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Published online by Cambridge University Press: 28 July 2009
Legislation in Lesotho concerning marriage has proceeded along unusually haphazard lines. Confusion and difficulty appear to have arisen in the territory as a result of the absence of any legislative foresight, with the result that statute law remains silent on many essential points, and there has been constant failure to consider the position as a whole.
page 168 note 1 Proclamation No. 15 of 1960.
page 169 note 1 Unreported: Civil Application No. 26 of 1964.
page 169 note 2 Cf. Subordinate Courts Proclamation, s. 16 (1), proviso 2: “…in any case where both parties are Africans, the court may order that the action be transferred to a Basuto court of appropriate jurisdiction…”
page 169 note 3 Proclamation No. 5 of 1964, s. 23.
page 169 note 4 Proclamation No. 5 of 1964, s. 12 (2).
page 170 note 1 See the remarks of Dr. Morris on a similar situation in Uganda: [1966] J.A.L., 3. a t P. 6.
page 170 note 2 Marriage Proclamation, No. 7 of 1911.
page 170 note 3 Lesotho has no Penal Code.
page 170 note 4 Section 18.
page 170 note 5 Section 23.
page 170 note 6 The Restatement of Sesotho Customary Law: The Law of Marriage (prepared on behalf of the Ministry of Justice).
page 170 note 7 See p. 22. “Bigamy is committed by any person who purports to contract a legally recognized ceremony of marriage with another person during the subsistence of a valid marriage to which he or she was one of the parties, such existing marriage being of a class which expressly excludes all others while it lasts.”
page 170 note 8 Gardiner, & Landsdown, , South African Criminal Law & Procedure, Vol. 2, p. 1181.Google Scholar
page 171 note 1 The law of Lesotho includes Cape Province statutes until 1884.
page 171 note 2 Gqamse v. Stemele, 1 N.A.C. 113.
page 171 note 3 Zonyane v. R., 1912 E.D.L. 361 and other cases.
page 171 note 4 As an example of the different attitudes compare s. 226 (3) of the Criminal Procedure Act, 1955, of the Republic with s. 213 (3) of the Basutoland Criminal Procedure Proclamation No. 59 of 1938 as amended by No. 35 of 1957. The former places partners of customary unions on a par with unmarried people as regards competence and compellability, the latter specifically accords them married status.
page 171 note 5 (1946), S.R. 12, cited in R. v. Tarasanwa (1948), 2 S.A. 29.
page 172 note 1 The reader is referred to the decision of the Court of Appeal for Basutoland, Bechuanaland and Swaziland in the case of Khatala v. Khatala, reported at p. 173, post, which also discusses the choice of law problems arising from the marriages of Basotho under the Marriage Proclamation.
