IN THE HIGH COURT OF LESOTHO
In the Application of :
ROY GREENOCK Applicant
MAUREEN MARY GREENOCK Respondent JUDGMENT
Delivered by the Hon. Acting Mr. Justice D.S. Levy on
the 3rd day of May, 1985.
This is an application for leave to appeal brought by an
unsuccessful plaintiff for a Restitution Order in this Court which
for want of jurisdiction.
The facts that emerged at the hearing are that the
present applicant, whom I shall refer to as the plaintiff, was
domiciled in South
Africa at all material times. The desertion of
which he complains took place in South Africa and there would seem to
be every reason
therefore why the only competent court capable of
exercising jurisdiction in the divorce action would be a South
African Court even
though the marriage took place in Lesotho.
However, Mr. Mphutlane for plaintiff has urged upon me
in this application for leave to appeal the fact that there was or
is in existence, a statute in the Republic of South Africa
which makes illegal marriages entered into between persons who are
of the same race.
In the present case, the plaintiff is a European while
the defendant is a Mosotho. The prohibition of Section 1(2) of Mixed
Marriages Act 55 of 1949 of the Republic of South Africa renders
void a marriage between a white person and a non- white person where
is domiciled in the Republic of South Africa at the time
2/ of the marriage ...
of the marriage and whether the marriage is solemnised
inside or outside the Republic. (See ex parte Cathrall 19 65(2) S.A.
The fact that the marriage would be recognised as valid
by the lex loci celebrationis is of no
avail to the parties since the essential validity of the marriage
falls to be determined by the lex domicilii that
is, by the law of the place where the husband is domiciled at the
time of the marriage.
the quandary in which the plaintiff finds himself is
that even if he were to sue for and obtain a decree of nullity in the
of South Africa where he is now domiciled, he would be faced
with the situation that such a decree may well not be recognized by
any other Court of any other country in the world on the ground that
the decree of nullity was granted upon the basis of a statute
which would most likely be regarded as repugnant to public policy in
all those countries other than in the Republic of South Africa.
Lesotho law would tend to uphold the validity of a
marriage celebrated between whites and non-whites and notwithstanding
prohibition of the lex domicilii' "since
our public policy demands the full freedom of contract and the
right of man to bind themselves in respect of all
per innes C.J. in Law Union and Rock Insurance Co.
Ltd vs. Carmichael's Exor 1917 AD 598.
How much more abhorrent to our system of law must such a
prohibition be which invalidates a marriage on the grounds only of
colour and so is more surely contrary to the public policy of
If the Plaintiff sues for a decree of divorce on the
grounds of malicious desertion in the court of his domicile, that is,
in a South
African Court, he will no doubt find himself met with a
refusal by that Court to grant an order for divorce which would be
3/ to recognition.......
to recognition of an invalid marriage according to South
The trial court which heard this action by the
plaintiff did not consider that aspect and I have been
referred to authorities such as Forsythe on Private International Law
suggests that in such circumstances, the court of the
place where the marriage was celebrated, that is, the forum loci
celebrationis would have jurisdiction.
In Cathrall's case at p. 510, the learned judge left
open the question whether the forum loci celebrationis
might in the circumstances of a case such as the present assume
However, I am constrained to find that, despite the
sympathy one must feel for the Plaintiff, the rule of law is that
only the court
of domicile at the time of the institution of these
proceedings has jurisdiction to entertain an action for a decree of
It is also clear law that the courts of the place where the
marriage was celebrated or of the original domicile of the wife have
no jurisdiction to grant a decree of divorce where the husband is
domiciled elsewhere. (See Gilbert v. Gilbert 1901
N.L.R. 201 and Mesurier v. Mesurier (1895) A.C.
But the situation in South Africa now is that the
Prohibition of Mixed Marriages Act is about to be repealed. such
repeal will be
of retrospective effect so that all marriages
previously celebrated contrary to that Statute will be
regarded as valid in South African courts.
In that case, there will then be no obstacle to
plaintiff bringing an action for divorce in the Republic of South
Africa where he
is domiciled on the grounds that the marriage has
irretrievably broken down and in that way plaintiff will achieve a
a decree of divorce might well be granted by a court
in the country of his present domicile and which would, therefore,
4/ receive international
receive international recognition.
I am satisfied that I must follow the general principle
of our common law that only the courts of Plaintiff's domicile have
and find accordingly that there is no reasonable
prospect of success on appeal. The application is dismissed.
3rd May. 1985.
For Applicant : Mr. S. Mphutlane, For Respondent :
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