C OF A
(CIV) NO. 11 OF 1995

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

SENYANE
MPATI APPELLANT

AND

MANCHAFATO LEKAKA RESPONDENT

HELD AT:

MASERU

CORAM:

Steyn JA

Browde JA

Kotze JA

JUDGMENT

STEYN JA

This
appeal concern the exercise of discretion by the Presiding Officer in
the Magistrate's Court for the district of Maseru. He
ruled that a
matter that came before him for hearing, should be transferred to a
"Local Court of competent jurisdiction".

2

The issue is a simple
one. Did the Magistrate in so ruling act judicially? I proceed to
deal with this question herein below.

The
facts are the following:

Appellant
sued the Respondent for payment of the sum of M7400. In his
particulars of

claim he
alleges that:

"On or about 19th January 1992 and at or near Semonkong Ha
Mateketa the Plaintiff and Defendant entered into an agreement
in
terms of which the latter agreed to pay to the former a total of
M8000.00 as dowry payment for Plaintiff a daughter Halifele
Mpati who
was getting married to Defendant's son Ts'oeute Lekaka

Appellant goes on to plead that Respondent (Defendant) paid a deposit
of M600 "leaving a balance of M7600 which remains unpaid
to
date".

The
action was defended. Further particulars were requested and supplied.

It
appeared that the argument was partly verbal and partly in writing.
The written portion of the agreement was supplied. In translation
it
read as follows:

MARRIAGE
AFFAIRS 19-01-92

3

This is
to certify that I Senyane Mpati have received the sum of M600.00 from
'Me 'Manchafatso Lekaka as deposit while a head of
cattle is M800-00

SGD: SENYANE MPATI 'MANCHAFATSO LEKAKA

Witnesses
of Senyane Mpati

1. MOTEKA
   MABOEE

   
   

2. EPHRAIM
   MPATI

   
   

Witnesses
of 'Manchafatso Lekaka

'MA-ELIZA LEKAKA"

Respondent
filed a Plea. Her defence was the following:

"AD
PARA 4 THEREOF

Save to
admit that there was an agreement entered into in respect of the
marriage between Plaintiffs daughter and defendant's son,
defendant
denies that she agreed to pay M8000.00 (Eight thousand Maloti) as
dowry payment thereof. Defendant says that there was
never an
agreement as to the total amount of dowry to be paid."

4

On the
question of part payment the Respondent pleaded the following:

"AD
PARA 5 THEREOF

1. Save
   to admit that an amount of M600.00 was paid, Defend­ant denies
   that the said M600.00 was paid in part payment of an amount
   which
   had been agreed upon. Defendant says that the payment of M600.00 was
   made as deposit to an amount which was going to be
   agreed upon by
   the parties. It was decided that the parties would meet at a later
   date and agree as to the full amount to be
   paid as well as other
   issues in relation to the marriage especially the behaviour of
   Plaintiffs daughter.

   
   

2. Defendant
   further says that Plaintiff has neglected to meet with defendant to
   agree as to the full amount to be paid and to date
   Plaintiff has not
   made himself available despite repeated requests."

   
   

The matter was set down for hearing in the Magistrate's Court and was
duly called for the hearing of oral evidence on the 13th
of July,
1994 before the Senior Resident Magistrate. The Presiding Officer
then mero motu raised the issue as to whether his Court
was the
proper forum.

5

Appellant's
Counsel contended that the Court in which the proceedings had been
brought and which was ripe for hearing, was the proper
forum. He
specifically referred to the fact that:

"We are claiming the amount of M7,400. That is certainly beyond
the jurisdiction of any Local and Central Court."

Counsel
for the Respondent, although she had accepted the jurisdiction of the
Magistrate's Court by pleading over on the merits
and by not raising
the issue of jurisdiction, associated herself with the contention
that the matter should be referred to a Local
Court.

The
Magistrate proceeded to rule as follows:

"COURT RULING

I am
persuaded on the authority of ROBERT POTLANA NTLE v KHUBELU KHAKETLA
C/A/3/83 that a Magistrate's Court has jurisdiction over
a purely
customary law action. However Sec. 17(2) of the Subordinate Courts
Order empowers the Court to transfer a case to a Court,
other than
the High Court, where it can more conveniently be dealt with.

The
question of Bohali is preeminently a matter of custom and as such a
matter peculiarly within the competence of our Basotho Courts.
In
this regard it has been held that the fact that there is a money
equivalent of the bohali cattle does not oust the jurisdiction
of
these Courts even if the equivalent seems to exceed its monetary
jurisdiction.

I
accordingly order that this case be transferred to a Local Court of
competent jurisdiction.

6

I would
have ordered that each party should bear its costs but because the
defendant chose to argue against the Plaintiff on the
question of the
jurisdiction raised by the Court mero motu the defendant is ordered
to pay the costs of to-day's argument."

Appellant
appealed against this ruling to the High Court. Molai J upheld the
judgment of the Senior Resident Magistrate. In the
course of his
reasoning, the learned Judge refers to Section 8(1) of Proclamation
62 of 1938 dealing with Central and Local Courts.

He cites
the section as follows. He says it specifically provides:

"8(1 ) Subject to any express provisions conferring jurisdic-
tion, no Central and Local Courts shall have jurisdic­tion
to try
-

1. 
   ...............................

   
   

2. Cases
   in connection with marriage contracted under or in accordance with
   native law or custom, except where and in so far
   as the case
   concerns the payment or return or disposal of dowry."

   
   

He then
goes on to say:

"Assuming the correctness of my view that the subject matter of
the present dispute is payment of bohali I am, on the above
cited
authorities, satisfied that the Basotho Courts have jurisdiction to
entertain this case. Plaintiffs argument to the contrary
cannot,

7

therefore, hold water."

The
learned Judge does not appear to have cited the terms of the
Proclama­tion in full. It, in fact, is reflected as follows
in
the law advisor's copy of The Laws of Basutoland Vol.X made available
to us.

Section
8(1) reads as follows according to this version:

"8(1) Subject to any express provision conferring jurisdic-
tion, no Central and Local Courts shall have jurisdiction to
try—

1. cases
   in which a person is charged with an offence in consequence of which
   death is alleged to have occurred or which is punish­able
   under
   any law with death or imprisonment for life;

   
   

2. cases
   in connection with marriage other than a marriage contracted under
   or in accordance with native law or custom, except where
   and in so
   far as the case concerns the payment or return or disposal of
   dowry."

   
   

It is
however not necessary to resolve the anomaly arising from the
official version of the Proclamation. I say this because there
are
very persuasive reasons why the ruling made by the Magistrate and
upheld by the High Court appear to us to be wrong.

In the
first place Counsel was unable to place any legal provision or

8

authority
before us which indicates that the limited jurisdiction of the Local
Court can be exceeded in cases involving the payment
of a dowry. We
were advised by both Counsel that this jurisdiction was limited to
M500 at the time the action was heard and the
ruling given. In the
absence of any such provision, it is difficult for us to see how this
action, in which the payment of the
sum of M7400 is claimed, could be
competently heard in the Local Court merely because it involved the
recovery of a dowry.

Secondly,
the discretion to be exercised in deciding whether or not to transfer
a case needs to be exercised judicially. The resolution
of this issue
requires an examination of the relevant statutory provisions and
their application to the facts of this case.

Counsel
for the Appellant summarised the issue thus:

"Is there evidence at all relating to convenience upon which a
reasonable Court could have removed Plaintiffs claim from his
chosen
forum?"

Counsel
went on to contend "Plaintiff as the dominus litis is in law
entitled to choose the forum in which he will institute
the action
and the Court will not lightly interfere with Plaintiff's right to
choose the forum". Counsel is supported in this
view by the
authors Van Winsen, Eksteen and Cilliers in their work The

9

Civil
Practice of the Superior Courts in South Africa" (Third Edition)
at p. 394. It is also clear that due weight is to be
accorded to the
fact that Respondent consented to the Magistrate's Court's
jurisdiction by pleading over on the merits, by failing
to raise the
issue of jurisdiction in her pleading and by allowing the matter to
proceed to trial before the relevant Court. See
in this regard: Lundy
v. Lunay 1962(2) SA 481 at 486(N).

Clearly
the Court was entitled mero motu to raise the issue of the appropri-
ateness of the forum. Also, it was entitled to exercise
u discretion
to order the case to be removed to another Court. That discretion had
however to be exercised judicially. As can be
seen from the
Magistrate's ruling cited above, he relied upon the provisions of
Section 17(2) of the Subordinate Courts Order 1988
to do so. This
Order reads as follows:

"If at any time after issue of Summons it appears to the Court
that the action is within the jurisdiction of any other Court

established within Lesotho other than the High Court, and would be
more conveniently dealt with in such other Court, the Court
may
transfer the action to such other Court."

Counsel
pointed to the fact that Section 17(2) is "substantially
similar" to the provisions of Section 9 of the Supreme
Court Act
of the Republic of South Africa. This Section reads as follows:

"If any civil cause, proceeding or matter has been instituted in
any

10

provincial or local division, and it is made to appear to the Court
concerned that the same may 'be more conveniently or more fitly
heard
or determined in another division, that court may, upon application
by any party thereto and after hearing all other parties
thereto,
order such cause, proceeding or matter to be removed to that other
division."

There is
much force in this contention. It is therefore entirely appropriate
for us to have regard to the decisions of South African
Courts
concerning the meaning to be ascribed to the word "convenient"
in such Courts. Before doing so, it is necessary
to summarize the
contention advanced by Mrs. Kotelo on behalf of Respondent concerning
the propriety of the exercise of discretion
by the presiding

Magistrate.
She relied very heavily in this regard on the statement by him
recorded above in his ruling that.

The question of Bohali is pre-eminently a matter of custom and as
such a matter peculiarly within the competence of our Basotho

Courts."

Counsel
for the Appellant vigorously disputed the contention that the manner
in which the cause was pleaded by both parties permitted
of the
dispute between them being categorized as a matter concerning
"bohali". It was, he submitted, a claim for the
payment of
money due in terms of a contract. Only the terms of the contract and
the manner in which payment was to be effected,
were in dispute and
it required no special knowledge of customary law to be judicially
determined.

11

There is
substantial merit in this submission on the pleadings as drafted. I
am however prepared to assume that the fact that the
payment was due
as a dowry could have justified the matter being considered
appropriate for reference to a local court.

The
question remains, however, was it right for the Court to deem it
"convenient" to do so within the meaning to be ascribed
to
this term? A seminal judgment concerning the term "convenience"
in this context is to be found in the judgment in
Minister of
Agriculture v. Tongaat Group Ltd. 1976(2) SA 357 (N). At p.363 Miller
J (as he then was) says the following:

"The word "convenient" in the context of Rule 33(4) is
not used, I think, in the narrow sense in which it is sometimes
used
to convey the notion of facility or ease or expedience. It appears to
be used to convey also the notion of appropriateness;
the procedure
would be convenient if, in all the circumstances, it appeared to be
fitting, and fair to the parries concerned. {Shorter
Oxford English
Dictionary, s.v. "convenient", and see Burkill v. Thomas,
(1892) 1 Q.B. 99 at p. 102). It must be borne
in mind that the grant
of an application under the Rule, although it might result in the
saving of many days of evidence in Court,
might nevertheless cause
considerable delay in the reaching of a final decision in the case
because of the possibility of a lengthy,
barren interregnum between
the conclusion of the first hearing at which the special questions
are canvassed and the commencement
of the trial proper. (cf.
Netherlands Insurance Co. of S.A. Ltd. v. Simrie, 1974 (4) S.A. 287
(C) at p. 289). In such a case, the
advantages, in the form of
curtailment of time actually spent in Court, which would result from
the separate decision of the special
questions might be outweighed by
the disadvantages of delaying the ultimate decision of the case; it
might cause great prejudice
to the party who ultimately obtains
judgment in his favour and who might suffer very considerable
pecuniary loss through the circumstance
that he could only receive
payment of what was found to be due to him very much later than he
would have received it had the trial
been

12

allowed to proceed in the ordinary way."

After
dealing with other factors less relevant to the present case, the
learned Judge says the following at p. 364:

"It follows from what I have said that the function of the Court
in an application of this nature is to gauge to the best
of its
ability the nature and extent of the advantages which would flow from
the grant of the order sought and of the disadvantages.
If, overall,
and with due regard to the divergent interests and considerations of
conveni­ence (in the wide sense I have indicated)
affecting the
parties, it appears that such advantages would outweigh the
disadvantages, it would normally grant the application."

Let us
apply these principles to the facts of the present case. On the one
hand we have the fact that some of the evidence adduced
may well have
required special knowledge of and experience in the customary law
concerning "bohali" not readily available
from a reading of
Sebastian Poulter's work on Family Law and Litigation in Basotho
Society or W.C.M. Maqutu's Contemporary Family
Law of Lesotho.

Arraigned
against this consideration are the following factors affecting the
convenience of the parties:

1. The
   parties had selected the Magistrate's Court as their forum of choice
   for the resolution of their dispute.

   
   

13

2. The
   issues raised on the pleadings concerned the determination of the
   terms of an agreement between the parties partly oral partly

   written. It was certainly not a dispute that was primarily a matter
   of an inchoate agreement that would depend on a high level
   of
   expertise or knowledge concerning "bohali".

   
   

3. The
   Court of preference had jurisdiction to try the matter. The Court to
   which it referred had a jurisdiction limited to a value
   of M500
   whilst the claim was for payment of M7400.

   
   

4. Perhaps
   most importantly the parties were ready to proceed. The case was
   ripe for hearing. The witnesses were present. Convenience
   in respect
   of one of the most important aspects of justice, i.e. a speedy
   resolution of the dispute cried out for the need to
   proceed, not to
   prevaricate.

   
   

5. We
   were assured by both parties that the presiding Magistrate was
   indeed as skilled in customary law as any Presiding Officer
   in a
   Local Court.

   
   

Weighing
up these competing considerations, I am satisfied that the Magistrate
was clearly wrong to refer the matter to another
Court. He should
have tried the matter and done justice between the parties by
resolving their dispute

14

instead
of delaying it and burdening them with the costs attendant upon such
delay.

Accordingly
he failed in my view to exercise his discretion judicially. The
appeal succeeds. The order granted referring the hearing
to a Basotho
Court is set aside with costs both in this Court and in the High
Court. The matter is referred back to the Magistrate's
Court for
hearing on the first available date.

J.H.
STEYN

JUDGE OF
APPEAL

I agree

J. BROWDE

JUDGE OF
APPEAL

I agree

G.P.C.
KOTZE

JUDGE OF
APPEAL

Delivered
at Maseru this 27th day of October, 1995.