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CIV/T/421/91

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

'MAMALULA
MOHALE (born Mahomo) Plaintiff

and

KHAHLISO
MOHALE Defendant

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi Acting Judge on the 18th
March, 1994

This is a
claim by the Plaintiff, "Mamolula Mohale born Mahomo against the
defendant Khahliso Mohale. In this civil summons
filed on the 15th
October 1991, the Plaintiff claims as follows:

1. A
   degree of divorce on the ground of defendant's adultery;

   
   

2. Forfeiture
   of benefits of the marriage;

   
   

3. Costs
   of suit;

   
   

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4. Further
   and or alternative relief.

   
   

I order
that there shall be a decree of divorce in favour of the Plaintiff.

This
claim was opposed. The Defendant has filed a plea in which he says,
he and Plaintiff had never gone through any civil marriage
or such
ceremony purporting to be a marriage. On the contrary the two went
through a religious ceremony to bless the long standing
marriage by
Sesotho law. I underline to bless. He goes further to say that on the
contrary, in 1988 Plaintiff had long left the
matrimonial home at
Lithabaneng on her own volition, and it recently came to Defendant's
knowledge that she had set a single home
at Ha-Ts'osane without any
mutual agreement between the parties, He goes further to say that
Defendant having stated the true status
of the marriage with the
Plaintiff, it follows that the co-habitation with another woman,
married under Sesotho law, is not adultery.
Defendant says he intends
to maintain his second marriage irrespective of the outcome of this
action. That is how the plea stands.

The
defence by the Defendant depends clearly on the proof by him of the
existence of the customary marriage preceding the parties'
marriage
of the 18th May 1979. In the marriage certificate Defendant says he
was a bachelor labourer. The District Administrator
of Maseru
conducted this civil marriage as against where a marriage would be
solemonized by a priest or

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in a
church. In order to comply with our understanding of the word bless
i.e. blessing being a requirement that the priests or the
church
would usually required their people to come before them when they
have contracted a marriage by custom, such marriage having
been
looked at as a bit unbecoming. (See cooments of Lehohla J in MOLOMO
MARAR vs MAMABELA MAJARA & ORS -CIV/APN/138.89 (unreported)

The
plaintiff brought in the evidence of a single witness that is the
Plaintiff herself. The plaintiff says that they stayed with
the
Defendant for a period of a month. During their stay there had not
been any prior customary marriage. He parents had not been
informed
of their staying together with the Defendant Subsequent to that
period of a month, as she does say, they then went to
the District
Administrator of Maseru where they contracted the civil marriage as 1
have said before.

The
Plaintiff has given a long tale of her movement from one place to
another; but what is underlined is that at about sometime
as she
says, the Defendant came to tell her that he had now contracted
another marriage with one 'Mapoulo, where as a result of
this
marriage, he now as he said had a new wife in the person of that
'Mapoulo. In the pleadings, this has been admitted by the
Defendant,
and this has been interpreted by the Plaintiff as being a basis of
her claim for a divorce based on that adultery. What
is important is
that since then the parties had been staying together, presumably the
Defendant came into

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this
second marriage as a result of the problems that they may have had
with the Plaintiff. It may also be true that, as at the
time of the
Defendant's engaging 'Mapoulo there was some kind of desertion going
on. My view is that if that desertion was in existence,
as soon as
the Defendant now contracted an adulterous associatione, that
desertion would be held to have ceased. It would mean
that the
Defendant has committed a marital offence.

What is
very clear is that when the Plaintiff was in the witness box, any
proof as to the existence of a customary marriage only
amounted to a
suggestion that an amount of R1,000.00 was paid. He says that
constituted Bohali. There are no other circumstances
described, which
would entitle one to arrive at a conclusion that in fact there was a
Sesotho customary marriage. I would as Mr.
Mathafeng has done, have
closed my case after the evidence of the first witness, on the basis
that even at this stage there was
no proof of customary marriage on a
balance of probabilities, There is a suggestion when the Defendant is
being asked by this Court
that this R1,000.00 constituted two head of
cattle. We do not have with us even a scrap of paper suggesting that
this was the agreement
or anything more. I have said that this has to
be proved on a balance of probabilities. Nothing in cross examination
of the Plaintiff
was addressed or indicated to the Plaintiff to
suggest what case he would have to meet in proof of Defendant's
customary marriage.
I am not persuaded that such a marriage has been
proved. What it means therefore, is that, logically this situation of
the

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Defendant
having lived with 'Mapoulo has now proved to be an adulterous
situation, I am not persuaded that whatever the Defendant
felt about
his conduct necessarily mean that no adultery has been proved. In
order to succeed indeed the Defendant had to prove
the existence of a
customary marriage. This, he has failed to do. I am convinced that
the Plaintiff should succeed in her claim
of divorce on the basis of
the adultery of the defendant with this 'Mapoulo. I further order
that there shall be an order of forfeiture
of benefits of marriage in
favour of the Defendant, I have already ordered that there be an
Order of divorce. I also order that
there be costs against the
Defendant.

T.
MONAPATHI

ACTING
JUDGE

For the
Plaintiff : Mr. Mathafeng

For the
Defendant : Mr. Mafantiri