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:

8

(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.

9

(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.

11

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

12
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

13
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

19

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