CIV/T/727/86

IN THE HIGH COURT OF LESOTHO
In the
matter between:-

ADOLPHINA 'MALEEMISA RAMOTHELLO Plaintiff

and

WILSON TICHERE RAMOTHELLO Defendant

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 30th day of June, 1989.

In this action the plaintiff claims forfeiture of
benefits arising before and/or from the marriage which was declared
null and void
on the 29th September, 1986.

It is common cause that in 1980 the plaintiff and the
defen­dant entered into and concluded a customary law marriage
and sub­sequently
the parties entered into a civil marriage on
the 30th April, 1983 which marriage was declared null and void ab
initio by this Court
on the 29th September, 1986 under CIV/T/333/85.
The ground for annulment was that at the time the parties purported
to enter into
a civil marriage the defendant was still married under
customary law to his first wife and the said marriage was still in
subsistence.

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In a pre-trial conference held by the attorneys of the
parties on the 16th June, 1987 certain points of law were set out for
determination
by this Court. Those points were stated as follows:

1. 
   Proprietary consequences of a customary marriage;

   
   

2. 
   Is there a universal partnership in a void
   marriage
   where parties lived as husband and wife and
   worked
   together?

   
   

3. 
   Effect of a nullification of a civil marriage on.
   the
   existing customary marriage;

   
   

4. 
   Ownership of the property in paragraph 7 of
   the
   plaintiff's declaration.

   
   

In answer to (a) above I think that the law was
correctly stated by Lansdown, J. in Bereng Griffith v. 'Mantsebo
Seeiso Griffith 1926-53
H.C.T.L.R. 50 at 54 where he said:

"Under the early Basotho social system, which was
wholly polygamist, the husband was the head of the family, with some
limited
authority over him by his father if still living; each of his
wives had a House of her own with cattle assigned to it; and the
property
of one House could not be used for the purpose of another;
the first wife held a position of seniority in relation to the junior
wives which entitled her to the respect of the latter."

This principle is summed up in the maxim "malapa ha
a jane" (houses do not "eat" one another). The maxim
simply
means that once the husband has allocated certain property to
each of his houses, that property shall remain the property of that
house. Each house comprised the wife and her children together with
the husband. Such property shall be used for the purposes of
that
house.

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This principle is again stated in section 12(4) of Part
I of the Laws of Lerotholi which provides as follows:

"Where property has been allocated to any
particular house and the wife in that house predeceases her husband,
the property allocated
shall remain with particular house to be
inherited upon the death of the father by the eldest son of that
house and to be shared
by him in accordance with Basotho Law and
Custom with his junior brohers in his own house."

A house may acquire property in various ways such as
"bohali" cattle for the girls born in that particular
house, property
acquired by a. working husband and allocated to that
house, property acquired by the wife through her own labour and
property acquired
by boys born in that house before they get married.

In the present case all the property in question was
acquired by the plaintiff through her profession as a herbalist. It
is common
cause that at the time the property was acquired the
plaintiff and defendant were legally married to each other by
customary law.
The legal position is that the defendant, who is a
polygamist, cannot take the property of the plaintiff's house and use
it for the
purposes of his first house. The cattle and scotch-cart
were acquired through the labour of the plaintiff and cannot be
transferred
to another house without her consent. They must be
retained in her house-for the use and purposes of her house. At the
moment the
property of the plaintiff's house is being used for the
purposes . of the first house while the plaintiff is suffering
hardships.

I do not propose to deal with the legal position of the
marital property regime of divorce in which the parties are married
according
to Sesotho customary law. That situation does not seem to
arise in the

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present case because I am of the opinion that the
customary law

marriage
between the parties was not affected by the annulment of

the civil marriage. This brings me to point of law (c)
posed by
the parties.

In the case of a void marriage the parties are not
necessarily domiciled in the same country and the decree is merely
declaratory
of, and does not alter, the existing status of the
parties. The object of the decree, however, is to place on record by
means of
judgment in rem the fact that the marriage entered into by
the parties was void ab initio and gave rise to no legal consequences
- vide Halsbury (Hailsham Ed., vol. 10, para.36) See Ex Parte Oxton,
1948(1) S.A. 1011 at p. 1015).

The status of the parties before they purported to enter
into a civil marriage was that they were validly married to each
other by
customary law rites. The purported civil marriage never
affected their status because it was void ab initio. It was a nullity
right
from the beginning and as such had no legal consequences of a
marriage. The position would be different if the decree was one of
divorce. The customary law marriage that preceded a civil marriage
comes to an end at the same time with the civil marriage on divorce
because when the parties entered into the civil marriage the
customary law marriage is fused into the former. In the present case
the customary law marriage could not be fused into a non-existing
marriage and it remained in subsistence independent of the void
marriage,

I come to the conclusion that the annulment of a civil
marriage has practically no effect on a customary marriage which

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was existing when the parties entered into the void
marriage.

I shall now deal with point (c) above whether there is
universal partnership in a void marriage where parties lived together
as man
and wife and worked together. If both parties were bona fide
and they did not enter into an ante-nuptial contract excluding
community
of property before their "marriage" was
solemnized, it must be presumed that they intended to enter into a
universal partnership.
Accordingly if they have lived together as
husband and wife for some length of time, the court may decree that
their combined property
is to be shared equally between them or their
heirs, as the case may be. See Hahlo - The South African Law of
Husband and Wife, Fourth
Edition p. 497; Mograbi v. Mograbi, 1921
A.D. 274 at p. 275.

In the present case both parties seem to have been
ignorant of the fact that because the defendant was still lawfully
married to another
woman at the time they purported to enter into a
marriage. they could not enter itno a valid civil marriage. It may
reasonably be
concluded that they were both bona fide. I am of the
opinion that the parties entered into a universal partnership because
their
"marriage" was in community of property. In Mograbi
v. Mograbi (supra) at page 275 Innes, C.J. said:

"It is now argued that there was no such
partnership established, because there was no proof of an intention
to constitute community
of property. But such community is one of the
results of marriage, unless definitely excluded. And when parties
marry it is presumed
that they intend community. No further evidence
of such intention is needed in the present case. Then it is contended
that the onus
of proving that the plaintiff earned half of the
accumulations has not been discharged. But the Court found that she
did earn as
much as the defendant and there is evidence to justify
that finding."

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I shall now deal with the evidence led in the present
case in order to decide what contribution each party made in the
purchase of
the property now claimed by the plaintiff.

Plaintiff testified that at the time she "married"
the defendant she was already qualified as a herbalist. Her practice
as a herbalist thrived extremely well and lots of people came to her
for treatments It was during her cohabitation with the defendant
that she bought the property she is now claiming from the defendant.
The defendant brought nothing into the "marriage".
She told
the Court that the defendant used to draw water and was only good in
bod (sexually)..

Lekena Ramothello testified that the defendant is his
brother. He knew that defendant had no cattle before he married the
plaintiff.
He had no scotch-cart. However, as soon as he started
living with the plaintiff he (witness) noticed a sudden change in the
lifestyle
of the defendant. He bought cattle as well as a
scotch-cart. When defendant went to live with the plaintiff he
deserted his first
wife and when he was asked why he deserted his
wife he said the plaintiff was a rich woman and was a herbalist.
Lekena told the Court
that the defendant was never a herbalist and no
crowds of people visited him at his house but large numbers of people
used to visit
the plaintiff for treatment of their ills. .

Chief Enock Moliboea is the chief of Khanyane. He
testified

are his subjects that the plaintiff and the defendant
are his subjects and that before the parties

got married to each other the defendant did not have any
wealth in the form of cattle or a scotch-cart nor was he" a
herbalist.
It was only in 1985 or 1986 that the defendant applied for
a herbalist licence.

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The defendant testified that before he married the
plaintiff he was already a herbalist. He continued to practise
jointly with the
plaintiff as herbalist. He alleges that he bought
the cattle and the scotch-cart with his own money or the money coming
from their
joint labour. He also had two knitting machines with which
he knitted jersyes and sold them.

Mokako Molapo confirmed the evidence of the defendant
that he was a traditional doctor because while they were in the mines
in the
Republic of South Africa the defendant cured one man who was
suffering from a venerial disease. On another occasion he used herbs
(upella) to expel evil spirits (thokolosi) from the home of a certain
priest. He admits the defendant became rich only after he married
the
plaintiff.

There is overwhelming evidence that the plaintiff was
and still is a very popular herbalist who is visited by a large
number of people
coming from as far as the Republic of South Africa.
It has also been proved convincingly that the defendant was not a
herbalist while
he was living with the plaintiff as husband and wife.
His own chief knew that he was a poor man before he married the
plaintiff.
Only two occasions have been referred to when he used
herbs to cure people and that does not mean that he was a herbalist
with any
sort of practice known to the general public.

I am satisfied that the defendant was not a herbalist
and that whatever he contributed during his cohabitation with the
plain­tiff
was not even enough for his own maintenance. He
contributed nothing towards the purchase of the property which forms
the subject
matter of the present dispute. There is evidence by his
own brother that the defendant said he wanted to marry the plaintiff
because
she

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was a rich woman. Having lived with the plaintiff for
only a few years he has deserted her and taken away all the animals
and a scotch-cart
and is presently using them in his first house.
Even if he had contributed some money or his labour or skill towards
the purchase
of the property mentioned above, such property must
belong to the house of the plaintiff according to Sesotho customary
law.

One of the essential elements of a universal partnership
is each partner must show that he contributed part of that estate
(Mograbi
v. Mograbi (supra) at page 275). I am of the opinion that
the defendant has failed to prove that he made any contribution in
the
form of money or his labour or skill towards the purchase of the
aforesaid property.

With regard to the sum of M6 000 I am of the opinion
that there is not enough evidence that the plaintiff had that large
amount of
money in her house. It is the word of the plaintiff against
that of the defendant. The same applies to the blankets. As far as
the
horse is concerned there is evidence that it got lost.

Although I have come to the conclusion that the
customary marriage between the plaintiff and the defendant still
subsists after the
annulment of the civil marriage, I am of the
opinion that the parties' marital property regime should flow from
their universal partnership
and not from the customary marriage
because when they entered into a civil "marriage" what they
had in mind was community
of property. In the event of such a
"marriage" being declared null and void ab initio a
universal partnership is presumed.

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In Manyaapelo v. Manyaapelo, 1976 L.L.R. 55 at p. 52
Cotran, C.J. said:

"The difficulty I find in Mr. Sello's argument is
that the void putative marriage Hahlo speaks about and the precedents
cited
relate to one purportedly entered into by civil ceremony in
community of property. The position here is that whether or not
there
was bona fide, the consequences of the customary marriage would
never result in community of property and hence there cannot be
universal partnership."

In the present case we are dealing with a void civil
putative marriage and not a customary marriage. It follows that there
was universal
partnership.

For
the foregoing reasons, the Court grants an order;

1. 
   Declaring that the four (4) cattle and a calf
   together
   with a scotch-cart claimed by the
   plaintiff which are in the
   possession of the
   defendant must be restored to the
   plaintiff
   forthwith;

   
   

2. 
   The defendant must pay costs of suit.
   
   J.L.
   KHEOLA
   JUDGE
   30th June, 1989.
   
   For the Plaintiff
   - Mr. N. Mphalane
   For the Defendant - Mr. W.C. Maqutu.