CIV/APN/26/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

ROY
GREENOCK Applicant

v

MAUREEN
MARY GREENOCK Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 3rd day of May, 1985.

This is
an application for leave to appeal brought by an unsuccessful
plaintiff for a Restitution Order in this Court which was
dismissed
for want of jurisdiction.

The facts
that emerged at the hearing are that the present applicant, whom I
shall refer to as the plaintiff, was domiciled in South
Africa at all
material times. The desertion of which he complains took place in
South Africa and there would seem to be every reason
therefore why
the only competent court capable of exercising jurisdiction in the
divorce action would be a South African Court
even though the
marriage took place in Lesotho.

However,
Mr. Mphutlane for plaintiff has urged upon me in this application for
leave to appeal the fact that there was or presently
is in existence,
a statute in the Republic of South Africa which makes illegal
marriages entered into between persons who are not
of the same race.

In the
present case, the plaintiff is a European while the defendant is a
Mosotho. The prohibition of Section 1(2) of Mixed Marriages
Act 55 of
1949 of the Republic of South Africa renders void a marriage between
a white person and a non- white person where the
husband is domiciled
in the Republic of South Africa at the time

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of the
marriage and whether the marriage is solemnised inside or outside the
Republic. (See ex parte Cathrall 19 65(2) S.A. 505(N)

The fact
that the marriage would be recognised as valid by the lex loci
celebrationis is of no avail to the parties since the essential

validity of the marriage falls to be determined by the lex domicilii
that is, by the law of the place where the husband is domiciled
at
the time of the marriage.

the
quandary in which the plaintiff finds himself is that even if he were
to sue for and obtain a decree of nullity in the Republic
of South
Africa where he is now domiciled, he would be faced with the
situation that such a decree may well not be recognized by
any other
Court of any other country in the world on the ground that the decree
of nullity was granted upon the basis of a sta­tute
which would
most likely be regarded as repugnant to public policy in all those
countries other than in the Republic of South Africa.

Lesotho
law would tend to uphold the validity of a marriage celebrated
between whites and non-whites and notwithstanding any such

prohibition of the lex domicilii' "since our public policy
demands the full freedom of con­tract and the right of man
to
bind themselves in respect of all legitimate matters" per innes
C.J. in Law Union and Rock Insurance Co. Ltd vs. Carmichael's
Exor
1917 AD 598.

How much
more abhorrent to our system of law must such a prohibition be which
invalidates a marriage on the grounds only of race
or colour and so
is more surely contrary to the public policy of this country.

If the
Plaintiff sues for a decree of divorce on the grounds of malicious
desertion in the court of his domicile, that is, in a
South African
Court, he will no doubt find himself met with a refusal by that Court
to grant an order for divorce which would be
tantamount

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to
recognition of an invalid marriage according to South African law.

The trial
court which heard this action by the plaintiff did not consider that
aspect and I have been referred to authorities such
as Forsythe on
Private International Law which suggests that in such circumstan­ces,
the court of the place where the marriage
was cele­brated, that
is, the forum loci celebrationis would have jurisdiction.

In
Cathrall's case at p. 510, the learned judge left open the question
whether the forum loci celebrationis might in the circumstances
of a
case such as the present assume jurisdiction.

However,
I am constrained to find that, despite the sympathy one must feel for
the Plaintiff, the rule of law is that only the court
of domicile at
the time of the institution of these proceedings has jurisdiction to
entertain an action for a decree of divorce.
It is also clear law
that the courts of the place where the marriage was celebrated or of
the original domicile of the wife have
no jurisdiction to grant a
decree of divorce where the husband is domiciled elsewhere. (See
Gilbert v. Gilbert 1901 N.L.R. 201
and Mesurier v. Mesurier (1895)
A.C. 517) But the situation in South Africa now is that the
Prohibition of Mixed Marriages Act
is about to be repealed. such
repeal will be of retrospective effect so that all marriages
previously celebrated contrary to that
Statute will be regarded as
valid in South African courts.

In that
case, there will then be no obstacle to plaintiff bringing an action
for divorce in the Republic of South Africa where he
is domiciled on
the grounds that the marriage has irretrievably broken down and in
that way plaintiff will achieve a situation
where a decree of divorce
might well be granted by a court in the country of his present
domicile and which would, therefore,

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receive
international recognition.

I am
satisfied that I must follow the general principle of our common law
that only the courts of Plaintiff's domicile have jurisdiction
and
find accordingly that there is no reasonable prospect of success on
appeal. The application is dismissed.

D.S. LEVY

ACTING
JUDGE

3rd May.
1985.

For
Applicant : Mr. S. Mphutlane,

For
Respondent : No appearance.