convenient to set out
the history of this matter. It would appear that applicant's
2/ Seabane 'Mota
Seabane 'Mota was born on 16th
February, 1961. In 1979 she and 1st Respondent wanted to get
married. As a minor she required applicant's
consent to enter into a
valid marriage. Her attempts to obtain applicant's consent were
unsuccessful. In an attempt to get married
by civil rites, she and
1st respondent then approached 2nd respondent who was a District
Co-ordinator in Maseru district and as such
a marriage officer.
Seabane admittedly deceived 2nd respondent that she was of age. On
the basis of that deceipt, 2nd respondent
solemnized the marriage on
19th September, 1980 and immediately there after telephoned the
applicant, who was also employed in Maseru,
confirming that he had
just solemnized the marriage between Seabane and 1st Respondent.
Applicant expressed his surprise at the
news and pointed out to 2nd
Respondent that his daughter was under age. She could not, therefore,
have entered into a valid marriage
without his written consent.
Thereupon 2nd Respondent decided to withhold the marriage certificate
from the parties to the marriage.
Faced with that predicament, on
12th November, 1980, Seabane filed with the High Court CIV/APN/212/80
in which she sought an order
couched in the following terms:
"(a) that the High Court
should exercise its powers as upper guardian of all minors to protect
me the Applicant from being abused
of a parental power by the
The High Court authorising
theApplicant to marry or compellingmy father the Respondent
to allowme to marry.
Such further or alternative
reliefas this Honourable court may findappropriate.
(d) Directing the Respondent to
of this application."
On 15th December, 1980,
applicant intimated his intention to oppose that application and
accordingly filed opposing affidavit. Then
nothing was heard of that
application until the 17th May, 1983 when Seabane filed with the
Registrar of this Court notice of withdrawal
which was duly served on
her father on the same date. On receipt of the notice of withdrawal,
Seabane's father immediately filed
the present application in which
he prayed for an order of this Court against the 1st and 2nd
Respondents as aforesaid.
In his founding affidavit, the
applicant averred,inter alia, that at the time 2nd Respondent
solemnized the purported marriage between Seabane and 1st Respondent,
the former was under age.
He, as the father and guardian of Seabane,
had not granted her consent to enter into a marriage which he
considered to be not inher interest. She could not,
therefore, have concluded a valid marriage contract. Wherefore, he
prayed this Court for an order in terms
of the prayers set out in his
notice of motion.
Only the 1st Respondent opposed
the application. He averred, in his opposing affidavit, that after he
had been in love with Seabane,
they decided to get married to each
other. However, applicant refused to receive 'bohali' from his
parents. He and Seabane were,
therefore, left with no alternative
but to get married by civil rites.
At the time of the marriage he
was 21 years of age and Seabane had assured him that she too was 21
years old. He, therefore, entered
into marriage with Seabane bona
When later on he learned that at
the time of marriage, Seabane was in fact still a minor, they decided
to institute CIV/APN/212/80
in which they were asking the High Court
as the upper guardian of all minors to grant consent for Seabane to
marry or compel applicant
to grant his consent. The application was
not pursued because soon after it had been postponed, Seabane
became of age.
Applicant had failed to exercise
his rights as a guardian to have the marriage declared null and void
between 1980 and 1981 when he
was still Seabane's guardian and he
could not do anything about it after Seabane had become of age. The
marriage was then their affair
and applicant had no locus standi
to institute these proceedings. 1st Respondent, therefore, prayed
that this application be dismissed with costs.
No replying affidavit was filed.
It is common cause that when on
19th September, 1980, 2nd Respondent solemnized the marriage between
1st Respondent and Seabane, the
latter was still a minor. Whether or
not the Applicant had refused to accept the 'Bohali' from 1st
Respondent's parents does not,
in my opinion, affect the validity of
1st Respondent's marriage with Seabane who was admittedly a minor at
the time of the marriage.
What is of material importance is that at
the time of the solemnization of the marriage, Seabane was still a
minor and the validity
of her marriage was therefore, to be governed
by the provisions of the Marriage Act No. 10 of 1974 of which
S.25(1) reads in part:
"25(1) No marriage officershall solemnize a marriage between
5/ parties of
parties of whom one or both
areminors unless the consent of theparty or parties which is
legallyrequired for the purpose of contracting the
marriage has beengranted and furnished to him inwriting: "
I have underlined the word shall
in the above quoted section to indicate that in my view, by the use
of that term, the legislature clearly intended the requirement
written consent to be mandatory for a valid marriage where either or
both of the parties to the marriage is a minor. The absence
consent renders the marriage void ab initio and not
merely voidable. It is no marriage at all right from the beginning.
As Hahlo puts it in his invaluable work, The South African
Law of Husband and Wife (14th Ed) at p. 487:
"The nullity of a void
marriage is absolute. It may be relied upon by either of the
parties, even after the death of the other,
or by any interested
third person, even after death of both of them."
As we have seen, applicant
deposed that as soon as he was notified that CIV/APN/212/80 had been
withdrawn, he filed the present application.
Indeed, the notice of
withdrawal in CIV/APN/212/80 is dated 17th May, 1980 which is the
same date as the date on which this application
was filed with the
Registrar of this Court. In Wells v. Dean Willcocks 1924 C.P.D.
89 at p. 92 Gardiner, J. is reported as having said :
"no lapse of time would
operate as a ratification. The so-called marriage
6/ is absolutely
is absolutely void, it is no
marriage at all."
On the authority of this
decision, I have grave doubts whether, even if there were delays in
instituting these proceedings, any such
delays would have the effect
of changing the status quo. If a marriage which is null and
void ab initio is no marriage at all, it seems to me
sensible to say such a marriage cannot be ratified even by any delays
in instituting court
proceedings to have it declared so. To hold the
contrary would tend to obscure the distinction between a void and
Therefore, 1st Respondent's
suggestion that because applicant did not exercise his rights to have
the marriage declared null and void
between 1980 and 1981 when
Seabane was still a minor, there was nothing he could do after she
had reached the age of majority, seems
to me untenable.
In the light of all that has
been said, it is obvious that I take the view that 1st Respondent and
Seabane were never and are not
legally married to each other and I so
declare. The significance of this declaration is merely to enable the
marriage register to
be corrected. Costs are awarded to the
Applicant. I make no order as regards the minor child's maintenance.
It requires evidence
which may be led before the magistrate courts.
JUDGE 5th September,
For Applicant : Mr. 'Mota (in
person) For Respondent: Mr. Maqutu.
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