One of the problems a colonial court faced was the impact of so-called "civilisation" on
the local customs of the indigenous inhabitants. The latter were constantly coming
into conflict with the changed circumstances resulting from the advent of the white man.
In Basutoland (now Lesotho) in the late colonial era in the '50s and '60s, three crimes
still carried the death penalty, namely murder, treason and rape. In practice rape was
difficult to establish and because of fear of a wrong conviction, the courts imposed a lesser
penalty, generally one of imprisonment.
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
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.
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.