Laws of Moshesh

The difficulty of convicting an accused person of rape arose from the custom of bohali (in Swaziland and Natal called lobola) or "bride price". If a man wanted to marry he had to approach the intended bride's parents and negotiate with them how many cattle they required as a bride price for their daughter. Often the family would demand a high price for her, and it was common for children and even grandchildren to be paying off in instalments the bohali owed for their mothers and grandmothers. However the Laws of Lerotholi (a short compilation of some common customary laws published in the early days of British occupation at the request of the local inhabitants) provided a way out. One of the commonly used laws provided a fine of six head of cattle for a "first seduction" of a woman. Obviously the compilers of the Laws had no idea what seduction meant as there was a higher fine stipulated for a "second or subsequent seduction" of the woman concerned.

This light fine was seized upon by love-lorn swains as a way out of incurring heavy debt and, often with the connivance of the intended bride, her companions and often a kindly grandmother, the young man would bide his time until he obtained a signal, then swoop on the young maiden and carry her off into the bushes to consummate their love. While this was going on the young maiden would modestly scream and put up a dreadful struggle in order to lend credence to the affair. Any members of the family in the vicinity (from whom the stunt had to be held secret) would rush to her "rescue."

For this reason it was often difficult to distinguish rape from a friendly "seduction" and the courts were lenient. There were, of course, genuine rape cases. I have convicted many male school teachers who have had intercourse with young girls in their classes, often under the age of consent, and I had one case where an elderly woman was chased over the hills by herd boys and, when caught, was gang-raped.

In one case a nurse, who had clearly abandoned a customary way of life and was living as a European would, was raped on her way home to her cottage in the hospital grounds. She was a widow with two young girls aged about 13 and 15. Her deceased husband's brother had approached her and demanded to 'kenela" her. "Kenela" is a custom which allows the brother of a deceased male to take over his brother's widow in order to raise issue from her in his brother's name. The nurse had refused, so one dark night when she was returning to her quarters he dragged her into the bushes and raped her. He raised the "kenela" custom as a defence at his trial, his counsel arguing that the Basutoland Order in Council had preserved Basuto law and custom in the Territory. I agreed that it had done so but it was qualified by the words "to the extent that it is not inconsistent with natural justice and morality" and held that in the present instance the exercise of the custom against the wishes of the complainant was clearly contrary to natural justice and morality.

The "kenela" custom clearly plays an important role in customary life. It ensures that a male relative becomes responsible for and takes care of his brother's widow and family. But in modern times it has often gone horribly wrong. I have come across cases where the deceased's brother (and in one case in the absence of a surviving male relative, an elderly maiden aunt) have taken from the widow all that she possessed, her furniture and even her clothing, and that of her children, including their shoes, leaving them with the barest minimum to wear. In earlier times there would have been land or cattle for the incoming male to take, but now that cannot be done. When this was reported to the chiefs they merely shook their heads sadly and muttered "that is the law", as indeed it is, as in customary law women and children own no property. It all belongs to the husband into whose shoes his brother steps upon his death to inherit all.

Basuto Village

My own private, if somewhat cynical, view of the position in the rape case mentioned above is that the accused was simply trying to get his hands on the bohali for the two daughters of the complainant who, since they had reached puberty, were generally regarded by the locals as of marriageable age. As they had attended good schools and been well brought up, no doubt the accused thought he could demand a very good bride-price for them. The mother's furniture belonged to the hospital, but he would no doubt want to get his hands on her salary and any items of value she might possess.

These provisions of the Basutoland Order in Council were quoted to me in another case by counsel for the defendant. In Basutoland, as in other Southern African territories, the marriage laws provided for civil ceremonies as well as for customary unions. In Basutoland Part I of the Marriage Proclamation provided for the former and Part II for the latter. The case was brought by the wife of a very senior and respected clerk in the Secretariat. She proved that she was married to him in a church under Part I of the Proclamation and that he had since taken unto himself a customary wife. She claimed a divorce on the ground of his adultery. He admitted these facts, but his counsel referred to the Basutoland Order in Council and said that Part II of the Proclamation clearly indicated that his rights to marry in accordance with Basuto Law and Custom were preserved. I referred to the Rhodesian case of R. v. Kaodzo, in which I think the judge was none other than Tindall, C.J. It appeared that the same legal provisions obtained at that time in that country, except that instead of them being contained as separate parts of the same piece of legislation, they were in two separate Acts. The case was a criminal one, the accused being charged with bigamy, but the defence was similar to the instant case. Tindall, if it was indeed he, convicted the accused pointing out that the accused had a choice of marriage rites, but once he had made his election to be married under civil law, he "could not thereafter hark back to his primordial customs." (Wonderful non-PC language that would not be tolerated today!)

My decision upset the Attorney-General, Arthur Clement Thompson, Q.C. who stormed into my chambers and wanted to know what the hell I was playing at. He added that if I thought he was going to charge Basuto men wholesale with bigamy I was very wrong indeed. He would ruddy well have to charge all the Basuto in the Territory, including the Paramount Chief. I pointed out that my case was one of divorce, not bigamy, and that I had not suggested for one moment that he should proceed on a crusade of prosecutions. In fact, most probably few if any were married under both Parts of the Proclamation and if any were, he might take the view that bigamy had atrophied by disuse in Basutoland. I reminded him of an old Cape case where the court had held that the crime of adultery in Roman Dutch Law had atrophied by disuse as there had been no prosecutions for the offence for over 100 years - during which time undoubtedly adultery had been committed. As South African (Roman Dutch) law obtained in Basutoland, he would be able to use that as an authority if need be.