IN THE HIGH COURT
OF LESOTHO In the matter between:
LECHESA MAEKANE Applicant
NTJA NKHAHLE Respondent
Delivered by the Hon. Acting Mr. Justice M.L. Lehohla
on the 28th day of January, 1987 After hearing argument by
both Counsel for the above
parties I dismissed the application to appeal against
the Learned Judicial Commissioner's judgment with costs on 27th
My reasons for so doing follow.
Applicant approached this Court by way of Notice of
Motion supported by an affidavit the thrust of which was that this
issue an order:
1. Granting applicant leave to appeal against
thelearned Judicial Commissioner's judgment in
j. C. 186/82.
2, Compelling respondent to pay the costs in the
eventof his opposing this application.
The Notice of Motion is opposed.
In his affidavit the applicant avers that in 1981 'he
instituted proceedings in the Majara Local Court against
Respondent and one Hlaoli Nkhahle for a claim of 20 head
of cattle or M100.00 per cattle (sic), 10(ten) small stock or M60.00
one horse or M100 and M600.00 damages for caring for the
children of Hlaoli Nkhahle. The trial Court at the end of the day
the case in applicant's favour and ordered Respondent to pay
him 16 head of cattle or M80.00 per cattle (sic), 10(ten) small stock
or M40.00 each and (one) horse or M60.00 plus costs.
It would appear in respect of M600.00 damages respondent
was absolved from the instance because of the trial court's lack of
Respondent then filed a petition for leave to note an
appeal out of time to Motjoka Central Court which dismissed the
thus leading to respondent appealing to the Judicial
Commissioner's Court against the judgment of Central Court on the
for leave to appeal out of time.
The Judicial Commissioner in upholding the respondent's
petition simultaneously considered the merits and dismissed the
In the interests of clarity applicant and respondent
will be referred to as plaintiff and defendant respectively.
An extract from the record of the Court of first
instance appearing on page one of the Judicial Commissioner's
judgment shows that
the plaintiff stated " I deny that my
daughter was married in 1977. We did not make any agreement on the
number of bohali cattle
(sekepele) but he (defendant) started by
paying 4 head of cattle as dowry. The girl had been abducted".
In his founding affidavit
plaintiff states that he has good prospects
of success on appeal to this Court.
Defendant denies this averment on the grounds that there
was never any agreement on the number of cattle required to pay
further asserts that an agreement on the scale of bohali
is a necessary condition upon which when all other conditions have
satisfied, marriage can be deemed to exist.
Plaintiff further averred and this has not been
specifically denied that defendant was not telling the truth when he
said that he
failed to lodge his appeal timeously because of his
father's illness since, continues the plaintiff's averment,
was already dead when these proceedings began at
Majara Local Court. Plaintiff further states that "In fact it
himself who notified the Court that his father had
However the learned Judicial Commissioner inaccepting
the defendant's reason for failure to appealtimeously i.e. within
the prescribed period of 30 days,this sole reason as submitted by
defendant being hisfather's long illness which resulted in his
death,stated " .... By this statement I am to infer
thatbecause of his father's long illness the defendant hadto
nurse him and he was therefore unable to lodge hisgrounds of
appeal and to pay the necessary fees atMajara Local Court "
It is significant that plaintiff before this Court has
not placed any record of proceedings in the Court of first instance
of the intermediary courts save the Judicial Commissioner's
judgment despite the requirement that the duty is on him not only to
prepare such records as he would like the Court to peruse but to
render it available to the Court.
Furthermore plaintiff has not gainsaid the quotation of
his statement contained in the learned Judicial Commissioner's
the effect that in answer to the local court's inquiry he
plaintiff, stated " I deny that my daughter was married in 1977.
did not make
any agreement on the number of bohali cattle "
yet in his heads of argument before this Court he seeks
ad para 1.3. to suggest that in fact there was marriage between his
and defendant's son.
Nowhere in his founding affidavit has he asserted in
clear terms that there was marriage between the parties concerned.
that defendant has held this in question in his
opposing affidavit did plaintiff bother to file any replying
affidavit in response
thereto. My view is that a matter of such
crucial importance in the case cannot properly be resigned to
treatment in the heads of
argument or submissions from the bar.
In any event I cannot see how plaintiff could be said to
have discharged the onus on him to establish that marriage existed
his daughter and defendant's son if in the same breath he is
recorded and quoted as having said that there was no agreement as to
bohali between him and defendant.
Ad para 4 of heads of argument needless to state
plaintiff makes reference to contents of the Local Court proceedings
which are not
before this Court.
It was of the essence of the Learned Judicial
Commissioner's duty when considering the application before him to
consider the prospects
of success on appeal. He could not do so
without considering the merits. Therefore plaintiff's argument that
matter appealed from
not involve merits ad 2.3 of his heads or 5.5 of
his affidavit cannot be entertained.
It is trite law that a marriage shall be deemed to be
there is agreement between the parties to themarriage;
there is agreement between the parents of theparties
or between those who stand in locoparentis to the parties as to
the marriage andas to the amount of the bohali;
there is payment of part or all of the bohali
Vide Family Law and Litigation IN Basotho Society by
S. Poulter at 76, and Section 34 of the Laws of
As shown in the extract of the Judicial Commissioner's
judgment mention is made of the fact that defendant "started by
4 head of cattle as dowry." The use of the word dowry
suggests that bohali did feature in the discussion relating to
proposed or purported to be entered into between the
daughter and son of plaintiff respectively and defendant. However
contends that the question of marriage was not the issue
before the Judicial Commissioner's Court. What has always been the
throughout the courts is the agreement on the scale of bohali.
In this regard plaintiff's statement lends support to defendant's
contention. Be it remembered that plaintiff himself said he and
defendant did not agree on the number of bohali cattle. It appears
to me that in fact it came as a matter of surprise to him that
defendant paid the 4 head of cattle to start with notwithstanding
the fact that the essential point,namely, agreement as to scale
(sekepele) of bohali had not been
reached. Plaintiff further leaves one in a quandary as
to what he regarded the payment of the 4 head of cattle as being in
because immediately after making reference to them he says the
girl had been abducted. It thus remains a matter for conjecture to
say whether these cattle were for abduction or for bohali. But they
cannot be for bohali because as indicated earlier both parties
this dispute are agreed in so many words that there was no agreement
as to the scale of bohali. If any of the parties regarded
part payment of bohali it would defy ordinary logic to regard them as
such because common sense would require them to be
part payment of a
Ad para 3.2 of his heads plaintiff seems to try to place
the onus on the Judicial Commissioner to justify what the 4 head of
were in aid of if there was no agreement as to the scale of
bohali. In my view this is a misplaced onus. The onus is on plaintiff
to say what the scale was. In my judgment he has failed to discharge
it on a balance of probabilities.
With regard to the procedure followed by the plaintiff I
wish to refer to Section 28(3) of Central and Local Courts
" Any person agrrieved by any order or decision of
a Central Court may
appeal therefrom to the Courts of JudicialCommissioners
" There shall be no appeal to the High Court from
the decisions of the Courts of Judicial Commissioners except in the
(a) upon any question of law or of native law and custom
reserved by the Judicial Commissioner at the instance of either party
of his own motion; or
(b) upon the certificate of the Judicial
Commissioner that it is a fit case for appeal on any
other ground which appears to him to be sufficient ground of appeal:
Provided that nothing herein contained shall in any way
affect the right of the High Court to make such order as may seem
the motion of any party aggrieved by the refusal of a
Judicial Commissioner to allow an appeal under the preceding
As stated already, in considering defendant's appeal
from the Central Court the Judicial Commissioner dealt also with the
It would thus seem immaterial whether the Central Court
confined itself only to the application to appeal out of time and
the merits. Moreover the only matter that plaintiff is
justifiably aggrieved of on that score is that defendant was lying
said he failed to note his appeal in time because his father
was ill. But surely that is a question of fact. Hence in that regard
plaintiff's contention failed to accommodate itself within the terms
of (a) supra as no question of law was involved in that
regard. Needless to emphasise plaintiff's contention failed to move
the Judicial Commissioner
to issue a certificate that plaintiff's was
a fit case for appeal on any ground whatsoever.
Nothing prevented the plaintiff from advancing his
arguments as to the merits in all the courts that this matter went
this Court his case was in part fore-doomed by his
failure to produce the record of the case from initial stage when it
was his duty
to do so.
Approaching this Court by way of motion when
outlined in (a) and (b) above could not be
of any avail to plaintiff is something that should not
be lightly embarked upon especially in the circumstances of this case
it must have been patently clear that once plaintiff himself
vehemently stated that there was no agreement as to the scale of
there could be no way he could enforce payment of the balance
of bohali because in dealing with a similar aspect Jacobs C.J. as he
then was in Maqutu vs Hlapane 1971-73 L.L.R. 36 at 38
had occasion to refer with approval to Makhele
vs Rataleli J.C. No. 153/45 " If that
did not exist ...... the claim of dowry falls away."
Again in Ramaisa vs Mphulenyane 1977
L.L.R. 138 at 148
Cotran C.J. as he then was referred to "
events in that twilight period between agreements and
payment of part of bohali referred to in S.34(1) a,b,&c.
of the Laws of Lerotholi lasting for years"
He went further to show that during such periods "
something goes amiss" resulting from a variety of
possibilities such as death of one of the parties, elopment with a
emergence of a suitor prepared to pay on the dot, or
simply a change of heart". See also pages 150 to 151 supra.
In the above quoted case of Ramaisa the learned
Chief Justice as he then was correctly pointed out that
one of the factors that nullifies agreement between the purpoted
full payment of bohali is change of heart
on the part of one of them. Surely a logical extension
of this dictum to cover even the situatuation where there is a change
by one of the parties i.e. one of those standing in loco
parentis of the intended spouses does not reduce the principle to
absurdity especially when one of the parties i.e. the intended
/by such ...
by such an occasion raises an objection on the grounds
that the agreement is being unnecessarily withheld to his or her
in which event it would perhaps be a different matter if he
or she seeks assistance of the Court to compel the agreement. Vide
C of A (CIV) No 12 of 1983 DAVID MASUPHA vs PASEKA 'MOTA.
It is expedient indeed to have legislation passed to deal with these
matters. Reference here is to Section 24 A introduced into
Marriage Act of 1961 by an amendment in 1984.
The purport of plaintiff's application would bring about
absurd results, namely that marriage should be presumed by the Courts
clear indications that there was never any agreement on one
of the vital essentials consituting it. That would run counter to
well worn principle of law relating to agreements: Nil consensui
tarn contrarium est quam vis atque metus (Nothing is so
opposed to consent as force and fear).
Another matter of grave if amazing concern is that
plaintiff in the categorised aspects of his claim shows in the
affidavit that the
basis of his claim represents damages incurred in
his taking care of Hlaoli's children. Such damages are covered under
a well known
Sesotho head called (khomo ea seotla) a beast for
bringing up someone else's child or children. How then does the
question of bohali
get into this?
Counsel for plaintiff submitted that where there is no
agreement as to the scale of bohali then because
was made of 4 herd of cattle as dowry then
herd conventional scale of 23 of cattle has to be
to but did not substantiate this on any clear
Approaching Courts of law by notice of motion in such
cases as the instant one may well amount to abuse of Court process.
It was in regard to the above that I decided not to
disturb the Learned Judicial Commissioner's decision.
Consequently application to appeal against the judgment
of the Judicial Commissioner's Court was dismissed' with costs.
M. L. LEHOHLA
28th January, 1987
For the Applicant : Mr. Ngakane For the Respondent :
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