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CIV/T/418/90

IN THE
HIGH COURT OF LESOTHO

In the
Matter between

PAKI
MOAKI

AND

MOJABENG
MOAKI

JUDGEMENT

Delivered
by the Honourable Mr, Justice T. Monapathi Acting Judge of the High
Court on the 15th day of February 1994

On the
3rd February, 1994 Mr Snyman for Plaintiff and Mr. Matooane for
Defendant appealed before me Mr Matooane raised a question
of law as
to the jurisdiction of this Court to hear the plaintiff's claim,
without leave of the High Court, as argued in terms
of Section 6 of
the High Court Act No 5 of 1978 which provide as follows

"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 -

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1. by a
   judge of the High Court acting of his own motion, or

   
   

2. with
   the leave of a judge upon application made to him in Chambers, and
   after notice to the other party."

   
   

A
judgment of a Court which has no jurisdiction in the matter concerned
is of no effect A Judge may consider and decide whether
he has
jurisdiction to consider the matter brought before him.

It is a
fact that no Judge of the High Court of his own motion or on
application authorized the institution in or removal to the
High
Court of the present action in terms of section 6 of the High Court
Act.

The
Plaintiff's claims are framed as follows

"1 An Order declaring the marriage entered into between the
parties on 21st April 1961 to be null and void ab initio,

2. Costs
   of suit,

   
   

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2. Further
   and/or alternative relief."

   
   

It is
correct that this matter was not raised in the papers as can be seen
in the Defendant's plea. Mr, Matooane said that he was
entitled to
raise the question in this way he has done without application and
without notice by virtue of the special character
of the objection,
that is to jurisdiction, which Mr. Matooane said can be raised at any
time before judgment and can also be raised
on appeal for the first
time, I am aware that there is no need to raise this question in ones
papers the way one would do with
other objections or pleas. I do not
agree with Mr. Snyman's submission that the objection need only be
pleaded and on notice. The
instant situation is not that which one
could be said to have consented to jurisdiction, as in the
Magistrate's Court, where one
would therefore be prevented from
raising the matter on appeal as has been held in some cases (see
CARABOROS vs PRETORIUS 1950
(1) SA 348 (TM.

It is
common cause that the parties before this Court have also filed two
claims in this Court, one for maintenance and one for
division of the
joint estate In both claims the present Defendant was Plaintiff. Both
Counsels acceded to the "presumption"
that it was after the
two (still pending) matters were filed by the Plaintiff that one
party became aware of the existence of the
Defendant's alleged prior
marriage to one

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LEONARDO
CAMBELL, at the Magistrate's Court at Klerksdorp on the 23rd February
1953, which is alleged to be still subsisting and
not dissolved.

I observe
that the Hiqh Court is a Creature of Statute and has unlimited
jurisdiction in terms of the provisions of Section 2 of
the High
Court Act No.5 of 1978 as amended by Section 34 of the High Court Act
of 1984 The effect of this will be discussed later
in addressing the
aspect of limitation to the powers of the Court as against its powers
to regulate its own procedure.

Mr.
Matooane has submitted that in investigating whether this Court has
jurisdiction we need not be confined to the word declaration
but
should look further as to "over what the declaration is being
sought." In a similar manner as in the case of FLORINA
MANTIA
PAPALI NKO vs LIJANE NKO C of A (CIV) 14/91, where the Court of
Appeal was concerned with Chieftainship and succession to

Chieftainship, a declaration having been sought in the High Court. In
the instant matter we are concerned with a customary marriage
between
the parties We will come later in this judgment as to where we would
propetly think the jurisdiction of the matter, to
do with customary
marriage, should be looked for Suffice it to add that what is sought
to be declared null and void is the customary
marriage

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between
Plaintiff and Defendant as agajnst the marriage of Defendant and
LEONARDO CAMPBELL. It is from the point of view of the
validity of
the customary marriage, looked at from Defendant's side, because what
is at issue is the alleged polyandry of the Defendant.
A woman in
Sesotho custom cannot have more than two or more husbands (see
MASUPHA v MASUPHA 1977 LLR page 54).

Reference
was made to the Court of Appeal case THEKO MASOBENG vs MOTHAE THAANE
C of A (CIV) 14/92 in which objection was raised
(similar to the
present one) concerning the jurisdiction of the High Court "whether
or not an action for provisional sentence
was an action within the
jurisdiction of the Subordinate Court." The basis of the
objection was that provisional sentence
was being claimed on a sum of
M2,500.00 which sum was within the jurisdiction of the High Court.
The analogy being sought to be
drawn in the THEKO MASOBENG case was
on the basis of whether the remedy of a declaration was available to
the Subordinate Courts.
The learned Judge of the Court of Appeal
BROWDE J.A. in adverting to the matter had this to say "It seems
to me that the High
Court has jurisdiction to hear provisional
sentence matters in which any amount is claimed and that if the
jurisdiction was intended
to be removed or diminished by the
Subordinate Courts Order it would have to be clearly stated."

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Mr Snyman
contended that in as much as this Court has in its possession matters
which are incidentally or closely related to the
instant matter, it
would be absurd to have this matter removed to another Court and a
local or central court for that matter. He
submitted that the
resultant inconvenience is clear for all to see. Mr. Matooane's reply
was that, while he was sympathetic to
the pliqht of the Plaintiff,
who has a case in this Court, which case has to be thrown out, by
reason of having run out of Section
5 of the High Court, it means
that the Plaintiff should have applied for leave, first, before
filing his present claim in this
Court. This is correct. Has this
Court a jurisdiction in the matter? If not which Subordinate Court
has jurisdiction in this matter.
I do not agree with the submission
that the Laws of Lerotholi are a guide in this respect. It is the
Magistrate's Court (which
is also a Subordinate Court in terms of
Subordinate's Courts Act 1988) into respective provisions we have to
look. The Subordinate
Court Order of 1988 has repealed the
Subordinate Courts Proclamation of 1938 The new Order provides for
the Constitution of Subordinate
Courts, presided over by Magistrates
(Sec. 5) Section 29 declares matter which are beyond the
{jurisdiction of Subordinate Courts,
specifically Section 29 "are
matters" in which the dissolution of a marriage are separation
from bed and boaid or of
goods of married person is sought, save as
provided by any other law". Most clearly, then.

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there
cannot be any tesort to the Magistrate's Court. On the other hand,
the Central and Local Courts are established or recognized
in terms
of section 20 of proclamation No.62 of 1936 (as reprinted in volume X
of the Laws of Basutoland 1965 at page 186). Section
9 of the
proclamation provides for matters that shall be administered by the
Courts and specifically at section 9. They shall administer
"the
native law and custom prevailing in the territory, so far as it is
not repugnant to justice or morality or inconsistent
with the
provisions of any law in force in the territory. There should not be
anything more to say about the statutory provisions
as regards more
than that a Sesotho marriage is within the meaning of native law and
custom and so it the marriaqe between Plaintiff
and Defendant.

The onus
is on the Plaintiff to 9 how that the Court in which he sues has
junsdiction. Plaintiff has not even made an averment in
his summons
that this Court is possessed of jurisdiction. It is a bad summons.
Even if he had done that, that averment would only
be a conclusion of
law rather than an allegation of fact. There would still be need for
Plaintiff to put up such facts and state
why this Court does have
jurisdiction. As said before failure to take an objection to
jurisdiction nor the filinq of plea by Defendant
could not
automatically amount to acceptance jurisdiction where there is none.
What Plaintiff must establish is waiver by Defendant

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of his
right to ob]ect. There has been no waiver. I agree with Mr. Mattooane
that Defendant would be entitled even on appeal to
raise this
question for the first time.

This
Plaintiff's action is rather unfortunate in that there are other
actions by Defendant in this Court, which Mr. Snyman says,should

influence this Court to decide that this action necessarily belongs
to this Court This he said by analogy of incidental jurisdiction.
I
do not think I am persuaded. As it is said one should as a matter of
must, go over the hurdle of section 6 of the High Court
Act No. 5 of
1978, concerning the requirement of leave to sue in this Court.

I am
satisfied that this is not a situation such as where this Court is
dealing with its own rules which it can in terms of Rule
40(22) "
... make any Older with regard to the conduct of the trial as it
seems fit and it may vary any procedure laid down
in this Rule".
It is where limitations are imposed on the powers of the Court itself
by Section 5 of the High Court Act 1978
as distict from its inherent
jurisdiction to regulate its own procedure

From the
foiegoing, it is obvious that, I take the view that the Plaintiff's
action ought to be dismissed for the reason that it
has irregularly
come to this Court, I order

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that
each party shall bear its own costs.

T
MONAPATHT

ACTITSTG
JUDGE

For the
Plaintiff Mr, Snyman

For the
Respondent Mr. Matooane