19 of 2003
THERESIA LEOMA RESPONDENT
Maseru on 26 March 2004
marriage - proof thereof - the onus on the person who alleges that a
putative marriage exists - the appellant failing to
the subsistence of his civil marriage to the respondent the deceased
Ephraim Ramotinyane Leoma entered into customary marriages
'Makhang Leoma and 'Matsepiso. The latter is the appellant's mother.
These two customary marriages were, however, declared
null and void
by this Court in case number C of A (Civ) 29 of 2000. The question
whether or not the marriages in question were
putative was remitted
to the trial court (Guni J).
time the matter was heard before Guni J, the appellant's mother
had sadly passed away. Evidently, it became an insurmountable problem
in the circumstances how the appellant was going
to prove whether or
not her mother 'Matsepiso knew of the nature of the pre-existing
civil marriage between the deceased and the
respondent and the legal
impediments it posed to 'Matsepiso's subsequent customary marriage.
'Makhang Leoma who gave evidence could
not take the point any further
other than to say that 'Matsepiso ''seemed to have been well
received" in the deceased's family.
It was nevertheless argued
on behalf of the appellant on appeal that a favourable inference must
be drawn from the mere fact that
'Matsepiso concluded a customary
marriage with the deceased and that she was in a similar position as
'Makhang Leoma who was able
to prove in the court a quo that her
marriage to the deceased was putative.
Held: That the onus was on the appellant to prove, on a balance of
probabilities, that there was a putative marriage between the
deceased and her mother 'Matsepiso and that she had failed to
discharge such onus.
Held, further, that in the absence of evidence to this effect, it
cannot be assumed or inferred that a person entering into a
union with the payment of 'bohali' would necessarily, or as a
probability, be under the impression or would conclude
previous civil marriage in the case of the other party existed.
accordingly, that the mere entering into a customary union does not
justify the finding that 'Matsepiso did not know that there was a
preexisting civil marriage between the deceased and the
respondent and that she did not know the legal impediments that
marriage posed to her own customary union.
Held, therefore, that the appeal is dismissed and that, there being
no appearance for the respondent, there shall be no order
C of A
(CIV) No. 19 of 2003
COURT OF APPEAL OF LESOTHO
Maseru on 26th March 2004
 It is
a matter of regret that polygamy in Lesotho continues to exacerbate
the problem of conflict of laws in this country. Such
turn arises from the fact that Lesotho has a dual legal system
comprising Roman-Dutch Law on one hand and Customary
Law on the other
hand. Now, it is a fundamental truism that the practice of polygamy
is a complete anathema to
Law while on the other hand it is perfectly in order in terms of
Customary Law. This fundamental distinction is however
apparent to the ordinary Mosotho in the street despite this Court's
ruling in numerous decisions that a civil marriage
side by side with a customary union. See for example Mokhothu v
Manyaapelo 1976 LLR 281. Makata v Makata 1982-84
LLR 29 at 32 (also
reported in 1980-84 LAC 198) and 'Makopano Theresia Leoma v Tseliso
Justinus Leoma and 'Machele Leoma C ofA
(CIV) No. 29 of 2000
 As is
evident from the last case cited in the preceding paragraph, this
matter has already been before this Court in case number
C of A (CIV)
No, 29 of 2000. In that case, this Court declared null and void the
customary "marriages" of one 'Makhang
Leoma, the mother of
the first respondent Tseliso Justinus Leoma in the Court below and
the appellant's mother 'Matsepiso, concluded
during the subsistence
of the respondent's own civil marriage to the late Ephraim
Ramotinyane Leoma ("the deceased").
The latter had lived
with the three women in a polygamous union. The full terms of the
order of this Court in so far as this appeal
is concerned were as
"(1) The application in CIV/APN/465/99 is granted and the
customary marriages of Ramotinyane Ephraim Leoma to 'Mamotiki Khauli
(alias "Makhang Leoma) and 'Matsepiso Lekhooe are hereby
declared null and void.
(2) The issue whether or not the Respondents' mothers knew of the
nature of the pre-existing marriage and of the legal impediments
posed to the deceased's subsequent customary marriages to them and
whether or not such marriages were, as a result thereof,
putative is remitted to the court a quo for investigation and
determination by way of oral evidence."
the matter came before Guni J in the High Court, evidence was duly
led on the narrow issue as directed by this Court. The
was none other than 'Makhang Leoma whose evidence, in a nutshell,
disclosed that she was only nineteen (19) years
of age when she was
abducted by the deceased. She subsequently escaped but the respondent
herself pursued her and brought her back
to the deceased's homestead
where a customary "marriage" was concluded between her and
the deceased as his second wife.
She remained completely unshaken in
her evidence that she acted in good faith and that she was not aware
of any legal impediments
to her "marriage" with the
Having seen and heard the witness 'Makhang Leoma, Guni J believed her
evidence and came to the conclusion that the marriage
between her and
the deceased was putative. She accordingly declared it as such. This
finding is fully justified on the evidence
and I may add that its
correctness has not been challenged.
 In so
far as the alleged "marriage" between the deceased and
'Matsepiso was concerned, Guni J came to the following
"As both 'MATSEPISO LEKHOOE and Ephraim Leoma are late, (sic)
There is no evidence except 'Makhang's belief, that their bona
were same. Her belief is not sufficient evidence that they were not,
aware that there were legal impediments. There is no
either. I cannot say similarly that their marriage was putative."
that finding that forms the subject matter of this appeal by the
appellant who is the daughter of 'Matsepiso.
 It is
pertinent to mention at this stage that the respondent has filed a
"Notice of Intention not to oppose Appeal".
does not, as it seems
relieve this Court from determining the merits and demerits of the
will be observed that, while there is conclusive evidence that the
marriage between the deceased and 'Makhang Leoma was putative,
case for the appellant stands on a completely different footing. As
Guni J correctly points out in her judgment, the appellant's
had sadly passed away when oral evidence was led in the court a quo.
Evidently, it became an insurmountable problem in the
how the appellant was going to prove the issue as previously defined
by this Court, namely whether or not her mother
'Matsepiso knew of
the nature of the pre-existing civil marriage between the deceased
and the respondent and the legal impediments
it posed to '
Matsepiso's subsequent customary "marriage".
the light of this predicament, a valiant attempt was made to lead the
required evidence from 'Makhang Leoma herself but to
no avail. For
example the following question was put to her by the appellant's
"Q: To your knowledge, did 'Matsepiso exhibit any knowledge or
suspicion that her own marriage may not be valid in law?
A: She seemed to have been well received."
It is, in
my view, hardly surprising that the witness 'Makhang Leoma could not
take the point any further in as much as the issue
as defined by this
Court clearly envisaged subjective knowledge on the part of
'Matsepiso herself. It is she who would be in the
best position to
tell the Court whether or not she knew the nature of the pre-existing
civil marriage between the deceased and
the respondent and of the
legal impediments the marriage in question posed to her subsequent
customary marriage. That in itself,
as it seems to me, clearly
entails proof of the state of mind of 'Matsepiso herself on the
may be convenient at this stage to refer to the following ground of
appeal filed on behalf of the appellant :
".....the learned Judge ought to have held that in the absence
of evidence that 'Matsepiso knew that there were any impediments
her marriage brought about by the fact of Ephraim having previously
married the respondent by civil rights, she would not hold
marriage was not putative."
view, there are two short answers to the appellant's contention.
it was clearly not within the terms of the directive of this Court as
fully reproduced above that anybody (let alone the
prove the negative as suggested in this ground of appeal. On the
contrary, the onus was on those who alleged
that there was a putative
marriage between the deceased and 'Matsepiso to prove it on a balance
of probabilities. This, in my view,
the appellant has failed to
discharge. In this regard it is instructive to note that there is no
evidence as to the background
and mode of living of 'Matsepiso. Nor
is there evidence that (unlike 'Makhang Leoma) she was too young at
the time of her "marriage"
to the deceased to know the
legal impediments created by the pre-existing civil marriage between
him and the respondent. Secondly,
in the absence of evidence to this
effect, it cannot be assumed or inferred that a person entering into
a customary union with
the payment of 'bohali' would necessarily, or
as a probability, be under the impression or would conclude that no
marriage in the case of the other party existed.
Consequently, the mere entering into a customary union with payment
does not justify the finding that 'Matsepiso did not know
that there was a pre-existing civil marriage between the deceased and
the respondent and that she did not know the legal
that marriage posed to her own customary union.
the light of the aforegoing considerations, I am unable to find any
fault with the learned Judge a quo's approach on the
presented to her.
the appeal is dismissed. There being no appearance for the
respondent, there shall be no order as to costs.
I agree :
JUDGE OF APPEAL
at Maseru this 7th day of April 2004
Appellant : Adv. K. Sello K.C.
Respondent : No Appearance.
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