IN THE HIGH COURT OF LESOTHO
In the matter between:-
KHOTSO MPASA PLAINTIFF
‘MATLEO RANOKA 1ST DEFENDANT
‘MAPUSELETSO MASAKALE 2ND DEFENDANT
REV. ERNEST MOLEFI MASIA 3RD DEFENDANT
Delivered by the Honourable Madam Justice M. Mahase
On the 18TH May , 2011
Civil Procedure – Husband and wife – Customary and Civil Law Marriages – None disclose by 1st defendant of a previous customary law marriage – Whether or not such none disclosure a ground for annulment of a subsequent civil rites marriage – 1st defendant’s 1st husband having died when civil marriage was contracted between plaintiff and first defendant – Effect of payment of bohali – Absolution from the instance.
The facts of this case may be summarized briefly as follows:-
The plaintiff and first defendant were married by civil rites on the 21st November 2007. Plaintiff and the defendant are members of the International Pentecost Holiness Church, whose headquarters is situated at Zwinbekom, plot 615, 4th Street 1787 in the R.S.A.
The 3rd defendant who is a pastor of the Maseru or Lesotho branch of this church played an important part in the preparations and subsequent marriage of the plaintiff and the first defendant. This is in accordance with the rules or norms of this church – vide annexure “E” of the plaintiff’s declaration. This practice of this church is against the laws of this country, which laws govern marriages.
I must mention at this stage that the involvement of this church through the third defendant into the pre arrangement of the marriage between the plaintiff and the first defendant is of no consequence to the laws governing civil or customary marriage in this country. I will therefore not dwell on such involvement by this church and its members in the preparations leading up to the actual marriage of the parties herein.
Suffice it to mention that sometime after the bohali in the sum of M3,000.00 (three thousand maloti) was ultimately paid to the first defendant’s mother the second defendant, and after the actual solemnization of the parties marriage at the District Administrator’s office in the district of Maseru, the plaintiff got to know that prior to their marriage, the first defendant had been married to one Ts’itso Ranoka by customary law rites marriage and that Ts’itso (first defendant’s husband) had since died.
When the plaintiff discovered this fact, he and first defendant had been living as husband and wife at some rented place at Morija from were the first defendant was gainfully self-employed and the plaintiff had given to her as his newly married wife property which appears at paragraph 3 of the plaintiff’s summons and declaration.
The plaintiff is now before this Court claiming or asking this Court to declare the civil marriage in question which took place at the D.A’s office and later solemnized at the above- shown church to be null and void ab initio.
The plaintiff alleges that when they were preparing and when the said marriage actual took place, he did no know that the first defendant had previously been married by or to one Ts’itso Ranoka by customary marriage. In fact he says he did not even know before then and that had he known about this fact before, he would not have entered into this marriage with the first defendant.
Put conversely, he alleges that the first defendant has intentionally withheld this material fact from him and as such the first defendant has fraudulently misrepresented to him that she was a spinster.
Plaintiff’s case as regards defendants numbers two and three is based on the ground that the third defendant induced him (plaintiff) to marry the first defendant due to the research which was conducted by the third defendant as per rules and directives of their church.
He alleges that subsequent to that research and representations made by the third respondent to the head office of their church, he paid lobola on the sum shown on annexure “E” to the first defendant’s mother. It is his case, that had it not been for the involvement (fraudulent) of third defendant, he would not have married first defendant, nor would he have paid the said amount of money for first defendant’s marriage to him.
Of course plaintiff has asked this court to award costs of suit to him and has also asked court to grant him a further or alternative relief. The defendants have entered appearance to defend this case. In brief first the defendant’s defence is that of denying that she withheld the fact that she was previously married from the plaintiff. She says that she considered herself no longer married to the late Ts’itso Ranoka to whom she was married by customary rites; but who has since died.
In order words, the first defendant avers that she became emancipated and free to re-marry after her former husband’s death. She says therefore, she did not lie to plaintiff when she said that she was not married at the time of their marriage at the D.A’s office on the 23rd November 2007.
Plaintiff and first defendant have indeed joined issue on the fact that the first defendant did not disclose to plaintiff her true status when they entered into marriage on the above-shown date in November 2007. The first defendant explains her none disclosure of this fact by qualifying it. She says that she did not disclose this fact for the simple reason that, it was because at that time when she married the plaintiff, her former husband had since died, so that she was free to remarry.
However, the plaintiff alleges that the first defendant deliberately withheld this fact of her previous marriage from him because first defendant knew by all intends and purposes that she remained a daughter –in-law of the Ranoka family.
Plaintiff insists that the first defendant’s former customary marriage to Ts’itso Ranoka was still in subsistence. He introduced the evidence of the first defendant’s parents in law who told this Court that indeed the first defendant is still married to their late son Ts’itso Ranoka. Their evidence is further to the effect that they still consider the first defendant their formal daughter-in-law and that the first defendant should have come to ask for their permission to re marry.
In fact first defendant’s father-in-law-; Ts’itso’s father has even already informed the plaintiff and all those who have been instrumental in bringing about the marriage between the plaintiff and the first defendant that he claims from them payment of lobola or bohali to him since being his daughter-in-law, and for whom he had paid bohali previously, he is entitled to such payment of bohali when his daughter-in-law remarries. Vide annexure “B” page 13 of record.
The first defendant, maintains that upon or after the death of her husband, Ts’itso, she became answerable to her maiden family; hence why the bohali or lobola for her subsequent marriage to plaintiff was correctly paid or taken to her own mother, the second defendant.
The fact that the first defendant had made a representation that she was not married on the day that she and plaintiff got married at the D.A’s office is buttressed by the fact that the first defendant has been described as being a spinster and not as a widow. Vide annexure “A” herein. She has been so described because of the information she has given to the marriage official who solemnized their said marriage.
The plaintiff argued that in fact, the first defendant has lied both to him and the official marriage officer when she represented on the day of their marriage that she was a spinster. It is his evidence that because of this deliberate misrepresentation as to the first defendant’s status or condition, he went ahead to marry her. That had he been informed otherwise, he would not have proceeded with or he would not have contracted this marriage with the first defendant.
I pause to observe that the fact that the first defendant was still considered to be the wife of Ts’itso Ranoka and so, a daughter in law of the Ranoka family is buttressed by annexure “C” at page 15 herein.
Neither first defendant nor the second defendant have gainsaid contents of that letter; which letter was written by the chieftainess of Ha Nts’ohi where first defendant’s parents in law reside. Annexure “D” – page 17 is a written agreement showing that the Ranoka and Masakale family entered into an agreement for payment of bohali on the 30/03/1997 when first defendant and her late husband got married.
The issues for determination by this Court are whether or not the marriage between Ts’itso Ranoka and Matleo Ranoka (born Masakale) still subsist even after the death of Ts’itso) thereby impeding the second marriage from being contracted.
It must also be indicated that, after the plaintiff has closed his case, an application for granting of absolution from the instance was moved on behalf of the first defendant.
It is trite that whenever such an application is moved ,the test applied is whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff. Vide H.J. Erasmus and A.M. Breitenbach: Superior Courts at 1b-292-293.
Having so submitted, it was argued that the issue to be also determined by this Court in the instant case is therefore; whether there is evidence upon which this Honourable Court, could or might find for the plaintiff.
It was submitted on behalf of the first defendant that 1st defendant could not be considered to have remained married to her former deceased husband. That the marriage to a deceased person is prohibited by the provisions for section 34 (3) of the laws of Lerotholi. Reference was also made to contemporary family law of Lesotho by W.C.M. Maqutu pp. 138-139 and 141.
It has, on the basis of the above cited authority been submitted on behalf of the first defendant that the first defendant did not have to ask for permission from her late husband’s parents in order for her to remarry.
This Court is presently not called upon to adjudicate or make a pronouncement as to the procedure which the first defendant should have adopted before she entered into marriage with the plaintiff. This Court will therefore not make any pronouncement or any declaratory order on same.
The issues which this Court has to determine are with regard to the application for absolution from the instance which has been moved on behalf of the first defendant. It is the considered view of this Court, with regard being had to the circumstances of this case, that the application for absolution has no basis or merit.
The fact that the first defendant has misrepresented her status to the marriage officer on the day of the solemnization of their marriage is a crucial issue upon which the plaintiff has based his case. That fact, viz – whether or not first defendant has deliberately misrepresented her status or condition can and should be determined before this Court finally disposes off this case.
It has not been denied by the first defendant, that had she been candid about her status or condition before that marriage was solemnized, plaintiff would not have married her. There is a difference between ones status of being a spinster and a widow.
In the concise Oxford English Dictionary a widow is described as being “a woman who has lost her husband by death and has not married again”.
This therefore means that after her husband’s (Ts’itso) death but before she remarried, the first defendant was described as a widow and nothing else.
A spinster, on the other hand is described therein as “an unmarried woman, typically an older woman beyond the usual age of marriage”.
A widower is described therein as “a man who lost his wife by death and has not married again”
There is no ambiguity as to the meaning of a widow, a widower and a spinster.
This is so in the Sesotho language.
It is on the above reasons that this Court has successfully been persuaded that the plaintiff has made a prima facie case against the first defendant and there is therefore evidence upon which this Court could or might find for the plaintiff.
The first defendant’s application for absolution is accordingly dismissed with costs to the plaintiff.
For plaintiff - Ms. Khesuoe
For first defendant - Mr. Ts’enoli
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