CIV/APN/476/98

IN THE HIGH COURT OF LESOTHO

In the matter between:

NTSAPO PETLANE (BORN MAKUNYA) PLAINTIFF

AND

MATHE PETLANE 1^ST RESPONDENT

BERNICE PETLANE (DULY ASSISTED) 2^ND RESPONDENT

JUDGMENT

Delivered by the Honourable Mrs. Justice K.J. Guni on the 25^th August 1999

On the 11^th August 1999 I allowed this application to succeed as prayed. I indicated then that the reasons will follow. These are the reasons.

The parties in this matter are husband and wife. The wife is the applicant. The husband is the 1^st respondent. The wife, who has approached this court by way of an urgent application, seeks a number of remedies, in an attempt to try to resolve

2 the parties' matrimonial problems. This applicant has alleged that she is subjected, on a regular basis, to physical abuse by her husband, 1^st respondent herein. Since November 1997, which is about two years living together as husband and wife, the husband , according to the applicants averments, commenced to cultivate a bad habit of regularly assaulting her. The assaults were perpetrated in the most vicious manner. The applicant was slapped and punched across her face. She was strangled until she passed out. When she gained consciousness she was asked why she was taking so long to die. The assault would then be resumed with more vigour than before. At times he resorted to the use of a weapon. On the 10^th June 1998 he stabbed the applicant above the left eye with a screw driver. During these episodes of assaults, the applicant ran for her dear life to a place of safety and refuge, at her relatives' or friends' places. Although the 1^st respondent denies the alleged assaults, he however seems to acknowledge perhaps inadvertently, that the applicant ran away from the matrimonial home regularly. At paragraph 10 of his Opposing Affidavit, 1* respondent, explains away his failure to inform, (let alone discuss with) the applicant why he took their son to the nursery school without her knowledge. Applicant is not opposed to the education of their son. She merely wants to be informed and involved. 1^st respondent explains his failure as being due to the applicants absence from home because she had gone to her maiden home. He accuses her of being "used to 'ngala' whenever

3 she felt like". [My underlining]. He recalled six occasions of such 'ngalas'

without course . In his own way, 1^st respondent has admitted that his wife regularly, suddenly and unceremoniously left their matrimonial home for her maiden home. He ventures no suggestion for her runs. According to him she just felt like running to her maiden home for no good reason.

Negotiations between the parties, with the help of their relatives, also occurred as regularly as those assaults and consequential 'ngalas'. Every time those negotiations resulted with a return by this applicant to the matrimonial home. So the cycle continued. The couple has a minor child, a boy of about 3 years of age. Since 10^th June 1998, the applicant and 1^st respondent have been living apart. They are in fact separated. The applicant will institute proceedings for a legal separation.

On the last occasion of these series of assaults the applicant was forced to run away as usual suddenly and unceremoniously from the matrimonial home. She left behind this little boy, their personal effects, her books and educational certificates and of course all the property of their joint estate. All she has, are those clothes she was wearing that day, when the assault commenced. She ran to her maiden home which is between one hundred and fifty and two hundred kilometres away

4 from Maseru. Despite the distance, this applicant nevertheless, goes to see their little boy at the nursery school, in Maseru often enough to earn herself a ridicule from her husband. Her husband accused her of having propensity to disturb the boy at school; this minor child seems to be in the custody of the step-mother-in-law of the applicant, 2^nd respondent herein. It is the 2^nd respondent who takes this child to and fro this nursery school. The applicants access to this child is restricted and at times denied by both respondents. On the 13^th August 1998 applicant who was not feeling very well took herself to the doctor who examined her. The examination revealed that she had a cyst. In addition she was found to be pregnant. These discoveries since they were made known to her in-laws, seem to have deepened the rift between her and her husband and his step-mother.

On 30^th November 1998 applicant paid the usual visits to her son at pre-school. 2^nd respondent (applicants step-mother-in-law) dragged away from this applicant, her little boy, screaming and kicking, presumably indicating that he wanted to be left alone to see his mom. 2^nd respondent, according to the applicants averments (at paragraph 9 of the Founding Affidavit), appeared to be unmoved by the little boy's behaviour in those circumstances. She took him away - leaving his mother behind.

5 The applicant came to this court to try to put a stop to the assaults by 1^st

respondent and to ask for the custody of their minor child. In addition, she needs her clothes, books and educational certificates so that she can use her certificates to enhance her chances to get employment. In addition to her contribution in kind for taking care of their son, she intends to seek employment so that she can also contribute regularly to the financial support and maintenance of herself and their son. She is also asking the court to order 1st respondent to adequately contribute towards her maintenance and their minor child. Applicant further asks this court to order 1st respondent to contribute towards her costs of this application in the specified amount.

2^nd respondent, although she appears to be in fact, the custodian of the minor child and has been accused of participating in the denial of applicants access to the minor child, has not filed any opposing papers to this application. The applicant states that the 2^nd respondent is unwilling to be the custodian of this minor child. This has not been denied. Only the 1st respondent has filed the opposing papers. In his opposing affidavit 1^st respondent has raised two points in limine relating to the jurisdiction of this court and the question of none disclosure of material facts. The applicant has alleged that she married 1^st respondent by civil rites and in community of property at Lesotho Evangelist Church Mission, on 15^th

6 April 1995 in the Botha-Bothe District. The 1^st respondent alleges that he married applicant in accordance with Sesotho customary law, in community of property, on 9^th July 1994. There is a marked difference between those two parties as regards the type of their marriage and the date of the said marriage. The applicant is accused of none disclosure of material fact, that their marriage was in accordance with Sesotho customary law. For this failure to disclose, the court is asked to dismiss this application. Furthermore, it is pointed out to the court that the marriage being in accordance with Sesotho customary law, the relationship of the parties therein, must be governed by customary law. This being the position, it is therefore suggested that the parties should look to the central and local courts, for remedies of the problems in their marriage relationship.

In this country there is a dual system of law consisting of Roman Dutch Law or civil law and Sesotho customary law. In cases of marriage, parties have a choice of law which should govern their relationship. Such a choice can be made expressly [which never happens] or can be determined by the court from the surrounding circumstances of the said marriage [which is always the case] when there is a dispute with regard to their said marriage relationship.

The points raised in limine are so closely related that the explanatory answer to

7 one, answers the other as well. The party which is accused of non-disclosure of

material fact must be aware of the fact allegedly withheld by her WILKIES CONTINENTAL CIRCUS V DE RAEDTS CIRCUS 1958(2) SA 598 at 602 DE F. Non disclosure must be proved to have been committed wilfully and mala fide or at least negligently Hersteen and van Winsen Page 367 fourth Edition. Furthermore the material facts allegedly kept back, must be of such a nature that they might have influenced the court in the exercise of its discretion to issue or not

to issue the rule. [ In re The Leydrdrop and Pietersburg ( Trasvaal)

Estates Ltd. in liquidation 1903 TS 254 Crowley v Crowley & greater 1919 TPD 426; Estate Logic v Priest 1926 A D 312 at 323; Power No v Biever and Others 1955 (1) SA 490 (W) at 502 H.

The question of choice of law which should govern the parties' marriage relationship, was never considered, let alone discussed at any time by these parties themselves. As usual, it falls upon this court to determine the parties' choice of law, after the thorough examination of the facts of this case as they appear on these papers file of record. Before analysing the facts and determining which type of our two different marriage laws they characterise, we must first, enumerate, the essential requirements of civil and customary law marriages.

The essential ingredients of the civil rites marriage are the following:

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(a) The parties to the marriage must have necessary capacity

to marry or if not, must be duly assisted.

(b) The parties must be capable of marrying each other, that
is to say, there must be no impediments and they should
not fall in the category of the people prohibited by law
from marrying.

(c) The prescribed formalities must have been satisfied (See
Butterworths - FAMILY LAW SERVICE - service issue
27 of 30 November 1998.) The above mentioned
attributes of civil marriage are provided for in
MARRIAGE ACT NO 10 of 1974 Sections 3, 27, and
29 which deal with consent of the parties, their capacity
and impediments to marry. For the marriage to be
recognise as a valid Sesotho customary law marriage the
following essential requirements must be satisfied.

(a) The parties to be married must have consented to be so

married.

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(b) The parents of the parties or those who stand in their place, must

consent to the marriage.

(c) There must be [full or part] payment of 'bohali'.
LAWS OF LEROTHOLI 1

In order to classify or characterise the marriage as civil law or customary law marriage, there must be evidence which demonstrates the intention of the parties as to their choice of the particular law of marriage. In her Founding Affidavit this applicant avers that they held an engagement party where 1^st respondent gave her an engagement ring. Engagement is a phenomenon which is known in marriages by civil rites. It is an agreement or an indication of an agreement between a man and a woman who are free to marry each other, that they will marry each other at some time in the future. Praelectiones ad Gr.l 2.27. It is not a feature of customary law marriage. In Sesotho custom, when anything was put around a finger of a bride to be was "lesika", which was tied tightly on the finger, to stop circulation and cause pain, which will induce the girl to give her consent to the proposed marriage. That unfortunate practice is long forgotten. It cannot be equated or be put in the same category as engagement.

10 From the onset, when the parties gave notice of their intention to be married in the future by their engagement, they, in no uncertain manner, pointed out the clear direction towards their intended choice of law that will govern their marriage relationship. Prior to the solemnisation of their marriage, the parties sought and obtained a special marriage licence which authorised the marriage officer to solemnise the parties marriage without publication of the banns as required by section 16 MARRIAGE ACT NO. 10 of 1974. According to the applicant, entering into customary law marriage never ever crossed her mind. At all times she regarded herself as having entered into marriage by civil rites. She denies that she married 1st respondent by customary rites on 9th July 1994 as indicated on Annexure "MP1". She added a support to her denial by giving two reasons:-

1. She does not know nor has she ever seen that
   Annexure MP1. She is not part of it.

2. She only commenced to live together with 1st respondent

as husband and wife after the solemnisation of their marriage by the marriage officer at Lesotho Evangelist Church Mission on the 15th April 1995. This was after almost one year after the alleged customary law marriage

In the civil rites marriage solemnisation, both parties were directly and personally involved. This is what this applicant emphasised in her replying affidavit.

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1st respondent does not deny taking part in the solemnisation of their marriage at Lesotho Evangelical Church mission in Botha-Bothe. He calls the solemnisation of their marriage, a mere blessing of the marriage which had already taken place. This allegation is far from the truth. The marriage by customary rites needs no blessing by the church. The blessing of marriage and solemnisation of marriage must be two different things. Sesotho custom and tradition have nothing in common with the church. There is no need for the one to validate the other. Amongst the essential requirements of a valid customary rites marriage, there is no blessing by the church; what took place at the church, if the parties were already married, was nothing of significance as regards the validity of their marriage. But if they were not yet married, as this applicant alleges, that was the process of concluding that contract of marriage.

Marriage by customary rites needed the applicant's consent. There is no evidence that the applicant was ever asked if she consented to marry 1st respondent by customary rites. There is no evidence to show this court that the applicant consented to such marriage. The document produced by 1st respondent does not show this court that this applicant agreed to be so married . The document shows this court that the families agreed to the marriage of the parties. Nothing is said about the consent of the parties themselves. Without her consent, applicant could

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not be married in accordance with customary law as alleged by 1st respondent.

Therefore the applicant had no knowledge that she was married to 1st respondent in accordance with customary rites. She could not possibly be in a position to disclose the fact which she does not know. There is no wilfulness, mala fide or negligence on her part. The families of the parties may have reached an agreement that their children may marry and part-payment of bohali made; but there was still an important element [consent of one of the parties] missing. This could not be a valid customary law marriage.

On the question of jurisdiction, the High Court has unlimited jurisdiction in all civil and criminal matters, section 119 (l)of the Constitution of Lesotho. The relevant portion thereof reads as follows:-

"There shall be a High Court which shall have unlimited
original jurisdiction to hear and determine any civil or
criminal proceedings?? " {My underlining)

Central and Local Courts Proclamation 62 of 1938 established the courts which were to be given limited jurisdiction in matters pertaining to (My underlining) customary law. (See Sections 2, and 9. Central and Local Courts Proclamation 62/83). I have difficulties to read into that provision, the exclusion of jurisdiction

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of the High Court in any civil matter, particularly this present case. Amongst the

issues to be determined in this application is the custody of the minor and its maintenance. The High Court is the upper guardian of all minors. Its jurisdiction cannot be excluded in this matter. An interdict is the remedy available here at the High Court. Convenience favours that all the matters in this application be dealt with together and not in separate and different fora. It is proper for the High Court to deal with the question of the custody of the minor and the related matters such as its maintenance.

It is the finding of this court that the parties contracted a valid civil marriage. Their relationship in that marriage must therefore be governed by civil law. Customary law does not apply. The points in limine - attacking jurisdiction and or competency of the High Court to determine this matter must fail and are dismissed.

MERITS OF THE APPLICATION

Having dismissed the points raised in limine, I now proceed to deal with the merits of this application.

The applicant seeks an order interdicting and restraining 1st respondent from

14 assaulting, harassing and in any way threatening applicant with violence at any time and place. In order to succeed, the applicant must first show this court that she has a clear right; secondly that an injury has actually been committed or that she has a reasonable apprehension that injury will be committed, and thirdly, that she cannot afford to wait for an ordinary remedy in due course. SETLOGELO V SETLOGELO 1914 ad 221 AT 227.

In her Founding Affidavit applicant averred that her husband quite early in their married life acquired the habit of assaulting her regularly. Twice when she was so assaulted, she lost her consciousness. That indicates that the assaults must have been brutal. On the first occasion she passed out while being strangled. 1st respondent waited for her to regain consciousness. When she did, he asked her why she was taking so long to die. When she fainted again 1st respondent locked her in the house and left her lying unconscious on the floor. The injuries she had sustained are shown in the doctor's medical report.

Everybody has a right to life, section 5 (1) Constitution of Lesotho. This applicant has that inherent right to life. Her husband is not entitled to threaten and/or to take it away. Her life has been threatened. She has been viciously assaulted to the extent that she lost consciousness at least twice. She alleged that she was stabbed with a screw driver above the left eye. The doctor's medical report supports this allegation

15 by showing that she sustained laceration on the left supraorbital area. There was

tenderness found by the doctor's examination on the left supraorbital area and mandibular area. There were injuries on the head, neck and chest. These particular areas of the body are targeted to cause fatal injury. This is an attack which can be considered to threaten her life. She went on to say that 1st respondent has a habit of putting a dangerous weapon, a knife under his pillow. At one time in the middle of the night the applicant woke up with a fright when she saw her husband standing, towering over her side of their bed, looking down on her. To make matters worse, when he saw her jump with fright, he asked, "do you fear that I will kill you?" The behaviour and such remarks from her husband, the applicant states, are causing her fear for her life. The constitution does not only recognise her inherent right to life; it also recognises her freedom from inhuman treatment, section 8(1) Constitution. The regular assaults clearly constitute torture, inhuman and degrading treatment. Applicant has a clear right to personal safety and security. It is this court's finding that this right has been breached and there is still a threat that it will be continued to be breached. The applicant has made out a case that she was assaulted regularly. The regular intervention by their families did not bring to an end the assaults. In these circumstances she is entitled to the interdict and this court therefore grants the applicant's prayer for the interdict

16 On the question of the custody of their minor son, the tender age of that boy

demands mother's care. As a general rule, very young children are expected to be taken care of by their mothers, Hahlo and Khan - Husband and wife. The parties in this case live separately, pending the institution of proceedings for legal separation. The court recognises that there is a need to cause minimal upset and disturbance brought about by changes and movement from one parent to the other, of this minor child. However it will be in the best interests of the minor to be in the mother's care and custody.

Even though the 1st respondent claims to be taking good care of the little boy shortcomings have emerged. The little boy had been ill and was not eating well. Both respondents did not detect this condition. The boy started losing weight. They were still not perturbed by that. In fact 1st respondent claims that the boy must lose weight because he is growing up. He seems to be creating an impression that growing up is a vigorous work out which necessarily must take away some weight from a growing up child. The mother, this applicant, visited him at nursery school and immediately noticed that the child was not well. The child was taken to the doctor by both parents. This was not agreed to easily. It was brought about by an intervention of the applicant's attorney. 1st Respondent was not agreeing to take their son to the doctor. He cooperated in order to please applicant and her attorney.

17 He is not definitely acting in the best interest of the minor child. The medical

report bears out that the boy had tonsilitis. Both respondents seem not to be sufficiently observant to see to the needs of this little boy. It is not in the best interests of this minor child to be in the custody of those people who are not sufficiently sensitive to its needs. They failed to notice that the minor was not well because they do not perhaps have enough time to pay particular attention to its needs.

1st respondent appears reluctant to respond to family needs unless he is asked to do so. He lacks initiative. He ignores even his parental duties. Although he went along with the applicant to take their son to the doctor, after consultation and treatment of his son, he did not pay the doctor. His excuse is that he was not asked to. If he can only react when asked, the boy is so young that he cannot keep asking him if he needs anything. A brief interview, I conducted with the child, had to be that brief because he did not talk. He could not tell me his name or indicate to me by pointing out or mentioning a name of his mother. He is much too young to do what his father expects of him. He needs his attentive mother's care. 1st respondent is unable to take care of such a young child. That makes him an unfit parent. It would not be in the best interest of that child to be in the care of and custody of the parent, who wants it to ask for things he wants, or else it gets nothing. The boy was in his sole care but he failed to detect that the boy was ill. Had the mother not

18 visited him at school what could have happened?

A great deal was being made of his admirable facilities; such as taking the boy to school by step-mother's private vehicle. Therefore before he can go to the car, the minor child must eat well, he must be healthy. These requirements must be given special attention. While it is in its mother's care the father must provide adequate maintenance so as to continue to provide the boy with those admirable facilities.

The custody of the minor son is granted to the mother

1st respondent is employed full-time. He denies that he did not maintain applicant and the minor adequately. Now that they live apart, payments monthly of the maintenance as requested, will support his claim that he is the man who cares and looks after his family. He does not in any way plead inability to support his wife and child. He does not complain of his inabilities. He merely insists that they should live together. Because of his behaviour his wife, applicant, cannot be compelled by being denied maintenance payment, to live together with him in the prevailing unwholesome circumstances. It is 1st respondent by his behaviour who has forced this applicant to get out of the matrimonial home. Once the parties commence to live separately, the husband must pay maintenance. Although the parties have

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reciprocal duty of support, the 1st respondent is the one employed. Applicant is full-time house wife. All her time will now be devoted for looking after the minor child. This court grants the applicant's prayer to maintenance for herself and the minor child.

It is this court's order that the husband who is the only one in full-time employment, should contribute towards the wife's costs in these matrimonial matters. The applicant is not employed. She does not earn any income. It is therefore her husband who has the responsibility to provide that financial support. 1st respondent is ordered to contribute towards his wife's costs of this action

It was for these reasons that I confirmed the Rule as prayed.

K.J. GUNI JUDGE.

25th August 1999

For Applicant : Ms Tau
For Respondents : Mr. Nthethe