'Mapaballo Pule V Rethabile Pule (CIV/APN/142/2022) [2023] LSHC 18 (7 March 2023)

# 'Mapaballo Pule V Rethabile Pule (CIV/APN/142/2022) [2023] LSHC 18 (7 March 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/18/eng@2023-03-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/18/eng@2023-03-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/18/eng@2023-03-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/18/eng@2023-03-07) [ __](mailto:?subject=Take a look at this document from LesLII: 'Mapaballo Pule V Rethabile Pule \(CIV/APN/142/2022\) \[2023\] …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/18/eng@2023-03-07) [ Download PDF (259.0 KB) ](/akn/ls/judgment/lshc/2023/18/eng@2023-03-07/source) Report a problem __ * Share * [ Download PDF (259.0 KB) ](/akn/ls/judgment/lshc/2023/18/eng@2023-03-07/source) * * * * * Report a problem __ ##### 'Mapaballo Pule V Rethabile Pule (CIV/APN/142/2022) [2023] LSHC 18 (7 March 2023) Copy citation * __Document detail * __Related documents * __Citations 6 / - Citation 'Mapaballo Pule V Rethabile Pule (CIV/APN/142/2022) [2023] LSHC 18 (7 March 2023) Copy Media Neutral Citation [2023] LSHC 18 Copy Hearing date 7 November 2022 Court [High Court](/judgments/LSHC/) Case number CIV/APN/142/2022 Judges [Hlaele J](/judgments/all/?judges=Hlaele%20J) Judgment date 7 March 2023 * [4 April 2023](/akn/ls/judgment/lshc/2023/18/eng@2023-04-04) * [7 March 2023](/akn/ls/judgment/lshc/2023/18/eng@2023-03-07) Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) * [Court's leave](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure-courts-leave) Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **HELD AT MASERU CIV/APN/0142****/2022** In the matter between **‘MAPABALLO PULE APPLICANT** **AND** **RETHABILE PULE RESPONDENT** **Neutral Citation** : Pule v Pule [[2022] LSHC 18](/akn/ls/judgment/lshc/2022/18) Civ (07 March 2023) **CORAM : HLAELE J.** **HEARD :** 07 NOVEMBER 2022 **DELIVERED :** 07 MARCH 2023 **SUMMARY:** _An application in terms of Section 6 of the High Court Act 1978. What exceptional circumstances should exist to enable the High Court to acquiesce an application to grant leave for an applicant to approach the High Court instead of the Local Court_. **_ANNOTATIONS_****:** **_CITED CASES_** : 1. Moletsane v Moletsane (CIV/APN/534/11) [[2013] LSHC 89](/akn/ls/judgment/lshc/2013/89) (28 May 2013); 2. Lesetla v Matsoso (27/2001/CIV/A/14/2000) [[2002] LSCA 14](/akn/ls/judgment/lsca/2002/14) (11 October 2002) 3. Hoohlo v Lesotho Electricity Company (C of A (CIV) 09/20) [[2020] LSCA 23](/akn/ls/judgment/lsca/2020/23) (30 October 2020); 4. Letsie v Maseru City Council C of A(CIV) no 12 of 2016 LSCA 38(28 October 2016) **_STATETUS_** 1. High Court Act 2. **The Central and Local Courts Proclamation****** Act 3. **The Range Management and Crazing Control[Act No39 of 1980](/akn/ls/act/1980/39) ** 4. **Stock Theft[Act 4 of 2000](/akn/ls/act/2000/4)**. 5. **The Criminal Procedure & Evidence [Act No. 9 of 1981](/akn/ls/act/1981/9)** 6. **** Companies [Act No 18 of 2011](/akn/ls/act/2011/18) **__** **BOOKS** 1. WCM Maqutu & AJGM Sanders. 1987 “The internal conflict of laws in Lesotho.” XX CILSA 1987. P377-404 **_JUDGMENT_** **HLAELE J** **[1]****BACKGROUND** 1.1 This is an application brought by the Applicant who seeks to oust the Local Court from dealing with her divorce. She has as a result approached this court under Section 6 of the High Court Act for leave of the court to institute the divorce in the High Court. To this end, her prayers are couched in the Notice of motion as thus: 1. An order for leave of Court to enable Application to institute divorce proceedings in this Honourable Court. 2. Costs of suit in the event of opposition. 3. Applicant be granted further and/or alternative relief. **[2]****FACTS WHICH ARE COMMON CAUSE** 2.1 It is common cause that the parties herein are married by customary rites. They were blessed with 2 children who attend a local private international school. These litigants have amassed a considerable amount of property which could be counted in a few millions. They also own shares in a local company namely Pick ‘n Pay. **[3]****DISPUTED FACTS** 3.1 The disputed facts are the exact amount of the property. It is however agreed that it is considerable. Other facts which are disputed are peripheral, such as how many lovers caused the Applicant to seek divorce on the grounds of adultery. What seems to be agreed, although reluctantly by the Respondent, is that indeed there was adultery. **[4]****ISSUES FOR DETERMINATION** 4.1 The following were presented to the court as issues for determination; 1. Did the parties lead a customary mode of life. 2. What conditions do the parties have to meet in order to successfully persuade this court to grant them leave to institute an action in the High Court where a subordinate court enjoys subject matter jurisdiction. **[5]****THE MODE OF LIFE TEST** 5.1 The applicant has relied on the mode of life test. Her submission being that the parties have abandoned the customary way of life in favour of the so-called European mode of life. As such, the argument continues, the divorce matter between the parties should be litigated in the High Court as opposed to the Local Court. 5.2 This reasoning presupposes that law and culture are static. It gives the impression that the way of living of Basotho in general can be determined by factors that are so outdated that it makes a mockery of the Basotho custom. The test as set in the proviso to section 3(b) of the Administration of Estates Proclamation cannot find meaning and expression in the modern-day Mosotho, not even one who is living in the rural arears. This court does not attempt to invent a new test, neither is it prepared to say that a Mosotho who lives a customary mode of life is one who lives in a house which does not have windows or one who sits on the floor when having dinner. Maqutu lamented the same when he wrote; _The "way-of-life" test contained in the proviso to section 3(b) of the Administration of Estates Proclamation poses serious problems. When can a person be said to have abandoned tribal custom and adopted a European mode of life, and if the deceased was married according to civil rites, what would the effect be of a co-existing customary marriage? Half a century has passed since the enactment of this proclamation, and the country is none the wiser_.[1] His tears continue to pour out as he observes; _Factors considered were the place where the deceased lived, the nature of his employment, church membership, educational standards, adherence to the customary law, style of dress, eating and sleeping habits, the possession of a motor vehicle, the operation of a bank account, and recourse to professional legal services. Needless to say, that the above judgments were delivered by foreign judges who had very limited experience of Basotho society, and indeed of the history of their own European culture and the way it has borrowed from other civilisations._ 5.3 The fact that the parties herein are married by customary rites does not automatically translate to mean that they led a customary mode of life. Neither does the fact that they drive a car mean that they had adopted a European mode of life. Thus, for M/s Makau to suggest that the determining factor in this case is the mode of life that the parties led does not hold water. The reason being that their lifestyle reflects what almost every modern Mosotho is living. In any case, the relevance of the mode of life in this particular case comes to naught, for the determinant issue here is not the mode of life per se. **[6]****APPLICATION IN TERMS OF SECTION 6 OF THE HIGH COURT ACT.** 6.1 Section 6 of the High Court [Act No. 5 of 1978](/akn/ls/act/1978/5) (the High Court Act) states: _"No civil cause or action within the jurisdiction of a subordinate court shall be instituted in or moved into the High Court save by a Judge of the High Court acting on his own motion; or with leave of a Judge upon application made to him in chambers and after notice to the other party."_ 6.2 The reading of this Section does not succinctly state the circumstances which a judge in chambers has to consider in order to grant leave for a case to be moved in the high court despite a subordinate court having jurisdiction. The question therefore may be, is it an issue of competency of the Local Court? Is it an issue of monetary value of that court? 6.3 In **_Moletsane v Moletsane_**** _**[2]**_**, Makaja J had this to say, not only about the jurisdiction of the Local and Central courts, but I believe also about their competency to administer justice under certain statutes. He stated; **_Sec 9 ofThe Central and Local Courts Proclamation_** ___has assigned these courts the power to administer justice on the basis of the Basotho Customary Law or any law which they could from time to time be entrusted with the authority to do so. It is trite that they have historically been so entrusted by a warrant to administer justice upon actions based on the specified statutory enactments or subsidiary legislation. This could be illustrated by reference to the reality that the local courts exercise jurisdiction to try cases involving the offences under**The Range Management and Crazing Control Act No39 of 1980**and the regulations thereof. The Central Courts have in the resent(sic) past been given the jurisdiction through the Minister’s issuance of a warrant to preside over the offences under the **Stock Theft[Act 4 of 2000](/akn/ls/act/2000/4)**. These courts frequently utilize **The Criminal Procedure & Evidence Act No. 9 of 1981 **where the Basotho Courts (Practice and Procedure Rules)__are silent or unclear about the procedure to be followed. They have this dispensation under**Rule 11 of the Central and Local Court Rules 1961**._ 6.4 A somewhat different view was expressed by the Court of Appeal in the case of **_Lesetla v Matsoso_** ,[3] the court had this to say about the competence and jurisdiction of the Local and Central Courts; _The courts established under the aforesaid Proclamation_ _ are creatures of statute and the extent of their jurisdiction is subject to the limits prescribed by the enactment. Their jurisdictional powers are provided for in sections 6, 9 and 10. In brief, they are authorised to administer Sesotho law and certain statutory provisions but they may not entertain disputes under the common law (see ** _Poulter:_** Legal Dualism in Lesotho at 18). _ The same court continued to say; _The question, therefore, is not whether we should authorize customary courts to determine cases relating to motor vehicle accidents,_but whether the law concerning road traffic accidents is part of the customary law of the country_. If it is not, then this court cannot, under the guise of developing the customary law, rule that Local and Central Courts should exercise a jurisdiction which the 1983 Proclamation did not bestow on them. That would be a matter for the legislature._ __(My emphasis) 6.5 In **_Hoohlo v Lesotho Electricity Company_**[4]**** the Court of Appeal seems to have laid down the conditions upon which the High Court can grant leave for a cause or action to be instituted in the High Court under Section 6 of the High Court Act. The three were stated as follows; _Leave to approach the High Court under s 6 of the High Court Act has three predicates: _ 1. _That the Labour Court and the adjudication machinery under the 1992 Labour Code constitute ‘a subordinate court’ and that the dispute falls within the competence of that machinery;_ 2. _The High Court, being a court of unlimited general jurisdiction in terms of s 2 (1) (a) of the High Court Act, retains residual jurisdiction to entertain the dispute in question:_ 3. _There are exceptional circumstances why the High Court must entertain the matter although it is governed by the 1992 Labour Code.**[5]**_ 6.6 The above dictum seems to suggest that in order for this court to exercise its powers under Section 6 it must consider the three mentioned conditions. I turn to the present case in the light of the dictum. I will substitute Labour Court with Local Court so as to bring the cited conditions within the context of the present case. 6.7 In the present case, the first condition is met in that the Local Court is a subordinate court and the dispute at hand, being a dissolution of a customary marriage falls within its competency. The test, as put in** _Hoohlo’s_** case is that “the dispute falls within the competence of its machinery.’’ 6.8 Secondly and similarly to the **_Hoohlo_** matter, the High Court, being a court of unlimited general jurisdiction in terms of s 2(1)(a) of the High Court Act, retains residual jurisdiction to entertain the dispute in question. This therefore means that this court retains residual jurisdiction and in the event that it decides to assume jurisdiction, it retains the same under this provision. 6.9 The third condition which is preferred by **Hoohlo****** is, whether there are exceptional circumstances that exist that would entitle the High Court to entertain the matter although it is a case whose issue is governed by the Central and Local Courts Proclamation. 6.10 It is this third condition that the parties addressed me on during the hearing of the application. **[7]****THE EXISTENCE OR OTHERWISE OF EXCEPTIONAL CIRCUMSTANCES** 7.1 It was M/s Makau’s contention that there existed exceptional circumstances presented by this case which would persuade this court to grant leave for this matter, that is the divorce of the parties, to be heard by the High Court. The first was that the parties had abandoned the customary mode of life. I have already made a finding that the mode of life led by the party is not a decisive factor. One of the major reasons being that I find the test outdated and unreliable. 7.2 Secondly, she provided that the value of the property held by joint estate far exceeded the jurisdiction of the Local court. For this she relied on the case of **_Letsie v Maseru City Council_** _._[6]__ She**** estimated the property value to be five Million. This value is not determined by any expert. Mr. Molapo disputed the amount of 5 million but did concede that the property was substantial to the extent that it indeed exceeds the jurisdiction of the Local Court. Mr. Molapo’s contention on this issue of the jurisdiction of the Local Court being ousted by the value of the joint property was that it would set what he termed a very bad precedent for the High Court to assume jurisdiction on this ground because this would mean any other case would be ousted considering that the value of a cow is M12,000.00. For this he relied on the case of **_Moletsane v Moletsane_** above to make his case. 7.3 I agree with Mr. Molapo in this regard. The cumulative value of the Matrimonial property should not be a determining factor when a court decides to grant leave to oust the jurisdiction of a subordinate court in divorce matters. 7.4 M/S Makau continued with her submissions and argued that the joint property of the parties included company shareholding. This shareholding would also be the subject matter of the dissolution of the property. On this issue of shareholding, her argument was that the issue of division of shareholding is the exclusive purview of the High Court as provided by the Companies [Act No 18 of 2011](/akn/ls/act/2011/18). She specifically relied on Section 2 thereof which defined court as follows _“court” in _relation to a company means the High Court of Lesotho_ , and in relation to any offence against this Act, includes a subordinate Court having jurisdiction in respect of that offence;_ _(My emphasis)_ 7.5 Expanding her argument in this regard, she argued that any issue in relation to the shareholding is connected to a company law. As such, the argument continued, section 2 of the Companies’ Act has determined that such matters fell under the exclusive jurisdiction of the High Court. I believe she was arguing along the lines of **_Lesetla v Matsoso_** above. That is, the Local Court can only deal with some but not all statutes. More so where their jurisdiction has been ousted by the said statute. I am inclined to agree with M/s Makau here. I find that the issue of determining shareholding in the company or where the ownership has to be determined after the dissolution of a divorce are matters related to company law. I am persuaded by the dictum in **_Lesetla’s_** case above wherein the court quizzed that the main question is “ __whether the law concerning__ __ road traffic accidents is part of the customary law of the country.” __ I ask the same, i.e, whether company law is part of the customary law of the country. __ Although the issue will be presented in court as division of matrimonial property, in fact and in law they remain issues of company law. The legislature in her wisdom has left such matters in the exclusive hands of the High Court. It is for this reason that I am persuaded that there exist exceptional circumstances that have convinced me to grant leave that the divorce between the parties should be determined by the High Court. 7.6 I am therefore not persuaded by Mr. Molapo’s submission that there are no exceptional circumstances that would warrant this court to take over the matter and as such this matter should be dealt with by the Local Court. I find that the complex nature of division of shares creates exceptional circumstances, more so in the light of the provisions of the Companies Act. 7.7 I therefore come to the conclusion that the divorce matter between the parties should be determined by the High Court. It is for this reason that I make the following order: **[8]****ORDER** 1. Leave of court is granted for the applicant to institute divorce proceedings in the High Court. 2. No order as to costs. \------------------------------ **M. G. HLAELE** **JUDGE** Applicant: Adv M.P Makao Respondents: Adv L.D Molapo * * * [1] _WCM Maqutu & AJGM Sanders. 1987 “The internal conflict of laws in Lesotho.” XX CILSA 1987. P377-404_ [2] _Moletsane v Moletsane (CIV/APN/534/11)[[2013] LSHC 89](/akn/ls/judgment/lshc/2013/89) (28 May 2013);_ [3] _Lesetla v Matsoso (27/2001/CIV/A/14/2000)[[2002] LSCA 14](/akn/ls/judgment/lsca/2002/14) (11 October 2002)_ [4] _Hoohlo v Lesotho Electricity Company (C of A (CIV) 09/20)[[2020] LSCA 23](/akn/ls/judgment/lsca/2020/23) (30 October 2020);_ _**[5]**____Hoohlo v Lesotho Electricity Company (C of A (CIV) 09/20) [2020] LSCA 23 (30 October 2020);__at paragraph 3_ _**[6]**__Letsie v Maseru City Council C of A(CIV) no 12 of 2016 LSCA 38(28 October 2016)_ #### __Related documents ▲ To the top >