CIV/APN/139/89 IN THE HIGH COURT OF
In the Application of:
'MAMAHASE MAHASE (nee Mosoang) Applicant
THABISO VICTOR MAHASE 1st Respondent
- MAJARA LOCAL COURT 2nd Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the
27th day of February, 1990.
On 19th June, 1989, the applicant herein filed with the
Registrar of the High Court a notice of motion in which she moved the
for an order framed in the following terms :
"(a) That the case No. CC 68/89 of Majara Local
Court to be heard on 21st June, 1989 be removed to the above Hon.
it shall be heard and dealt with;
Further and or alternative relief.
Costs of suit."
Although they ware duly served with the motion papers
the Respondents have not intimated intention to oppose this
may, therefore, be savely assumed that they are
prepared to abide by whatever decision the court will arrive at.
The facts that emerge from the founding affidavit are
that in April, 1980 the applicant and the first respondent who are
of Khubetsoana in the district of Maseru got married to
2/ each other
each other in accordance with Sesotho Law and Custom.
still subsists and three (3) children were born of the;
In 1986 the first Respondent developed a habit of
excessively, assaulting the applicant and sleeping away
from the matrimonial home. Consequently on 2nd October, 1988, the
left the matrimonial home and went to live at her maiden
home. She took with her the minor children of the marriage. Wherefor
first Respondent sued her (under CC 68/89) before the Majara
Local Court for the dissolution of the marriage concluded between
The applicant then instituted the present application
for the relief set out in the notice of motion. The grounds upon
which the applicant
relies for the relief sought in the notice of
motion are that she intends to defend the action and counter claim
against the first
Respondent. In addition the applicant avers that
ever sines she left the matrimonial home the first Respondent, who is
man and, therefore, able to maintain her and the minor
children of the marriage, has failed to afford her and the children
support. She intends, therefore, to ask, in her counter
claim against the first Respondent, for an order of maintenance for
and the minor children, as well as for the custody of the
children, all of which reliefs the local court has no jurisdiction to
It cannot be seriously argued that a civil action for
dissolution of a marriage concluded in accordance with
Sesotho Lawand Custom is within the jurisdiction of the local and
centralcourts. That being so, S.6 of the High Court Act, 1978
"6. No civil cause or action within the
jurisdiction of a subordinate court (which expression includes a
local or central court)
shall be instituted in or removed into the
High Court save .- (a) by a Judge of the High Court acting by his own
(b) with the leave of a judge upon application made to
him in chambers and after notice to the other party."
By the use of the word "shall", it seems to me
that the provisions of the above cited section are imperative.
an action to dissolve a customary law marriage is within
the jurisdiction of the Local and Central Court, it necessarily
that it cannot be instituted in or removed into the High
Court subject. of course, to the provisions stipulated under
(a) and (b)
of section 6 of the High Court Act, 1978.
On the papers before me, it is clear that the 'applicant
seeks the removal of Civil case No. CC 68/89 from Majara
to the High Court and makes reliance on the provisions
of the High Court Act, 1978 which empowers this court
discretion to do so. Such discretion must, however, be:
always exercised judicially and not whimsically.
As it has already been pointed out earlier, the grounds
upon which relief, in terms of S.6(b) of the High Court Act,; supra,
is firstly that the applicant intends to defend the divorce
action instituted against her by the first Respondent and
, secondly the applicant intends applying for an
order compelling the first Respondent to maintain her and the minor
the marriage as well as for the custody of the children.
4/ As regards
As regards the first ground there is no doubt in my mind
that if she intended to defend the divorce action (CC 68/89)
her by the first Respondent, the Majara Local
court, which is a court of law, would afford her the opportunity to
do so. Assuming
the correctness of her averment that she intends
counter claiming in CC.68/89 it seems to me what the applicant really
wants to do
is to contend that she, and not the first Respondent has
ground for divorce. The relief sought by the latter in the above
case (CC.68/89) should, therefore be granted to her.
In her counter claim the applicant will, in effect be
instituting, against the first defendant, another civil action for
of their customary law marriage which action, as it
has already been stated, is within the jurisdiction of the local and
courts. The removal of CC.68/89 from the Majara Local to the
High Court cannot in my opinion be justified on the first grounds
upon by the applicant.
Coming now to the second grounds viz. custody of the
children and maintenance, it is significant that Section 34(5) of
Part II of
the Laws of Lerotholi provides in part :
"(5) A court granting dissolution of such a
marriage shall make an order regarding the retention or return of
"bohali",cattle, and to whom the children, if any,
shall belong "
I have underscored the word "shall" in the
above cited Section 34 (5) of Part II of the Laws of Lerotholi to
view that upon the dissolution of a customary law
marriage the court must decide, inter alia, with which of the two
will remain. Where a local court is already seized with
5/ a civil
a civil action for the dissolution of a customary law
marriage I do not, therefore, consider it proper for the High Court
its powers under section 6 of the High Court Act, 1978
simply to pre-empt the decision which the former court is, in law,
As regards the question of maintenance of the applicant
I fail to understand how the first Respondent can be legally liable
maintenance fee for her after the dissolution of the marriage.
He will, of course, always have a duty to maintain the minor children
of the marriage. However, action for such maintenance is triable
before the magistrate courts which the applicant is free to approach
at any time. It seems to me, therefore, there is no need for the
applicant to have CC.68/39 transferred to the High Court simply
obtain an order compelling the first Respondent to maintain the minor
children of the marriage.
from the foregoing, it is obvious that I am not
convinced that, on the papers before me, the applicant has
established a case for
the removal of CC.68/89 from 'Majara Local to
the High Court.
I would, in the circumstances dismiss this application.
B.K. MOLAI JUDGE.
27th February, 1990.
Applicant : Mr. Monaphathi
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