Inheritance rights in Lesotho flows as a matter of blood or a valid marriage. A large
number of Basotho widows are disinherited for failure to prove the legality of their
marriage. In many cases there is no documentation of such marriages. This however
happens irrespective of the fact that both families have impliedly consented to the
marriage. This paper reviews the extent to which customary law practices/rituals
engaged into for purposes of marriage receives legal recognition within the legal
system of Lesotho as indicators of a valid customary law marriage. It has been argued
over the years that “ho- shobela”(elopement), followed by customary law rituals like
the acceptance of a bride through slaughtering of goat, name giving rituals and others
do not constitute a valid customary law marriage. The position of the law, has been
and is that there has to be written agreements as prescribed under section 34(1)(a) and
(b) of the laws of Lerotholi. 1 In recent years however, the courts in the case of Lifero
v Lifero 2 stated that it cannot be said that absence of the written agreement between
parents on the marriage and on the payment of bride price (bohali) nullifies a
marriage. The court went on to state that there was a tacit agreement on the existence
of marriage between the parties.
Under customary law, we have the concept of “ho shobela”(elopement). Elopement
under customary law takes place when a man who is of legal age to marry, elope with
a girl who has reached the age of majority to his home. In most cases when they arrive
at the man’s house, the family makes arrangements to let the girl's family know of her
whereabouts. If the girls' family do not dispute such elopement, there is a formal
acceptance ceremony (ho amohela ngoetsi) of slaughtering a sheep (nku ea koae) in
which the ribs are given to the new bride and the expectation is that she must not eat
it. This ceremony is followed by a name giving ceremony where the mother or aunts
of the groom will give the bride a new name, dressed in seshoeshoe dress and other
garb as a sign that she has been accepted as part of that family.
It is a common practice in our country that ho shobela is deemed as a marriage,
though legally such is not. This practice has grown over the years, and it is largely
practiced in rural areas. Couples turn to stay together and be regarded and accepted as
husband and wife by both their families, their relatives, and their community. They
turn to support and maintain each other, all in all, their relationship is similar to and
regarded as that of a legally recognized marriage. Lesotho as opposed to some
western countries, still value its traditional and cultural beliefs, despite the influence
from those western counties. The practice of ho shobela as detailed in the laws of
Lerotholi is deeply rooted in their culture.
However, as is always the case, issues regarding the existence of marriage,
conveniently, arise in the immediate aftermath of the deceased’s passing on. One
cannot resist the temptation to hazard an educated guess that this denial of the
existence of marriage has a lot to do with the deceased’s terminal benefits. This is
mostly based on the assertion that section 34(1)(b) of the Laws of Lerotholi was not
satisfied. The requirements of a valid customary law marriage, as contained under the
laws of Lerotholi are as follows; “34. (1) A marriage by Basuto custom in Basutoland
shall be deemed to be completed when:
(a) there is agreement between the parties to the marriage;
(b) there is agreement between the parents of the parties or between those who stand
in loco parentis to the parties as to the marriage and as to the amount of the bohali. 34
It is common cause that under elopement, there is an agreement to the marriage
between the parties. The two other requirements are not adhered to. Mokesi J, at para
21, in the case of Lifero v Lifero 5 stated that;
“The Laws of Lerotholi do not appear to cover a situation of … elopement
where a bride and bridegroom live happily after the fact, … should the
‘marriage’ be held to be invalid for not complying with the requirements of
S.34 (b) that there must be agreement between the parents as to the marriage
and payment of bohali. In my considered view that should not be the case.”
Over and above this, the court in the case of Ramaisa v Mphulenyane 6 at p. 152,
wherein the learned Chief Justice Cotran CJ said;
(c) That the words “agreement” of the parties and their parents to the
marriage and “agreement” as to the amount of bohali, and payment thereof,
should[not] be read in the abstract or in isolation of other terms, express or
implied, as to the true intention of the parties and their parents at the time,
this latter to be ascertained after examination of all the evidence and the
surrounding circumstances.
It is true that when the parties elope, there is an existence of an agreement between
the parties. However, the customary rituals performed after such elopement constitute
an implied agreement between the parents of the parties, in essence the marriage was
tacitly concluded by both families. It is true that both sides have not sat down to
agree on the marriage, but the conspectus of the factual scenario in which there is a
welcoming ceremony, the sheep slaughtering rituals and others points only in the
direction of a tacit conclusion of the marriage agreement.
Additionally, to answer the question whether non agreement between the parents on
the marriage and payment of bohali invalidates such a marriage or not? W.C.M.
Maqutu at p. 184, 7 says: “…once the husband’s family had accepted the woman as a
daughter-in-law, the matter was out of their hands. Everything from that point
depends on the girl’s parents. The boy’s parents and family should be barred or
estopped from denying there is marriage. The reason being that the question of
bohali, its amount and how the debt is to be liquidated is something that entirely rests
on the decision of the girl’s parents. The boy’s family cannot or ought not to be
allowed to deny the existence of marriage, when the girl’s parents out of decency and
generosity gave them time to prepare for marriage negotiations and thereby bring a
portion of the bohali.”
6 1977 LLR 138.
7 [2005]Contemporary Family law, 2nd Ed.
The interpretation of section 34 has always been said not to embody a comprehensive
statement of all the Sesotho customary law. This statement was made in the case of
Ramaisa v Mphulenyane. 8 For clarity, the facts of this case are as follows; One Z
agreed to marry M. The families on both sides consented to the proposed marriage. As
a result of this agreement 17 heads of cattle were delivered to M's family. No other
customary ceremonies took place. Before M could be "handed over" to the family of
Z, she met one R whom she agreed to marry. The couple later married under civil law
without informing their respective parents. The court's conclusion was that customary
law marriage was not completed. The court indicated that, the use of the words
"deemed to be completed" in the provisions shows that once the elements outlined
therein are fulfilled that constitutes a prima facie proof, but not conclusive proof that a
Sesotho customary law marriage is complete.
As a result, parties should not just be deemed to be married, they should be seen to be
married and in most cases that is seen in the ceremonial rituals engaged in. In this
case, the court went further to indicate that where the parties live together as husband
and wife, that should be taken as conclusive proof of the marriage. The question of
time does not matter in this regard as long as it can be proved that the parties have
shared a common place of abode. The court held that where the parties do not live
together as husband and wife, there is prima-facie no valid marriage and that the onus
of proving that such marriage exists rests with the person asserting that there was a
manifest intention to create a marital relationship.
The most important case in this article is Ramootsi v Ramootsi, 9 The court stated that,
absence of the agreement between the parents and the payment of bohali does not
invalidate the existence of a marriage. Ramodibedi J made reference to Patrick
Duncan: Sotho laws and Custom, where he said, “Marriage takes place with payment
of cattle or sometimes without, but it depends on the wishes of the parents of the
8 ibid.
9 ibid
girls.” He utilized the living customs of the people as they responded to the realities
to develop the law. The judge went on to state further that, what is fundamentally
important is the agreement by the respective parties, expressed or implied [own
additions] to create a validly binding customary marriage regardless of bohali.
It is therefore proper to conclude that agreement to the marriage and payment of
bohali depends solely on the agreements between the parties to the marriage. The
general sense of justice of the community requires that the ho shobela practice be
developed and regarded as part of the requirements of a valid marriage, where the
parties have proved expressively and/or tacitly that they intend to get married to each
other. Eugen Ehrlich (Austro-Hungarian) stated that law should be located in the
present-day institution of its society. In his book, Fundamental Principles of the
Sociology of Law, he points the law’s place in society:
“At present as well as at any other time, the center of gravity of legal
development lies not in legislation, nor in juristic science (jurisprudence), nor
in judicial decision, but in society itself”.
As a result, Ho shobela practices should be accepted as a sign to a commitment of
marriage so as to accommodate the already existing practices in the society.
