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Marriage, Divorce and Legitimacy in Lesotho

Published online by Cambridge University Press:  28 July 2009

Sebastian Poulter
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Extract

This paper seeks to explore some of the cardinal principles of Sesotho law in relation to marriage, divorce and the legitimacy of children and to consider how far these have been subjected to change during the course of the present century. The method chosen to illustrate this process is a detailed examination of a single unreported case which came before the Lesotho courts during 1971–4, but in which the crucial events which required legal interpretation had occurred some sixty years earlier.

Type
Research Article
Information
Journal of African Law , Volume 21 , Issue 1: SPECIAL NUMBER IN HONOUR OF ISAAC SCHAPERA , Spring 1977 , pp. 66 - 78
Copyright
Copyright © School of Oriental and African Studies 1977

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References

1 For a detailed analysis see Poulter, S. M., Family Law and Litigation in Basotho Society, Oxford, 1976.Google Scholar

2 The full citation is Khosi Molapo v. Lepoqo Molapo, High Court Civil Appeal No. 8 of 1973; Court of Appeal Civil Application No. 1 of 1974.

page 67 note 1 For a description of the origins and development of the Laws of Lerotholi see S. M. Poulter, “The Place of the Laws of Lerotholi in the Legal System of Lesotho”, (1972) African Affairs, 144.

page 69 note 1 For a graphic account by an eye witness of the skirmishes during 1880–4 see Doctor to Basuto, Boer and Briton 1877–1906: Memoirs of Dr. Henry Taylor, CapeTown, 1972, 59–103, 109.Google Scholar For a general picture of the disputes over the chieftainship in the Molapo wards during 1868–1920 see Jones, G. I., “Chiefly Succession in Basutoland”, in Goody, J. (ed.), Succession to High Office, Cambridge, 1966.Google Scholar

page 70 note 1 The Basuto (O.U.P., 2nd ed., 1967), pp. 193–4.Google ScholarPubMed

page 70 note 2 Op. cit., p. 69.

page 70 note 3 See also Jingoes, S. J., A Chief is a Chief by the People, London, 1975.Google Scholar

page 71 note 1 The rule first appeared in written form as section 4 of Part 1 in the 1946 version of the Laws of Lerotholi.

page 71 note 2 Despite the apparent statement to the contrary by the High Court in Qhobela v. Qhobela, High Court Civil Appeal No. 24 of 1943, which was accepted without argument by the Court of Appeal in the present case.

page 72 note 1 The most important of these, Qhobela v. Qhobela (above), is referred to in Duncan, P., Sotho Laws and Customs, London, 1960, 19.Google Scholar

page 73 note 1 The correspondence is reprinted in Report and Evidence of a Commission on Native Laws and Customs of the Basutos (Saul Solomon & Co., 1873), 21–31.Google Scholar

page 73 note 2 Report and Evidence, 40–1, 43–4.

page 74 note 1 High Court Civil Appeal No. 8 of 1946.

page 75 note 1 Laws of Lerotholi, Part II, s. 8. This provision was first incorporated in the 1946 version of the Laws.

page 75 note 2 Support for this is available in Sekese, A., Mekhoa le Maele a Basotho, Morija, 1907; reprinted 1968, 30.Google Scholar

page 76 note 1 This is a reference to section 9 (1) of the Central and Local Courts Proclamation 1938 in terms of which the customary courts may only administer Sesotho law “so far as it is not repugnant to justice or morality”.