Mahase v Mahase and Another (CIV/APN 139 of 89) [1990] LSCA 57 (27 February 1990)

C I V / A P N / 1 3 9 / 89 IN T HE HIGH COURT OF LESOTHO In t he Application o f: ' M A M A H A SE M A H A SE (nee M o s o a n g) Applicant and 1st Respondent THABISO VICTOR MAHASE PRESIDENT - MAJARA LOCAL COURT... 2nd Respondent J U D G M E NT Delivered by t he Hon. M r. Justice B. K. Molai on t he 27th day of F e b r u a r y, 1 9 9 0. On 19th J u n e, 1989, t he applicant herein filed with t he Registrar of t he High Court a n o t i ce of m o t i on in w h i ch s he moved t he court f or an o r d er framed in t he following t e r ms : "(a) That t he c a se No. CC 6 8 / 89 of Majara Local Court to be heard on 2 1 st J u n e, 1989 be removed to t he above H o n. Court w h e re it shall be heard a nd dealt w i t h; (b) Further a nd or a l t e r n a t i ve r e l i e f. (c) Costs of s u i t ." Although t h ey w a re duly served with t he m o t i on papers t he Respondents h a ve n ot intimated intention to o p p o se this application. It m a y, t h e r e f o r e, be s a v e ly a s s u m ed that they a re prepared to abide by w h a t e v er decision t he court will arrive a t. T he facts t h at e m e r ge from t he founding affidavit are that in A p r i l, 1980 t he a p p l i c a nt a nd t he first respondent w ho a re t he r e s i d e n ts of Khubetsoana in t he d i s t r i ct of Maseru g ot m a r r i ed to 2/ each o t h er -2- e a ch other in a c c o r d a n ce w i th Sesotho Law and C u s t o m. The m a r r i a ge still subsists and t h r ee (3) c h i l d r en w e re born of the; m a r r i a g e. In 1986 t he f i r st Respondent developed a h a b it of drinking e x c e s s i v e l y, a s s a u l t i ng t he a p p l i c a nt and sleeping away from t he matrimonial h o m e. Consequently on 2nd O c t o b e r, 1988, t he applicant, left t he matrimonial home and w e nt to live at her m a i d en home. She took with her t he m i n or c h i l d r en of t he m a r r i a g e. W h e r e f or , t he first Respondent sued her (under CC 6 8 / 8 9) before t he Majara Local Court for t he d i s s o l u t i on of t he m a r r i a ge c o n c l u d ed between t h e m. The a p p l i c a nt t h en instituted t he present a p p l i c a t i on for the r e l i ef set o ut in t he n o t i ce of m o t i o n. The g r o u n ds upon which t he a p p l i c a nt r e l i es for t he r e l i ef sought in t he n o t i ce of m o t i on are that she intends to d e f e nd t he a c t i on and c o u n t er claim a g a i n st t he first R e s p o n d e n t. In a d d i t i on t he a p p l i c a nt avers t h at e v er sines she left t he matrimonial home t he first R e s p o n d e n t, who is a b u s i n e ss i man and, t h e r e f o r e, a b le to m a i n t a in her and t he m i n or c h i l d r en of t he m a r r i a g e, has failed to afford her and t he c h i l d r en a d e q u a te s u p p o r t. She i n t e n d s, t h e r e f o r e, to a s k, in her c o u n t er claim against t he first R e s p o n d e n t, for an o r d er of m a i n t e n a n ce for h e r s e lf and t he m i n or c h i l d r e n, as well as for t he c u s t o dy of t he c h i l d r e n, all of w h i ch reliefs t he local court has no j u r i s d i c t i on to grant. It cannot be s e r i o u s ly argued that a civil action for t he d i s s o l u t i on of a m a r r i a ge c o n c l u d ed in a c c o r d a n ce w i th S e s o t ho Law and C u s t om is w i t h in t he j u r i s d i c t i on of t he local and central c o u r t s. That being s o, S.6 of t he High Court A c t, 1978 c l e a r ly p r o v i d e s: 3/ "6 -3- "6. No civil cause or action within t he j u r i s d i c t i on of a subordinate court (which expression includes a local or central c o u r t) shall be instituted in or removed into t he High Court save .- (a) by a Judge of t he High Court acting by his o wn m o t i o n. or (b) with the leave of a judge upon a p p l i c a t i on made to him in c h a m b e rs and after n o t i ce to t he o t h er p a r t y ." (My u n d e r l i n i n g) By t he use of t he w o rd "shall", it seems to me t h at the p r o v i s i o ns of t he above cited section are i m p e r a t i v e. Granted that an action to d i s s o l ve a customary law m a r r i a ge is w i t h in t he j u r i s d i c t i on of t he Local and Central C o u r t, it necessarily follows that it cannot be instituted in or removed into the High Court subject. of course, to the provisions stipulated under paragraphs (a) and (b) of section 6 of the High Court Act, 1978. On the papers b e f o re m e, it is clear that the 'applicant s e e ks t he r e m o v al of C i v il c a se N o. CC 6 8 / 89 f r om M a j a ra Local C o u rt to t he High Court and m a k es r e l i a n ce on the provisions of S.6(b) i of the High Court A c t, 1978 w h i ch e m p o w e rs this court with the d i s c r e t i on to do s o. Such discretion m u s t, h o w e v e r, be: always e x e r c i s ed j u d i c i a l ly and not whimsically. As it has a l r e a dy been p o i n t ed o ut e a r l i e r, t he g r o u n ds upon which r e l i e f, in t e r ms of S.6(b) of t he High Court Act,; supra, is sought is firstly that t he applicant intends to defend t he d i v o r ce action instituted against h er by t he f i r st Respondent and c o u n t e r- c l a im , secondly t he applicant intends applying for an o r d er compelling t he first Respondent to m a i n t a in her and t he m i n or c h i l d r en of the m a r r i a ge as well as for t he c u s t o dy of t he c h i l d r e n. 4/ As regards -4- As regards t he f i r st ground t h e re is no doubt in my mind that if she intended to d e f e nd t he d i v o r ce a c t i on (CC 6 8 / 8 9) instituted against her by t he first R e s p o n d e n t, t he Majara Local c o u r t, which is a c o u rt of law, would a f f o rd her t he o p p o r t u n i ty to do s o. A s s u m i ng t he c o r r e c t n e ss of h er averment that she intends counter claiming in C C . 6 8 / 89 it seems to me w h at t he applicant really w a n ts to do is to contend t h at s h e, and not t he first R e s p o n d e nt has g r o u nd for d i v o r c e. The r e l i ef sought by t he latter in t he a b o ve m e n t i o n ed c a se ( C C . 6 8 / 8 9) s h o u l d, t h e r e f o re be g r a n t ed to h e r. In h er c o u n t er c l a im t he applicant w i l l, in e f f e ct be i n s t i t u t i n g, a g a i n st t he f i r st d e f e n d a n t, another civil action for t he d i s s o l u t i on of t h e ir c u s t o m a ry law m a r r i a ge w h i ch a c t i o n, as it has a l r e a dy been stated, is w i t h in t he j u r i s d i c t i on of t he local and central c o u r t s. The removal of C C . 6 8 / 89 from t he Majara Local to t he High Court c a n n ot in my o p i n i on be justified on t he f i r st g r o u n ds relied upon by t he a p p l i c a n t. Coming now to t he second grounds v i z. c u s t o dy of t he c h i l d r en and m a i n t e n a n c e, it is s i g n i f i c a nt that Section 3 4 ( 5) of Part II of t he Laws of Lerotholi provides in part : "(5) A c o u rt g r a n t i ng d i s s o l u t i on of such a m a r r i a ge shall m a ke an o r d er regarding t he r e t e n t i on or return of " b o h a l i ", c a t t l e, and to w h om t he c h i l d r e n, if any, shall belong " (My u n d e r l i n i n g) I have u n d e r s c o r ed t he w o rd " s h a l l" in t he a b o ve cited S e c t i on 34 (5) of Part II of t he Laws of Lerotholi to indicate my view t h at u p on t he d i s s o l u t i on of a c u s t o m a ry law m a r r i a ge t he court must d e c i d e, inter a l i a, w i th w h i ch of t he t wo parents the c h i l d r en will r e m a i n. W h e re a local court is a l r e a dy seized with 5/ a civil -5- a civil action for t he dissolution of a customary law marriage I do not, t h e r e f o r e, consider it p r o p er for t he High Court to e x e r c i se its powers u n d er s e c t i on 6 of t he High Court A c t, 1978 simply to pre-empt t he decision which t he former court i s, in law, bound to m a k e. As regards t he question of m a i n t e n a n ce of the applicant I fail to understand how t he first Respondent can be legally liable to pay m a i n t e n a n ce fee for her after t he dissolution of the m a r r i a g e. He w i l l, of c o u r s e, always have a duty to m a i n t a in t he m i n or children of the m a r r i a g e. H o w e v e r, action for such m a i n t e n a n ce is t r i a b le before t he m a g i s t r a te courts which t he applicant is free to approach at any t i m e. It seems to me, t h e r e f o r e, t h e re is no need for t he applicant to have C C . 6 8 / 39 t r a n s f e r r ed to t he High Court simply to obtain an o r d er compelling t he first Respondent to maintain the m i n or children of the m a r r i a g e. from t he f o r e g o i n g, it is obvious t h at I am not c o n v i n c ed t h a t, on the p a p e rs b e f o re m e, t he a p p l i c a nt has e s t a b l i s h ed a c a se for the removal of CC.68/89 from 'Majara Local to t he High Court. I w o u l d, in the c i r c u m s t a n c es dismiss this a p p l i c a t i o n. B. K. MOLAI J U D G E. 27th February, 1990. For Applicant : M r. Monaphathi For Respondent :