CIV/APN/392

IN THE
HIGH COURT OF LESOTHO

In the
matter of -

BOY
ANTONE Applicant

vs

TABOLETI
MOMHOTHU 1st Respondent

QUEEN
ELIZABETH II HOSPITAL 2nd Respondent

ATTORNEY
GENERAL 3rd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 11th day of
December, 1987.

On the
27th November, 1987 Mr. Moorosi, counsel for the applicant, moved an
ex parte application and sought an order in the following
terms -

"1. That a Rule Nisi be issued, and returnable on a date to be
determined, calling upon the respondents to show cause to
this
court, if any. why

1. The
   applicant sha]l not be declared the sole person, with the assistance
   of members of his family, having rights of his family
   to dispose of
   and/or to determine the burial of the corpse of the deceased Masoabi
   Frangeni Mallapolio Antone Alias Mokhothu,
   presently lying at 2nd
   respondent's mortuary.

   
   

2. The
   2nd respondent shall not release the corpse mentioned in (a) above
   to the applicant at his request or that of his nominee

   
   

2

3. The
   2nd respondent shall not be ordered to keep the corpse in dispute
   pending the final order and/or directory of this court upon
   the
   final determination of these proceedings,

   
   

4. The
   1st respondent shall not pay cosin of this application.

   
   

2. That
   this Rule operate as an interim order, directing the 2nd respondent
   as prayed in above, with immediate effect."

   
   

The
interim order was issued and all the responden were served. Only the
1st respondent opposed the confirm -tion of the rule.

On the
return day 2nd December, 87 the matter was argued before me and I
formed the opinion that there was a dispute of fact which
could not
be resolved on affidavits and ordered that oral evidence should be
led. The dispute of fact was whether there was a valid
Sesotho
customary marriage between Masoabi Frangeni 'Maliepollo Antone
(hereinafter called the deceased) and the late Manlomi Mokhothu.

In his
effidivit and in his evidence before this Court the applicant deposed
that he is the younger brother of the deceased who
died on the 13th
November, 1987 and his body is still lying at the 2nd respondent's
mortuary. They parents died while they were
still very young and they
were brought up by their maternal uncle Beniki Antone. The applicant
says that now that he is a major
and the eldust son of their parents
he is responsible for all the affairs of the deceased including the
determination of disposal
and burial of the corpse of the deceased.
He deposes that at the

3

time of
her depth the deceased was single and never got married to the late
Mohlomi Mokhathu in accordance with customary law.

The
applicant deposed that in 1970 the late Mohlomo Mokhothu seduced the
deceased and as a result of that seduction she gave birth
to a baby
girl named Liepollo, xxxx the two never got married to each other
till their respective deaths. After the death of Mohlomi
Mokhothu his
parents/ relatives discovered that he (Mohlomi) had nominated the
deceased as his beneficiary. His employers insisted
that all monies
and benefits would have to be paid to the deceased because Mohlomi
had nominated her as his beneficiary. loan the
1st respondent and his
wife requested the deceased to xxx a passport in the names of
'Maliepollo Mokhothu because she would have
to identify herself as
the beneficiary and should had to go to the Republic of South Africa
in order to received the benefits.

It turned
out in the cross-examination of the application that in 1969 or 1970
when the deceased was seduced by Mohlomi the applicant
was only about
12 years old end could not have been involved in the negotiations
leading to the payment of "bohali" (dowry)
for the marriage
of his sister.

I am of
the opinion that the evidence of the appllicant on the non-existence
of a valid

marriage
between the decepsed and Mohlomi cannot be taken seriously because he
was too young at the time the marriage is alleged
to have taken
place. Because of his tender age he could not have been invited by
his parents to take pleace in the negotiations
with the parents of
Mohlomi.

4

'Mampontseng
Korolosa is the wife of the appilcant's material uncle. Shy also
denied that the deceased was married to the late Mohlomi.
Her
evidence is that in 1973 Mohlomi seduced the deceased and as a result
of that seduce on a baby girl Liepollo was born. Immediately
after
the child was born Mahlomi disappeared and she never saw him again.
Before he seduced the deceased Mohlomi was working at
a store
crushing plant at Likotsi- She again heard about Mohlom when
'Malimekatso Mokhothu who is the wife of the 1st respond came
to her
place and told her that Mahlomi had died and that he had nominated
the deceased as his beneficiary.

It is
common cause that the deceased wore the mourning cloth as the wife of
the late Mohlomi Mokhothu and obtain a passport in the
names of
'Maliepollo Mokhothu and that the subsequently received monies or
benefits as the beneficiry of the late Mohlomi, One
of the benefits
was a pension of R573 per month which the deceased received till she
died.

Beniki
Antone is another maternal uncle of the applicant. He also denied
that there was any mairiage between the deceased and Mohlomi.
He,
unlike 'Mampantseng and the applicant, admitted that the late Mohlomi
Makhothu ebducted the deceased and lived with her as
man and wife at
Kolonyama at the home of his parents. However, he denies that
following the said abduction any payment for "bohali'
was mad by
Mokhothu family. His version is that the members of Mokhothu family,
especially 'Malimakatso who lives here in Maseru,
kept on promising
that they would come and pay for "bohali but they never came.

5

The
evidence of the 1st respondent, which is corroborated by his wife and
Molefi Mokhothu, is that following the abduction of the
deceased by
the late Mohlomi who was his younger brother, he gave an amount of
R120,000 his wife and Malefi and instructed them
to go to the home of
the parents of the deceased and to pay the "bohali" They
went to Likotsi and came back and reported
that the agreemend was
that the money was accepted as equivalent to six (8) head of cattle
for "boholi" because the Antone's
accepted as equivalent
to one cow. The evidence was that the money he been received by
Deniki Antone and 'Mamasoabi Antone, the
mother of the deceased. She
is also late. 'Malimako pud Malefi Makhothu deposed that when they
gave the money to 'Mamasoabi and
Beniki there was no representative
of the local chief and that Beniki and 'Mamasoabi said they would
give them documentary evidence
of payment of payment of "bohali"
only, after they had paid ten head of cattle referred to as "hlohol

Now I
must mention straightaway that it was unwise of the 1st respondent or
his representatives to give money for "bahall"
to the
applicant's family in the absence of the local chief. I agree with
the submission that the presence of the local chief or
his
representative is not necessary for that to be a valid marriage, but
as Duncan points out in his book entitled "Sotho
Laws and
Customs" at p.29,

"Because it is desirable for the dowry agreement to be reached
with maximum publicity, and for ther. to be as many witnesses
as
possible, one man, usually the girl's father, is in charge of feast,
and is

6

assisted by marriage witnesses (bathethesi) from both
families......... it is desirable for the local chief to be
represented'
Chabalala v. Kukami, J.C. 75/51."

If the
chief's representative had been invited, a letter of agreement would
have been written and signed by all the marriage witnesses
present
and each party to the agreement would have been given a copy of the
letter of agreement duly stamped with the chief's date
stamp. Such a
letter of agreement has great probative value where a dispute has
arisen. I find it most improbable that the 1st
respondent's
representatives could give "bohali' to Antone's family in such
private circumstances that no one outside the
two families should
know anything about it

The
requirments of a valid Sesotho customary low marriage are clearly set
out in section 34(1) of the xxx of Lerotnali (Part II)
as follows -

"(1) A marriage by Basotho custom in Lesotho shall be deemed to
be completed when

1. there
   is agreement between the parl as to the marriage,

   
   

2. there
   is agreement between the parents of the parties or between those
   who stand in loco parentis to the parties as to the marriage
   and as
   to the amount of the "bohali",

   
   

3. there
   is payment of part or all of the "bohali" provided that
   if the man xxxxxx before the woman goes to his parent's
   house the
   bohsli shall be returned and the marriage shall be null and void.!

   
   

7

We shall
assume that the first requirment was satisfied because the late
Mohlomi ebducted the deceased end the latter stayed at
his parents'
home and never attempted to run away. He nominated her as his
beneficiary and had two children with her.

As far as
the second requirement is concerned, the 1st respondent mode it quite
clear in his evidence before this Court that there
was no agreement
as to the amount of the bohali that he had to pay. When I asked him
what he would do if Antone's family demanded
fifty head of cattle
when the two families finally negotiated the amount of the bohali, he
said he knew that the normal "bohali"
is twenty head of
cattle, a horse (molisana) and ten head of sheep goats (setsiba).
There is no doubt in my mind that there was
no agreement as to the
amount of "bohali" and that there cannot be a valid Sesotho
customory law marriage without agreement
on the amount of "bohali".

With
regard to the last requirment I have already expressed my doubt that
the representatives of the 1st respondent would give "bohali"

cattle in complete privacy/xxxx and accept that that was the correct
procedures

The other
point of Sesotho customary law which the 1st respondent does not seem
to appreciate is that in a marriage which follows
after the abduction
of the girl , the first six (6) head of cattle are for compensation
for abduction and will not form part of
the "bohali" cattle
until the fath -of the bay has paid the seventh beast. He may then
ask the girl's father to "lend"
him the six (6) head of
cattle to be

8

included
in the bahali cattle. Even on divorce where the girl Is found to be
at fault the first six (6) cattle will not be returned
to the father
of the boy if the marriare was preceded by abduction. She Duncan -
(supra) at page 22.

I have
accepted the evidence of the 1st responded that Mohlomi abducted the
deceased after a proposal for marriage had been mode
to Antone's
family. But an abduction which fallows the proposal is still an
abduction in law unless part of "bohali"
has been paid. If
the six head of cattle were paid before the adduction then they would
not farm compensat u even if Mohlomi decided
to "abduct"
the girl before other ceremonies and formalities, such as slaughter
of a beast (tlhabiso) and the taking
of the girl to the house of the
boy's parents (phelahetso) , were complied with.

In the
present case the 1st respondent never prayed and asked the parents of
the deceased to lend him the six head of cattle to
be incorporated
into "bohali". Even if there had been convincing evidence
that they were paid, they would stil be regarded
as compensation for
abduction because they have not been merged with the "bohali"
cattle. But as I said before in this
judgment it la improhable that
any payment was even more

During
the hearing of this case far too much time was spent on unimportant
things which do not prove the existence of a valid Sesotho
customary
law marriage. For instanrce,a lot was said about the fact that after
the death of Mohlomi the deceased wore a mourning
cloth. The
applicant's side explained why this was done. It is nowadays a common
practice among Basotho to leave their daughters
after abduction at
the home of the parents of the boys for very long periods before any

9

marriage
la agreed upon. During their stay at the home of the parents of the
boys, the girls rare made to wear long dresses which
are normally
worn by married women, they are given marital names and they may even
wear a mourning cloth before a valid marriage
is concluded, This is
exactly what happened in the present case. The part-may regard
themselves as husband and wife, and their
family may also be of the
opinion that a valid Sesotho customory law marriage has been
concluded, but when the dispute arises and
the case is brought to the
courts of law, the crucial question is whether the three requiraments
of a valid married stated in section
34 of Part II of the Laws of
Lerothuli have be satisfied or not. In the present case I have formed
the opinion that the second
and the third requirements have n been
satisfied and therefore there was no valid Sesotho customary law
marriage between the late
Mahlomi Mokhothu and the late Masaabi
'Meliepolln Frangeni Antone.

In the
result the rule is confirmed with costs.

J.L.
KHEOLA

JUDGE

11th
December, 1987.

For
Applicant - Mr. Moorasi

For
Respondent - Mr. Mpapa