CIV/T/470/85

CIV/APN/212/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of

SEBAJOOE
MOHAMED Plaintiff/Applicant

V

MOHAMED
SAID MOHAMED Defendant/Respondent

REASONS
FOR JUDGMENTS

Filed by
the Hon. Chief Justice Mr. Justice T.S. Cotran on the 27th day of
September 1985

I
disposed of these two matters on the 18th September 1985 in the
manner that hereafter appears. I now give my reasons –

On or
about the 15th July 1985 the plaintiff (wife) Sebajooe Mohamed lodged
an action against the defendant (husband) Mohamed Said
Mohamed
seeking a decree of divorce on the ground of malicious desertion,
alternatively for judicial separation, and for other
ancillary
relief.

The
declaration is a short one, and apart from the incidents upon which
plaintiff relies to sustain the action, she says that her
husband is
a Kenyan, that they married in a Registrar's Office in the United
Kingdom, that they have three children of the marriage
and that
"immediately prior to the said marriage she was domiciled in
Lesotho" A request for further particulars elicited
the
information that the plaintiff worked as a nurse in California "from
March 1973 to July 1984 and that she came to Lesotho,
apparently with
her husband, in January 1985.

2

The
declaration contains no averment, as it must in matrimonial causes,
that this Court has jurisdiction to entertain the action
for divorce.
What she says tantamounts to an admission that the parties are not
domiciled in Lesotho (and have not acquired one
by choice) although
she was at one time so domiciled It seems from her maiden name that
she is a Mosotho by birth or held or holds
Lesotho citizenship

If, as
she says, she arrived in Lesotho in January 1985, she cannot take
advantage of the Matrimonial Causes Jurisdiction Act 1978
(Act 21 of
1978 Laws of Lesotho Vol. XXIII p.73) which gave relief from the
rigour of the common law to married women formerly
domiciled in
Lesotho if certain conditions are fulfilled. The plaintiff qualifies
to sue only after 12 months residence, i.e. in
January 1986

On the
31st July 1985 the defendant's attorney gave notice of exception
which was served on the plaintiff's attorney on the 2nd
of August
1985, setting down the matter for hearing for the 12th August and
then the 21st August and then the 16th September. The
matter did not,
for some reason or the other, come up for hearing on the first two
dates.

In the
meantime and on the 9th September 1985 plaintiff's attorney filed an
ex-parte application (stating that the matter was urgent)
in which he
sought relief which included the immediate delivery of the parties
vehicle to the plaintiff. Although in the application
plaintiff's
attorney made reference to the action, he did not either in the
notice of motion, or in the supporting affidavit, or
in his so-called
certificate of urgency, disclose to the Judge what he already knew,
viz, that there was on file an exception to
the jurisdiction which
would have put the Judge on his guard, to say the least, in granting
the rule ex-parte.

3

Plaintiff's
attorney was thus able to surreptitiously obtain from Kheola J an
order which would not normally have been granted without
hearing
argument after prior notice served on the other side.

The
return date of the application was the 23rd September which
defendant's attorney anticipated to be the 16th September 1985 the

date set down for the argument on the exception.

I
indicated that the application cannot be divorced from the main
action and invited argument on the matter as a whole

Mr Pheko
for plaintiff submitted that it is open to him to except to the
exception, that in the present instance the defendant's
remedy is not
by way of exception but by way of some special plea to the
jurisdiction, which would, according to Mr. Pheko, if
I understand
him correctly, pave the way to plaintiff to take further steps in the
action that had been lodged to cure whatever
defect there is in the
declaration.

With
respect this argument is invalid and unsound. The authorities as to
when to take an exception, or make an application to strike
out, or
advance a special plea are numerous but by no means unanimous. The
concensus however appears to be that where an exception
has the
effect of putting an end to the action it is the party's duty to
except, Algoa Milling Co v Ankill & Douglas-1918 AD
145, Myers
and Shraga 2 SA 258, Allen v. Gibbs 1977 3 SA 212,and further that
when it appears ex facie the summons and declaration
that the Court
sued in lacks jurisdiction to entertain the action the objection goes
to the root of the pleadings and the proper
practice is to proceed by
way of exception (Viljoen v.Federated Trust Ltd 1971 1 SA 750).

As I
stated earlier, in divorce proceedings the plaintiff must set out
facts on which he or she relies to indicate that the Court

4

has
jurisdiction. (Hahlo The South African Law of Husband and Wife 4th Ed
p 510) and if no such averment is made Rule 29(1)(a) of
the High
Court Rules applies In this particular case I discern no inadvertence
or neglect with regard to jurisdiction on the part
of attorney for
plaintiff, on the contrary, what I discern, I regret to say, is an
attempt on his part to insert something in the
declaration about his
own's client's intent regarding domicile inconsistent with what was
previously said Mr Pheko is no novice.
If the husband had acquired a
domicile of choice in Lesotho she would have made the necessary
positive averment.

The
exception in Civil Trial No 470/85 is upheld with costs to the
defendant and the Rule Nisi in CIV/APN/212/85 is discharged with

costs to the respondent I order Mr. Pheko not to submit a bill for
professional fees to Mrs Mohamed. This is without prejudice
to
plaintiff/applicant to approach the Court on matters relating to her
personal safety or under the Deserted Wives and Children
Proclamation
or on any matter which does not bring into

play her
current domiciliary matrimonial status such as an exercise of the
High Court's inherent jurisdiction as Upper Guardian
of all children
if they are in danger

Chief
justice

27th
September 1985

For
Plaintiff/Applicant Mr. Pheko )

) with copy of Reasons for

For
Defendant/Respondent Mr. Gwentshe ) Judgments