IN THE HIGH COURT OF LESOTHO
In the matter between:-
PUSELETSO COSSIE Applicant
assisted by her husband)
'NENA SEKHONYANA Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 16th day of July, 1990
On the 26th April, 1990 the Court ordered that the
matter should go to trial. On the 20th October, 1989 the applicant
(now the plaintiff)
obtained an order ex parte couched in the
"1. A Rule Nisi do hereby issue returnable
on the 6th day of November, 1989 at 9.30 a.m. p.m.
calling upon the Respondent to show cause (if any) why:-
(a) Respondent shall not be interdicted forthwith from
assaulting Applicant and or in any manner threatening the life of
pending the finali-sation of this Application.
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(b) Respondent shall not be interdicted forthwith
from visiting Applicant at her homeat SEAPOINT and or at her
place of work
at SEMONKONG METHODIST HOSPITAL, SEMONKONG pending the
finalisation of this applica-tion.
Respondent shall not be interdicted forth-with from
forcibly removing LEPOQO fromApplicant's custody pending the
finalisa-tion of this application.
Respondent shall not be ordered to returnthe girl
PALESA to Applicant.
Respondent shall not be ordered to paycosts hereof.
Applicant shall not be given any furtherand or
2. That prayers 1 (ah (b) and (c) operate with immediate
effect as interim order.
In her founding affidavit and her oral evidence in this
Court the plaintiff deposed that she and the defendant got married to
other in 1978 and that their marriage was in accordance with
Sesotho customary law. At the time of their marriage she already had
two children fathered by two men and not by the defendant. The two
children were: Palesa, a girl born on the 14th November, 1973
fathered by one Jorome Manyeli; and Lepoqo, a boy born on the 14th
August, 1976 fathered by one Masopha Maama. There is one child
of their marriage with the defendant, namely: Nehemiah, a boy born on
the 17th July, 1979.
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The plaintiff deposed that in 1984 she divorced the
defendant in accordance with Sesotho custom. She went to her maiden
the defendant. She informed members of her family that she
was divorcing the defendant on the ground that he frequently
her for no apparent reason. Her family knew of these
assaults and had no objection to her decision to divorce him. The
did not raise any objection. Members of her family who
were present at the meeting were: Her brother Mahao Mahao and his
other brother Molibatli and is wife. Her father was not
there because he was in gaol and her mother was at work in
Although the couple lived as man and wife from 1978 the
first batch of bohali cattle was paid in 1982. After this first
bohali cattle she was not aware that in August, 1987 the
defendant continued to pay bohali cattle she had divorced him in
The defendant has been at her home at Sea-Point on
several occasions, namely, on the 17th June, 1989; 8th 1989 and on
the 11th September,
1989. On all those occasions the defendant
demanded that the child, Lepoqo be handed over to him. When she
refused to do so he assaulted
After their so-called divorce in 1984 she married one
Lerato Leonard Cossie by civil rites on the 16th March, 1984 the
office in the district of Maseru.
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The plaintiff has denied that the two children, Palesa
and Lepoqo were legitimated by her marriage to the defendant.
Masopha Maama testified that he is the father of Lepoqo.
He had intended to marry the plaintiff and even informed his parents
intention. They at first agreed that he could do so but they
later changed their minds and insisted that as a chief he had to
a daughter of a chief. Before they changed their minds they had
even come to Mahao's family and had given the child the names of
The defendant deposed that he first met the plaintiff
in 1969 when she became his girlfriend. He was already
married to his first two wives. He alleges that Palesa and Lepoqo are
because he not only fathered them but they were
legitimated by his subsequent marriage to the plaintiff. In 1982 when
he paid the
first batch of bohali cattle it was agreed that he was
"marrying" the three children who were born before the
together with the plaintiff. That was the reason why he had
to pay twenty-three head of cattle.
He denies that in 1984 he divorced the plaintiff in a
family meeting. He never attended such a meeting. According to him
with the plaintiff were very cordial in 1984 and only
became sour on the 17th March, 1984 when he found the plaintiff
a man. He fought with that man and stabbed him on the
face with a knife. He later discovered that the man was one Cossie
purportedly married his wife.
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The defendant referred to a document which contains the
marriage agreement between himself and the father of the plaintiff.
Annexure "A" to the opposing affidavit and Exhibit
"C" in the trial). According to this document it was agreed
that "as for the three children of the daughter of Molise they
belong (or go ) to 'Nena only."
Molise Petrose Mahao is the father of the plaintiff. His
evidence was to the effect that he gave the three children to her
They were not being "married" with their mother.
I think this old man was confused and appeared not to know what he
Ralishoeshoe Leuta is the author of Exhibit "C"
and confirms that the agreement by the parties was that the children
before the marriage were being "married" with their
The legitimation of the pre-marital children at the
sub-sequent marriage of their mother according to Sesotho customary
law is stated
by Patrick Duncan in his book: Sotho Laws and Customs
at page 30 as follows:
"When a child is born to an unmarried woman, it
belongs to her parents' family. If later she is married she and her
do two things about the child. They may choose to make no
arrangements, in which case the child remains a member of its
grandfather's family. Or they may arrange for it to be
'married' along with its mother. Normally extra cattle are paid for
but it is not necessary for cattle to be transferred. It
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enough if the child is publicly associated with its
mother in the marriage arrangements."
The same view is held by Poulter in his authoritative
work: Family Law and Litigation in Basotho Society, at page 182 where
"Pre-marital children are clearly illegitimate at
their birth, even if their parents were already engaged at that time.
they may be legitimated by the subsequent marriage of their
parents or even of their mother to another man."
According to Poulter the legitimation of the pre-marital
children may take place even where their mother is being married to
man who did not father them. 1 have serious doubts about this
because Basotho were very reluctant to accept a child fathered by a
stranger to be a member of their family. This is the reason why when
a man died leaving a widow the family appointed one of the younger
brothers of the deceased man or any other member of the family under
"kenela" system whereby the further children would
fathered by a member of that lineage rather than a complete stranger.
The general view seems to be that the pre-marital children
legitimated by subsequent marriage of their mother irrespective of
whether or not she is being married by the man who fathered
crucial point seems to be the agreement that the children are being
"married" with their mother. No extra cattle
need be paid
but in most cases extra cattle are usually paid.
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In the instant case the evidence which I have believed
is that the children Lepoqo and Palesa were fathered by other men and
defendant. Masopha Maama and the plaintiff impressed me as
being honest and truthful witnesses on this point. The defendant was
at all an impressive witness on this point. He says that he was
told by the plaintiff that he was the father of the two children.
However, he does not even know how Lepoqo got that name. Be that as
it may, I think the defendant has proved on a balance of
that he "married" the three children along
with their mother.
Exhibit "C" clearly indicates that the
agreement covered or had something to do with the children. The words"As for the three children of the daughter of Molise theybelong (or go) to 'Nena only," were not inadvertently
entered into the agreement but were deliberately inserted to show or
prove that the children were being
"married" along with
their mother by agreement . No extra cattle were paid for them.
I entirely reject the suggestion that Exhibit "C"
is not a genuine document. The author of that document gave evidence
this Court and told the Court that he recorded the agreement of
the parties accurately. I believed this witness. His evidence is
confirmed by Mahao Clement Mahao in his affidavit that the three
children were "married" along with their mother.
Accordingly the defendant is the legal guardian and custodian of the
children. In order to deprive him of the custody of his children
grounds must be shown. (See September v. Karriem, 1959 (3)
S.A. 687 - headnote).
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The next issue is whether or not in 1984 there was a
divorce between the plaintiff and the defendant. The plaintiff has
a single witness from the members of her family to prove
that a family meeting was ever held at which a divorce was agreed
She does not say what the decision was on the status of the
children and the return of the bohali cattle. In any case 1 do not
with the suggestion that there can be a divorce without a
pronouncement by a court of law. Section 34 (4) and,(5) of the Laws
Lerotholi provide as follows:
"(4) Dissolution of marriage contracted in
accordance with the provisions of sub-rule (1) of this rule may be
granted by Native
Courts on the application of either party on the
grounds of the wilful desertion of the other party, or to the wife
for the persistent
cruelty or neglect of her husband or other cause
recognized under Basuto Law and Custom.
(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, as may seem
just in accordance with the circumstances in which the
The above subsections do not exclude the possibility of
a divorce out of court but nowadays that is no longer the case. InMotsoene v. Harding 1954 H.C.T.L.R.1 Huggard, C.J. after
hearing the evidence of witnesses declared:
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"Chief Molise states that there can be no legal
divorce without an order of court, and I am satisfied that this is
A contrary viewpoint is, however, implicit in the
judgment of de Beer, J. barely six years later in Sempe v. Tsepo
In Motsoene v. Harding-supra - the learned Chief
Justice heard the evidence of people he regarded as experts because
of their age, standing and experience. It
will serve no good purpose
that everytime a case on this subject comes to court a fresh inquiry
should be made to establish what
the customary law is. The decision
in Motsoene v. Harding-supra - is a precedent which is binding
on this Court unless it can be shown that it was wrongly decided. I
am of the opinion that it was
correctly decided; and it is supported
by section 34(4) and (5) of the Laws of Lerotholi.
I therefore come to the conclusion that the plaintiff
has failed to prove that he legally divorced the defendant. It
her marriage to the defendant still subsists and that
her purported marriage to Cossie is null and void.
The position is that the plaintiff is still legally
married to the defendant and that the defendant is entitled to the
Palesa and Lepoqo unless it can be shown at any time that
he is not a fit and proper person to have the custody of those
The plaintiff has failed to prove that point
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because her main contention was that the two children
were not legitimated by her marriage to the defendant. As I have
there was legitimation by her marriage to the defendant
and the children were publicly associated with their mother in the
agreement because there were four people on the side of the
plaintiff's family and a representative of the chief. There were
four people on the side of the defendant's family. Exhibit "C"
was stamped with the chief's date stamp.
As far as assaults are concerned the defendant has not
strongly denied them. He admits that in rixa he slapped
her in the face during their altercations.
For the reasons stated above the Court makes the
The defendant/respondent is interdictedfrom
assaulting the plaintiff/applicantor in any manner threatening
The defendant/respondent shall continueto have the
custody of Palesa and Lepoqo.
The plaintiff/applicant shall be allowedreasonable
access to Palesa and Lepoqo.
There is no order as to costs.
J.L. KHEOLA JUDGE
16th July, 1990.
For the Plaintiff - Mr. Mohau For the Defendant -
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