CIV/APN/398/92
IN THE HIGH COURT OF LESOTHO
In the matter between:
PASEKA SOULS FIRST APPLICANT
'M'ATHABO SOULS SECOND APPLICANT
AND TUMANE LEBITSA RESPONDENT
Before the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 18th day of May, 1993.
For the Applicants : Mr. S. Peete
For the Respondent : No appearance
JUDGMENT
Cases referred to:
Van der Westhuizen v Engelbrecht (1942) OPD 191;
Gerber v Gerber (1928) W.L.D. 300;
Pretorius v Pretorius (1948) 4 SA 144 (0);
Willenburg v Willenburg (1909) 3 Buch AC 409;
Van Erk v Holmer (1992) 2 SA 636 (W);
F v L & Another (1987) 4 SA 525 (W).
The notice of motion in this matter seeks an order partly in the following terms:-
"1.That a Rule Nisi do hereby issue calling upon the
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Respondent to show cause, if any, on a day to be appointed by this Honourable Court, why:-
The purported civil marriage solemnised between Respondent and 'MATHABO SOULS on the 16th February, 1988 shall not be set aside on the ground of lack of parental consent;
The custody of the minor child MOLEBOHENG SOULS shall not be awarded to the mother 'Mathabo Souls;
Respondent shall not be ordered to return to 'Mathabo Souls all her personal clothing and effects:
Respondent shall not be restrained from molesting or otherwise interfering with 'Mathabo Souls;
That prayer l(d) operate with immediate effect as an interim order....."
A rule was granted by the Court and thereafter confirmed on 28th April, 1993 for reasons which now follow.
The first applicant, the father of the second applicant, in his founding affidavit deposed that his daughter was born on 16th
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November, 1971. The affidavit was sworn on 11th November, 1992, at which stage his daughter was still a minor. The proceedings were filed on 17th November, 1992 however, when his daughter was a major.
It will be seen that the main prayer is one for a decree of nullity, due to lack of parental consent. If a minor marries without parental consent, the marriage is liable to be set aside at the suit of the aggrieved parent or parents: Voet 23.2.11 and see the host of authorities in Professor Hahlo's work, The South African Law of Husband And Wife 4 Ed. at p.91, n.39 (the 5th Edition at p.93 deals with statutory provisions not applicable in Lesotho). Professor Hahlo' observes (4 Ed.) at p.92 that
"After the erstwhile minor has attained majority, the right of the parents to have the marriage annulled comes, presumably, to an end."
One authority quoted in support of that proposition, with which proposition I respectfully agree, is the case of Van der Westhuizen v Engelbrecht (1) per Van den Heever J. As will be seen, the first applicant learnt of the marriage as late as June, 1992. I cannot say that a delay of five months in lodging the application was unreasonable and amounted to implied ratification (see Gerber v
Gerber (2)), In any event, the right of the first applicant's daughter to challenge the validity of the marriage
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arose with her majority. Upon application by Mr. Peete, there being no question of any unreasonable delay or ratification by the daughter, the Court ordered that she be joined as the second applicant (hereinafter referred to as "the applicant").
The applicant testified that she fell in love with the respondent when she was but 14 years of age. He was then aged 18 years and was a Trooper in the Police. Subsequently he abducted her. Her father did not agree to any customary marriage and came three times to collect her, without success however. Meanwhile she wished to go to boarding school and the respondent apparently persuaded her that he could only sponsor her education as her husband, and that he would need to show a marriage certificate to the school authorities.
She consented to the proposed marriage. When they approached the Deputy District Secretary, a marriage officer, he enquired as to her age. She gave her date of birth and he advised her that a letter of parental consent was necessary. She testified that she was afraid to go back to her parents, "as I knew they would not consent", she said. Thereafter the respondent, with her knowledge, forged a letter of consent from her father. "I didn't think it was right", she said, "I wanted to go home and finish school but he (the respondent) wouldn't allow me".
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The respondent then took the forged letter of consent to the Chief, who placed his official stamp thereon. Then, on 16th February, 1988, the applicant and respondent both approached the Deputy District Secretary, in the company of two witnesses, a cousin and a colleague of the respondent, who, the applicant testified, were also both aware that the letter of consent was a forgery.
I cannot say whether banns had been duly published. There is no entry as to such on the marriage register, for the relevant period, the register containing entries as to banns in only half the number of the marriages registered. No doubt the presumption of regularity
operates. In any event, the applicant and respondent were married by the Deputy District Secretary. The marriage certificate placed before the Court records the applicant's age as 17 years, which was not correct, as she was then aged 16 years and 3 months. The respondent is recorded as being 20 years of age and he apparently produced a letter of consent from his parents, the certificate indicating that both parties were married with "Parents & Own" consent.
The Deputy District Secretary, now District Secretary, gave evidence. He conducted a search of his offices, but regrettably the file containing parental consents for the relevant period was nowhere to be found. He. testified however that, as the
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certificate indicates, a letter of consent must have been produced and that he was apparently satisfied as to its validity.
Thereafter the applicant went to boarding school. Subsequently, in June 1989, she gave birth to a female child, Moleboheng.
At some stage marital difficulties arose and the respondent assaulted her. She became afraid of him when he said that they would never part and that only death would part them. She then left him and returned to her parents' home. The father had meanwhile learnt of the birth of the baby. He was not aware of the marriage, however, until the return of his daughter to his home.
The respondent entered no appearance in these proceedings and did not attend the hearing at any stage.
In the case of Van der Westhuizen (1) Van der Heever J. held that a marriage by a minor without consent was not just voidable but was null and void. In the case of Pretorius v Pretorius (3) he held however' that a minor who continued to live with the other party as man and wife, after attaining majority, was estopped from seeking a decree of nullity, thus, as Professor Hahlo ibid
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at p.94 puts it. "tempering the chill wind of nullity both to the minor lamb and the major wolf".
The learned author observes at p.93 that it is probably true that the clandestine marriage of a minor was regarded as null and void under Roman-Dutch law, but that this does not justify the conclusion that the marriage was null and void "in the modern sense".
Indeed he considers the relevant dicta of Voet 23.2.11 and 24.2.15 as being indicative of the fact that nullity was regarded "as a relative, and not an absolute, one". Professor Hahlo in any event observes that, whatever be the content of the old law in the matter, there appears
"scant reason for departing now from a rule which has been consistently followed in South Africa since Willenburg's case (4),
and which has worked well. In view of the serious consequences of an annulment, the tendency in modern legal systems everywhere is to treat defective marriages as voidable rather than void unless some vital principle of public policy is involved."
In the present case the marriage is clearly voidable at the suit of the applicant. It cannot be said that by her behaviour she ratified the marriage after reaching majority: she had already left the respondent before she attained majority. She has in effect sought, and I cannot see that she can be denied the exercise of the Court's declaratory powers. In all the
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circumstances therefore I declare the marriage to be null and void ab initio.
There is no evidence before me that the letter of consent of the respondent's parents to his marriage was other than valid. otherwise it could be said that the marriage was out of community (Hahlo ibid at pp. 97/98). If one of the minors marries with consent, and the other without. Professor Hahlo observes at p.98 that
"the former will presumably have to be treated as the major spouse, but it is also arguable that, as in the preceding case, the marriage will be out of community."
In any event, Professor Hahlo observes at p.95 that
"Our Courts have cut the Gordian knot by declaring the marriage to be in or out of community according to whatever happens to be to the advantage of the minor at the time of the marriage or, possibly, at the time when the matter comes before the court. Where the minor spouse is, actually or prospectively, the wealthier party, community will be excluded. Where the roles are reversed, it will take place...... Where the wife is the minor spouse and the court decides that community should be excluded it will generally exclude the husband's marital power as well."
The applicant seeks only the return of personal clothing and bedding and educational books all of which she listed in her
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evidence, testifying that they were her personal property. The essential effect of the above dicta, in any event, is that the applicant is entitled to recover what she brought into the marriage. I order therefore that the items listed by her be restored to her.
It is quite clear that the applicant was fully aware of the need for parental consent, and therefore of the impediment to her marriage. I do not accept her evidence that the respondent would not allow her to go back to her parents. At that stage the relationship was a happy one. When the relationship "became sour", as she put it in an affidavit, when he began to assault her, she found no difficulty in leaving him and indeed in taking the child with her. Quite clearly she could have left him also in 1988. I cannot see that there was any question of intimidation or duress in the matter. As I see it, she entered into the marriage voluntarily. It cannot be said that she did so in good faith. It cannot then be said that the marriage was a putative marriage. Indeed it would seem that a clandestine marriage, e.g. one entered into without parental consent, can never be a putative marriage - see Professor Hahlo ibid 5 Ed. at p.113 n. 84.
There can then be no question of declaring the minor child of the marriage to be legitimate. One of the unfortunate effects .
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of a decree of nullity, is that the children of the marriage are rendered retroactively illegitimate. Professor Hahlo observes ibid p.491 n.56 that
"This is clearly inequitable. Since the children were legitimate at the time they were born they should remain so despite the fact that the marriage is subsequently annulled."
Those observations are in effect repeated ibid 5 Ed. where Professor Hahlo states at p.109 that, "In England and elsewhere, there has never been any doubt that at common law the annulment of a voidable marriage renders children born of it illegitimate, and it required legislation to change that." The learned author observes further (4 Ed. at p.491) that Zimbabwe (under section 15 of the Matrimonial Causes Act, 1963) remedied the position, in keeping with English precedent, which precedent, I observe, dates back to 1949 (section 4 of the Law Reform (Miscellaneous Provisions) Act, 1949). Indeed, under section 16 of the Matrimonial Causes Act, 1973 of England & Wales, the position now, in respect of a decree of nullity granted after 31st July, 1971, is that the decree operates to annul the marriage "only as respects any time after the decree has been made absolute", and the marriage is treated as if it had existed up to that time. That, I respectfully observe, is a statutory precedent worthy of emulation.
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In any event, in the present case, the resulting situation is that custody vests in the mother. As to access, the Roman, Roman-Dutch, South African, Commonwealth and American authorities were surveyed by Van Zyl J. in his learned judgment in Van Erk v Holmer (5) (see the article thereon by Martin Kriegler in De Rebus, July 1992 p.457). The judgment is full of illuminating comment, from which I select the following passage by Professor Boberg ("The Sins of the Fathers - and the Laws Retribution", (1988) 18 BML 35-8) quoted by Van Zyl J. at p.643:
It is understandable that, where custody and guardianship are in issue, regard should be had to the legitimacy of the parents'
relationship. Since in our practice it is considered undesirable to share these rights between the parents, a contest for them is inevitable. And authority decrees that the mother should win that contest. But access is not the subject of a contest. It is the booby prize awarded to the loser in the competition for greater rights. It is little enough to give him. Properly exercised, it is essential to the child's normal emotional development. And it should not be withheld merely because the parents were not married, or the custodian and her johnny-come-lately new spouse - who really has nothing to do with the matter at all - want the child all to themselves.'"
After an exhaustive and compelling survey of the authorities, which I respectfully and gratefully adopt, Van Zyl J. concluded at
pp.649/650:
"Perhaps one of the strongest motivations for an improvement in the legal position of the unmarried father is what is perceived as
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the gross injustice which occurs when a father is compelled to pay maintenance for a child whom he may never be able to see or visit, despite his being prepared to commit and devote himself entirely to the interests of the child. This is not simply a plea for a quid pro quo but a proper recognition of a biological father's need to bind and form a relationship with his own child and the child's interest that he or she should have the unfettered opportunity to develop as normal and happy a relationship as possible with both parents. This is not only in the interest of the child but it is in fact a right which should not be denied unless it is clearly not in the best interests of the child.
In view of the aforegoing considerations I believe the time has indeed arrived for the recognition by our Courts of an inherent right of access by a natural father to his illegitimate child. That such right should be recognised is amply justified by the precepts of justice, equity and reasonableness and by the demands of public policy. It should be removed only if the access should be shown to be contrary to the best interests of the child."
I respectfully agree with and propose to adopt those dicta. In the present case the applicant has not sought maintenance of the child, but that is not to say that the respondent has been unwilling to support the child. There is simply no evidence either way. In any event, as Van Zyl J. observes, in agreement with Harms J. in F v L and Another (6) at 527, a right of access is not a quid pro quo for the payment of maintenance. Suffice it to say that the applicant has not led any evidence to show that access by the respondent would be contrary to the best interests of the child. I accordingly grant custody of the minor child Moleboheng to the applicant with reasonable access to the
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respondent.
In all the circumstances, for those reasons, I confirmed the rule with costs to the applicant.
Delivered at Maseru This 18th Day of May. 1993.
B.P. CULLINAN
CHIEF JUSTICE
