CIV/APN/139/89

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

'MAMAHASE
MAHASE (nee Mosoang) Applicant

and

THABISO
VICTOR MAHASE.......... 1st Respondent

PRESIDENT
- MAJARA LOCAL COURT... 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 27th day of February, 1990.

On 19th
June, 1989, the applicant herein filed with the Registrar of the High
Court a notice of motion in which she moved the court
for an order
framed in the following terms :

1. "That
   the case No. CC 68/89 of Majara Local Court to be heard on 21st
   June, 1989 be removed to the above Hon. Court where
   it shall be
   heard and dealt with;

   
   

2. Further
   and or alternative relief.

   
   

3. Costs
   of suit."

   
   

Although
they ware duly served with the motion papers the Respondents have not
intimated intention to oppose this application. It
may, therefore, be
savely assumed that they are prepared to abide by whatever decision
the court will arrive at.

The facts
that emerge from the founding affidavit are that in April, 1980 the
applicant and the first respondent who are the residents
of
Khubetsoana in the district of Maseru got married to

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each
other in accordance with Sesotho Law and Custom. The marriage still
subsists and three (3) children were born of the; marriage.

In 1986
the first Respondent developed a habit of drinking excessively,
assaulting the applicant and sleeping away from the matrimonial
home.
Consequently on 2nd October, 1988, the applicant, left the
matrimonial home and went to live at her maiden home. She took
with
her the minor children of the marriage. Wherefor , the first
Respondent sued her (under CC 68/89) before the Majara Local
Court
for the dissolution of the marriage concluded between them.

The
applicant then instituted the present application for the relief set
out in the notice of motion. The grounds upon which the
applicant
relies for the relief sought in the notice of motion are that she
intends to defend the action and counter claim against
the first
Respondent. In addition the applicant avers that ever sines she left
the matrimonial home the first Respondent, who is
a business man
and, therefore, able to maintain her and the minor children of the
marriage, has failed to afford her and the children
adequate support.
She intends, therefore, to ask, in her counter claim against the
first Respondent, for an order of maintenance
for herself and the
minor children, as well as for the custody of the children, all of
which reliefs the local court has no jurisdiction
to grant.

It cannot
be seriously argued that a civil action for the dissolution of a
marriage concluded in accordance with Sesotho Law and
Custom is
within the jurisdiction of the local and central courts. That being
so, S.6 of the High Court Act, 1978 clearly provides:

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"6. No civil cause or action within the jurisdiction of a
subordinate court (which expression includes a local or central

court) shall be instituted in or removed into the High Court save .-
(a) by a Judge of the High Court acting by his own motion.

or

(b) with the leave of a judge upon application made to him in
chambers and after notice to the other party." (My underlining)

By the
use of the word "shall", it seems to me that the provisions
of the above cited section are imperative. Granted
that an action to
dissolve a customary law marriage is within the jurisdiction of the
Local and Central Court, it necessarily follows
that it cannot be
instituted in or removed into the High Court subject. of course, to
the provisions stipulated under paragraphs
(a) and (b) of section 6
of the High Court Act, 1978.

On the
papers before me, it is clear that the 'applicant seeks the removal
of Civil case No. CC 68/89 from Majara Local Court to
the High Court
and makes reliance on the provisions of S.6(b) of the High Court Act,
1978 which empowers this court with the

discretion
to do so. Such discretion must, however, be: always exercised
judicially and not whimsically.

As it has
already been pointed out earlier, the grounds upon which relief, in
terms of S.6(b) of the High Court Act,; supra, is
sought is firstly
that the applicant intends to defend the divorce action instituted
against her by the first Respondent and counter­claim
, secondly
the applicant intends applying for an order compelling the first
Respondent to maintain her and the minor children of
the marriage as
well as for the custody of the children.

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As
regards the first ground there is no doubt in my mind that if she
intended to defend the divorce action (CC 68/89) instituted
against
her by the first Respondent, the Majara Local court, which is a court
of law, would afford her the opportunity to do so.
Assuming the
correctness of her averment that she intends counter claiming in
CC.68/89 it seems to me what the applicant really
wants to do is to
contend that she, and not the first Respondent has ground for
divorce. The relief sought by the latter in the
above mentioned case
(CC.68/89) should, therefore be granted to her.

In her
counter claim the applicant will, in effect be instituting, against
the first defendant, another civil action for the dissolution
of
their customary law marriage which action, as it has already been
stated, is within the jurisdiction of the local and central
courts.
The removal of CC.68/89 from the Majara Local to the High Court
cannot in my opinion be justified on the first grounds
relied upon by
the applicant.

Coming
now to the second grounds viz. custody of the children and
maintenance, it is significant that Section 34(5) of Part II of
the
Laws of Lerotholi provides in part :

"(5) A court granting dissolution of such a marriage shall make
an order regarding the retention or return of "bohali",

cattle, and to whom the children, if any, shall belong ....."
(My underlining)

I have
underscored the word "shall" in the above cited Section 34
(5) of Part II of the Laws of Lerotholi to indicate
my view that upon
the dissolution of a customary law marriage the court must decide,
inter alia, with which of the two parents
the children will remain.
Where a local court is already seized with

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a civil
action for the dissolution of a customary law marriage I do not,
therefore, consider it proper for the High Court to exercise
its
powers under section 6 of the High Court Act, 1978 simply to pre-empt
the decision which the former court is, in law, bound
to make.

As
regards the question of maintenance of the applicant I fail to
understand how the first Respondent can be legally liable to pay

maintenance fee for her after the dissolution of the marriage. He
will, of course, always have a duty to maintain the minor children
of
the marriage. However, action for such maintenance is triable before
the magistrate courts which the applicant is free to approach
at any
time. It seems to me, therefore, there is no need for the applicant
to have CC.68/39 transferred to the High Court simply
to obtain an
order compelling the first Respondent to maintain the minor children
of the marriage.

from the
foregoing, it is obvious that I am not convinced that, on the papers
before me, the applicant has established a case for
the removal of
CC.68/89 from 'Majara Local to the High Court.

I would,
in the circumstances dismiss this application.

B.K.
MOLAI

JUDGE.

27th
February, 1990.

For
Applicant : Mr. Monaphathi

For
Respondent :