C.of A (CIV) No .12 of 1983
IN THE LESOTHO COURT OF APPEAL
In the Appeal of:
DAVID MASUPHA Appellant
Vs
PASEKA 'MOTA Respondent
HELD AT MASERU
Coram:
SCHUTZ P.
MAHOMED J.A.
WENTZEL J.A.
JUDGMENT
Wentzel J.A.
The respondent was the applicant in the High Court for an order declaring as null and void the marriage entered into between his daughter and the appellant. The second respondent cited in those proceedings was the marriage officer who perfomred the marriage ceremony.
The essential facts are these: the daughter was born on 16.1.61 and she was married on 19.9.80 when she was a minor and she did not have the consent of her father (now the respondent in these proceedings) to that marriage. In 1982 a son was born of the marriage.
In the High Court, Molai J declared the marriage to be a nullity relying for this conclusion on Section 25(1) of the Marriage Act No.10 of 1974; costs were awared to respondent.
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In the Court a quo the appellant specifically raised the issue of respondent's locus standi to bring the proceedings. This contention
was however rejected.
At the request of the President of this Court the Registrar wrote to Mrs. Seabane Masupha (born 'Mota), the daughter, to advise her of the appeal and to enquire as to her attitude to the proceedings. The letter was written but there was no proof of its receipt. She did not appear at the appeal.
At the commencement of the appeal the Court mero motu raised the question whether Mrs, Masupha ought not to have been joined as a party by the respondent. It is her marriage which is at issue and any order as to its validity is one in which she has a direct and substantial interest. (See Amalgamated Engineer Union vs Minister of Labour 1949(3) SA 637 (AD).
In the absence of that joinder which respondent neglected in his application, the proceedings are defective and the order, accordingly, made by Molai J declaring the appellant not to be legally married to his wife must be set aside.
The consequences which follow upon such an order of nullity are very serious indeed affecting status and property rights and possibly (I put no higher than that) the interests of the son born of the marriage. Mrs Masupha's joinder was thus imperative and consideration
ought to have been given to the possible necessity of a curator-ad-litem representing the minor son. This case illustrates the need to consider and identify those who can be affected by the result of proceedings and to ensure that they are party to the proceedings.
I feel it appropriate to add that if the application had
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taken its full course it would have raised very difficult matters such as the locus standi of a father in such proceedings after his daughter attains majority; the status of such a marriage, whether it is void or voidable and the consequences for any child born of such a marriage if it should be set aside or declared void. These matters have been the subject of conflicting decisions in South Africa and considerable academic writing. Recent legislation in South Africa has attempted to deal with some at least of these issues. It may be expedient for legislation, to be passed in this Kingdom to deal with these matters. (Section 24A introduced into the Marriage of 1961 by an amendment in 1984 is the legislation to which I refer).
In the result the appeal succeeds with costs and I would set aside the order of Molai J in the Court a quo declaring that the applicant and his wife were not legally married to each other and granting costs, and would substitute therefor an order that the respondent is to pay the appellant's costs in the Court below.
Signed: E.M. Wentzel
E.M. WENTZEL
Judge of Appeal
I Agree Signed: W.P. Schutz
W.P. SCHTZ
President
I agree Signed: I. Mahomed
I. MAHOMED
Delivered on this 28th day of January 1985 at MASERU
For Appellant : Mr. Maqutu
For Respondent : In Person
