IN THE HIGH COURT
OF LESOTHO In the matter of
MOAHLOLI TLEBERE Appellant
v 'MA-AMENE TALAPELE Respondent
Delivered by the Hon. Mr. Justice Sir Peter Allen on the
27th day of November, 1987
This is an appeal against the decision of the
Judicial Commissioner. It is therefore the third appeal
and fourth hearing of this matter. In order to avoid confusion, as
changed titles in each court, I shall refer to the
appellant Moahloli as the plaintiff in the original case and the
as the defendant
The plaintiff Moahloli first brought this action in
Lejone Local Court (CC 10/85) in which he sued the defendant for the
his four children. The mother of these children was one
'Matello who was the daughter of the defendant. The plaintiff and
were never married
As usual the lower court records do not contain the
relevant dates and it is not easy to follow the sequence of events.
that in January 1975 the plaintiff
/had expressed ...
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had expressed an intention to marry her and a document
was drawn up. This was exhibit 'A' and I will comeback to it later.
Without paying all of the bohali (or even any of it,
the two lived together for some years as man and wife
and they had three children. Both the children and 'Matello used the
name of Tlebere. They lived near Maseru.
The plaintiff became ill (the year was not stated) and
it appears to have been some sort of mental illness. 'Matello left
took the children to her parents' home at Lefulesele village
in Leribe District This was probably in 1979 or 1980 She was
and the fourth child was born at Lefulesele They lived
there for about four or five years until 'Matello died This appears
occurred at the beginning of 1985, but no accurate dates were
After the death of their mother the children were cared
for by their grandmother, the defendant
The plaintiff did not attend the funeral but he did
demand the return to him of his children. The defendant refused and
so the plaintiff
brought her to court. Her defence was that the
plaintiff had no right to the children since he never paid bohali and
there was no
marriage ever in existence
In the Lejone Local Court the trial judgment was
delivered on 6 March 1985. The court found that the plaintiff had
failed to prove
that he was married because he had no certificate of
marriage and had called no witness
/of any ..
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of any agreement to pay bohali. The court ordered that
when a marriage agreement had been made the plaintiff was to pay four
to complete the marriage and so be in a position to collect
The trial court ignored the fact that the woman was
already dead and it seemed to think that a marriage could still take
confusing judgment does not indicate in whose favour
judgment was given and there was no order for anyone to pay costs.
The plaintiff evidently considered that he had lost his
case and he appealed out of time to Tsifalimali Central Court (CC
That court gave judgment or 28 June 1985 in which it
disagreed with the decision of the trial court.
The Central Court did not consider the case very
carefully and it made two serious errors. Firstly it decided that
agreement (exhibit 'A') was a proper agreement which
was still in existence. Secondly it referred to s.34(1) of the Laws
which it misquoted by leaving out an important and
relevant passage regarding the necessity for agreement as to the
amount of the
bohali. Having made these errors that court set aside
the order of the trial court and ordered the defendant to hand over
children to the plaintiff. It awarded no costs.
The defendant then appealed to the Judicial Commissioner
(JC 307/85) who delivered his judgment nine months later on 17 March
The Judicial Commissioner noted that the Central Court in its
judgment had omitted
/an important . .
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an important part of s.34(1), as mentioned above, and he
also held that exhibit 'A' was not a valid marriage agree-ment and
the plaintiff could not claim the children.
On these two points only the Judicial Commissioner
confirmed the decision of the trial court but he did not restore the
order for the plaintiff to pay some amount in bohali. It
appears therefore that he intended that the children should stay with
The plaintiff having lost in two out of three courts
then decided to appeal to the High Court on grounds which partly
the trial court and partly with the Central Court. The
plaintiff claimed that the trial court was correct in holding that
debt could be paid at any time (presumably because it was
supposed to represent bohali).
He claimed that the Central Court was correct in holding
that a debt in cattle bohali could never be a ground for withholding
children from the plaintiff. He also claimed that the Judicial
Commissioner was wrong in disregarding exhibit 'A' the alleged
agreement Let us first consider the Laws of Lerotholi. The
relevant part reads as follows
(1) A marriage by Basuto custom shall be
deemed to be completed when
there is agreement between theparties to the
there is agreement between the parents
of the parties or between those who stand in loco
parentis to the parties as to the marriage and as to the amount of
(c) there is payment of part or all ofthe bohali
Provided that if the
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man dies before the woman goes to his parents' house the
bohali shall be returned and the marriage shall be null and void.
(2) If the woman dies before all the bohali is paid any
balance of the bohali which remains unpaid shall none the less be
I have underlined the Part in (1) (b) above which was
omitted or ignored by the Central Court. It is clear from this that
agreement alone is not sufficient without an agreement as
to the amount of the bohali.
Exhibit 'A', the so-called marriage agreement, reads as
follows " 22/1/75
This is to certify that
I have given Makozonke Phephetho R50 in addition to
R.110 and so the total amounts to R160. This payment is for marriage
daughter. The balance is R.20 to make up the sixth (6) cow
before we proceed with the marriage.
Witnesses. (1) X - Makozonke Phephetho
Jonathan F. Tlebere
21/4/75 I hereby show proof that I have given Makozonke
Phephetho R20 balance, we are now going to show the marriage at the
the eleventh month.
Witnesses (1) X - Makozonke Phephetho
(2 Jonathan F. Tlebere
(3 'Mamotsoanku Tlebere."
It will be seen that the writer of this vague document
did not identify himself and he did not sign the
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document. Furthermore, he did not state who was supposed
to be marrying whom, now whose daughter was involved, nor what her
It was not clear with whom the agreement was made
and, in any case, that person did not sign the document either.
are generally supposed to witness the signatures of the
parties to an agreement. In this case neither of the parties signed
the witnesses' signatures serve no apparent purpose. In other
words the document is worthless and meaningless It cannot be
enforced even if it could be understood
Evidence was given for the defence at the trial that the
five cows paid by the plaintiff were in fact compensation for the
of 'Matello and that they were not a part of the bohali.
Exhibit 'A' itself, as far as it can be understood, appears to
that the marriage agreement had not yet then been made, but
was to be concluded in the following November. This seems to have
so because the amount of bohali was not mentioned as it must be
in an effective marriage agreement.
If such an agreement has been made and there has been
part-payment of the bohali before the wife dies it is clear from s
that the balance still has to be paid after her death
However, that only applies after a proper and lawful marriage
the amount of the bohali, has been made This was
not the case here.
Consequently the Judicial Commissioner was correct in
his finding that there was no valid marriage agreement
There is one remaining point which none of the lower
courts seem to have considered seriously at all
/The plaintiff ..
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The plaintiff put in as exhibit 'B' a letter about
himself signed by Dr. Mohapeloa, the Director of Mental Health
Services in Maseru.
It was dated 22 February 1985 and reads as
" Re Moahloli Tlebere
This is to certify that Moahloli Tlebere of Motimposo
has been receiving treatment for a mental disorder since 1973.
Mr. Tlebere suffers from a chronic mental illness and
has to date failed to respond to treatment mainly due to the fact
that he has
been irregular with his treatment.
His sister Miss Motsoanku Tlebere has
recently informed us that the patient sold the family
property at Motimposo.
In my opinion he acted whilst of unsound mind."
Thus, even if the plaintiff made an agreement in 1975 he
was then suffering from a mental illness and it would no doubt have
unenforceable However, the most significant point about his
mental condition is that the medical certificate was exhibited in the
trial court and it was consequently available for reference by all of
the lower courts which, in fact, merely ignored it. Yet it
obvious that no reasonable court could ever make an order placing
four young children into the care of someone of unsound
mind like the
plaintiff. It would be both absurd and outrageous to do so, apart
from the irresponsibility of making such an order
and thus acting to
the detriment of the children and even endangering them.
Finally I must refer to suggestions made in the
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various lower courts on behalf of the plaintiff that,
even if a valid marriage agreement was not made earlier, the
plaintiff was and
is willing to make such an agreement now and
to pay bohali. I find the idea that anyone could even contemplate
making a marriage
agreement, and carrying it out, with regard to
payment of bohali and for marriage arrangements with a woman who is
to be totally unacceptable and repugnant. This is, of
course, quite a different matter from merely paying the balance of
a marriage agreement that existed and was effective while
the woman concerned was still alive (as in s.34(2) above).
For all the above reasons this appeal cannot succeed and
it is accordingly dismissed with costs to the respondent/defendant.
The finding of the Judicial Commissioner that there was
no marriage agreement and that the plaintiff/appellant therefore
the four children is hereby confirmed So too is the
Judicial Commissioner's award of costs to the defendant/respondent in
the lower courts.
P A P. J ALLEN JUDGE
27th November, 1987
Mr. Pitso for the appellant
Ramodibedi for the respondent
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