CIV/TA/41/81

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

LIMPHO
MAKATA Plaintiff

v

THEBE
MAKATA Defendant

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 13th day of
September 1982

The
plaintiff Limpho Makata married the defendant Thebe Makata at the
District Administrator's office Maseru on the 10th February
1978
under the provisions of the Marriage Act 1974. They have one child a
daughter born in 1980.

It is
common cause that the defendant had been previously married (in 1971)
under sotho law and custom to a woman known as Mamakata
Makata
according to plaintiff or Machobane Tseleng according to defendant. I
take it she is the same woman. That customary marriage
still
subsists. In her declaration the plaintiff says the defendant did not
disclose to her that he has a wife to whom he is married
by the
customary law. The defendant in his plea says when he entered into
the civil rites ceremony with the plaintiff she had "full

knowledge" of the existence of the customary law marriage. The
defendant admits that cohabitation with his customary law wife
did
not cease after his marriage to the plaintiff.

Mr,
Maqutu made an application to strike out and excepted on the ground
that the defendant has no defence at all even if the plaintiff
was
aware of the defendant's customary law marriage since the latter is
void ab initlo, and alternatively, that the plaintiff is
entitled on
defendant's own admission of continued cohabitation to a

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decree of
divorce on the ground of "adultery" by the defendant with
his customary law wife.

Mr.
Maqutu has raised the same arguments before me in the recent case of
Theko v Theko CIV/T/249/82 -dated 31st August 1982 -unreported,
which
were not successful, but has supplemented them today by referring to
the attitude of judges in England in such cases as Hyde
v Hyde 1866
L.R. 1 P & D 130 and Baindail v Baindail 1946 1 All E.R, 342, and
to writers on Conflict of L?ws (Graveson 7th
Ed. 237, Dicey 9th Ed.
292 and Morris 2nd Ed. 42) and to a case in Kenya R5 v SS and another
1969 E.A.L.R. 299.

I have no
reason to depart from the views I held in Theko v Theko supra. The
short answer to Mr. Maqutu's submissions is that in
those other
countries the judges and writers were dealing with conflict of the
laws whilst here we have dualism of laws supplemented
in this
particular instance by an express statutory provision (s.42) which
allows for the continued validity of a previous customary
law
marriage from which it follows that a civil rites marriage can take
place during the former's subsistence. It is a concession,
so to
speak, to the customary law institutions, and as Mr. Maqutu pointed
out in his heads of argument had been in existence since
the Marriage
Proclamation 7 of 1911 (Vol. III Laws of Lesotho p 1760 s.7) if not
before. Section 42 of the Marriage Act cannot
therefore be construed
as a prohibition rendering the civil rites marriage null and void if
a valid customary marriage is still
in existence without doing
violence to the language. It would enable a husband to get rid of his
civil rites wife at random, a
oreposterous situation if the roles
were reversed and the husband is plaintiff, and its consequences
would bring havoc to the laws
of marriage, civil as well as
customary, and to the family. The customary law would not allow a man
married by custom to dismiss
his wife with impunity: I see no reason
why the civil law should.

The
application to strike out and the exception are accordingly dismissed
with costs and the trial will proceed on the pleadings
with leave to
amend in case Mr. Maqutu is able to bring the plaintiff's case within
the principles enunciated in my judgment in
Theko v Theko, supra,
wherein I was prepared to extend a remedy to the underdog, if such be
the case, but not to the fraudulent
party or if both were in pari
delicto.

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Mr.
Maqutu says he would like to test my opinions on this issue in the
Court of Appeal and seeks leave to appeal. I think he is
wasting time
and money. However leave to appeal is hereby granted.

CHIEF
JUSTICE

13th
September 1982

For
Plaintiff. Mr. Maqutu

For
Defendant: Mr. Kolisang