Moletsane v Moletsane and Others (C of A (CIV) 10 of 2004) [2004] LSCA 11 (20 October 2004)

Key Facts

Issues

• The court determined that a customary marriage entered into during the subsistence of a civil marriage is null and void ab initio, as established in prior cases like Mokhothu v Manyaapelo and Ntloana v Rafiri. The Appellant's marriage to the deceased was invalid due to the ongoing civil marriage with the First Respondent.
• The Appellant failed to prove she entered the customary marriage in good faith, unaware of legal impediments. The court found contradictions in her evidence, including her undisclosed valid civil marriage to Mphutlane at the time of the customary marriage, which undermined her credibility and the putative status of the marriage.

Holdings

• The court upheld the lower court's credibility findings against the Appellant, concluding she failed to prove she bona fide believed there were no legal impediments to the customary marriage. The appeal was dismissed with costs, as the Appellant did not meet the burden of proof for a putative marriage under the circumstances.
• The Court of Appeal held that a customary marriage entered into during the subsistence of a pre-existing civil marriage is null and void ab initio under Lesotho law, citing precedents such as Mokhothu v Manyaapelo and Leoma v Leoma. The court emphasized that polygamy is not permitted in civil marriages, rendering subsequent customary marriages invalid from the outset.
• The court determined that the Appellant's customary marriage to the deceased was further invalidated by her own concurrent civil marriage to Mphutlane, which she concealed in her founding affidavit. The Appellant obtained a divorce from Mphutlane on 26 April 1993, four months after marrying the deceased, but this did not retroactively validate her marriage to the deceased.

Remedies

• The High Court directed respondents to refrain from interfering with the Appellant's use of the deceased's property pending determination of lawful heirs and estate division.
• The Court of Appeal dismissed the Appellant's appeal with costs. The Appellant's customary marriage to the deceased was found to be null and void ab initio, and she failed to prove it was putative. The High Court's orders remain in effect.
• The High Court ordered respondents to restore possession of two Toyota vehicles (AD122 and AP214) to the Appellant forthwith.
• The High Court granted an order restraining respondents from intimidating or harassing the Appellant, including preventing them from compelling tenants to pay rent to anyone but the Appellant.
• The High Court recognized the Appellant as the rightful person to bury the deceased in consultation with the family, despite the First Respondent's claims.

Legal Principles

• A customary marriage following a pre-existing civil marriage is null and void ab initio under Lesotho law, as established in prior cases like Mokhothu v Manyaapelo and Ntloana v Rafiri. The court emphasized that such marriages cannot coexist and are inherently invalid from their inception.
• The Appellant failed to discharge her burden of proving that her customary marriage was putative (bona fide without knowledge of legal impediments). The court found contradictions in her evidence and no justification for her belief that the deceased's prior civil marriage had been dissolved.

Precedent Name

• Ntloana and Another v Rafiri
• Leoma v Leoma and Another
• Makata v Makata
• Mokhothu v Manyaapelo

Judge Name

• F.H. Grosskopf
• M.M. Ramodibedi
• J.W. Smalberger

Passage Text

• The Appellant simply failed, in my view, to discharge the onus of proving that her marriage to the deceased was putative, alternatively that at the time when she entered into the customary marriage in question, she did not bona fide believe that there were no legal impediments to such marriage particularly in view of her own pre-existing civil marriage to Mphutlane.
• It follows that the appeal cannot succeed and it is accordingly dismissed with costs.
• It is now well settled in our law that a civil marriage cannot subsist side by side with a customary marriage. A customary marriage following a pre-existing civil marriage as in this case is null and void ab initio. See for example decisions of this Court in Mokhothu v Manyaapelo 1976 LLR 281, Makata v Makata 1980-84 LAC 198 (also reported in 1982-84 LLR 29), Leoma v Leoma and Another C of A (CIV) No. 29 of 2000 (unreported) and Ntloana and Another v Rafiri C of A (CIV) No. 42 of 2000 (unreported).