CIV/T/244/81

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

XAVERI
QHOBOSHEANE Plaintiff

v

'MAALALIA
QHOBOSHEANE Defendant

JUDGMENT

Delivered
by Hon. Mr. Justice F.X. Rooney on the 2nd day of August, 1982.

Mr.
Magutu for the Plaintiff Mr. Moorosi for the Defendant.

On the
10th May, 1978, the plaintiff married the defendant in the Roman
Catholic Church of St. Michael's at Boinyatso in the Maseru
District.
According to the Marriage Certificate, the defendant gave her name as
Johanna Kotelo and her condition as that of a spinister
aged 20
years.

On the
26th August, 1981, the plaintiff issued a summons against his wife
seeking various forms of relief including a decree of
divorce on the
grounds of the defendant's adultery, an order that the defendant
should restore conjugal rights and failing compliance
therewith a
decree of divorce and in the further alternative an order declaring
the marriage null and void. The plaintiff's declaration
contained the
allegation that unknown to him the defendant had been married by
Sesotho custom to Ts'eliso Shakhane and had lived
with him for 5
years.

In her
plea, the defendant denied the desertion and the existence of any
previous marriage, but, she

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admitted
that Ts'eliso Shakhane had abducted her in December 1976. She
admitted the adultery and asked for its "condonation".

When the
matter came up for trial on the 14th June, the defendant abandoned
her plea and the plaintiff elected to proceed on the
grounds that the
marriage was a nullity.

The Court
heard the evidence of the plaintiff and Tseliso Shakhane and is
satisfied that the defendant married the latter in 1977
and that
portion of the bohali was paid. The couple lived together for 8
months. The defendant then disappeared from her husband's
home. In
1978 Tseliso learned that his wife had married the plaintiff The
plaintiff on his part stated (and I have no reason to
disbelieve him)
that at the time that he entered into the civil marriage, he was
unaware that the defendant had been previously
married by custom.

The
defendant is therefore a polyandrist a condition which is not
permitted either under the civil law or Sesotho customary law.
As
Mofokeng J. put it in Masupha v Masupha CIV/A/14/76 unreported) in a
judgment dated 15th February, 1977

"In Lesotho a man having validly married according to custom is
free to marry as many wives thereafter as he chooses. The
very nature
of the marriage allows him to do that. This situation is only
applicable to a man but not to a woman. (Poulter : Family
Law and
Litigation in Basotho Society, 1976 ed. pages 209 - 210 and
authorities quoted therein.) In Sesotho custom a woman cannot
validly
have two husbands. Until a customary marriage has been dissolved, it
remains in force. Polyandry is not recognised in Sesotho
custom. (See
Native Law in South Africa, 2nd Ed. P. 125)".

Apart
from the above, it is clear that the defendant practised a fraud on
the plaintiff when she failed to disclose to him that
she was a party
to a pre-existing customary marriage which still subsisted. I accept
that if the plaintiff had known of the true

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position
he would not have proceeded with the civil marriage. Although e
husband must take his wife as he finds her, he is entitled
to assume
that she is not married to anyone else. The defendant's position is
analogous to that of a woman who has been guilty
of antinuptuel
stuprum and is pregnant as a result. The plaintiff acted on the
mistaken assumption that his wife was single. In
my view his mistake
is sufficiently fundamental to amount to an operative error
qualitatis rendering the marriage voidable at his
instance.

The most
unforutnate feature of the case is that there was one child of the
"marriage"namely Christopher. The plaintiff
is happy to
leave his son with his mother but, I have indicated to the attorneys
of the parties that the matter cannot be disposed
of quite so easily.
This Court must be satisfied that the defendant is in a position to
provide this young boy with a home and
a future. I was concerned to
learn from Ts'eliso Shakhane that he takes the view that the child is
his according to Sesotho Law.
Until such time as he asserts his claim
it cannot be entertained. However, I have no assurance that the
defendant will be in a
position to resist an action by her real
husband if the child remains in her custody. Whatever order is made
in regard to the custody
of Christopher, it must take into account
the best interests of the boy and I am prepared to consider further
evidence on this
issue at a later date.

F.X.
ROONEY

JUDGE

2nd
August, 1982.

Attorney
for the Plaintiff : Mr. Manutu,

Attorney
for the Defendant : Legal Aid Counsel.