CIV/APN/235/84
IN THE HIGH COURT ' OF LESOTHO
In the matter of :
REGINA MALEKE Applicant
And
MOTETE SAMUEL MALEKE Respondent
JUDGMENT
Delivered by the Hon. Mr. J.L. Kheola on the 16th day of April, 1985
This is an application for committal to prison of the Respondent for contempt of court. On the 26th March, 1984 the Applicant obtained an order against the Respondent couched in the following terms:
1. (a) Respondent be and is hereby directed to leave Applicant in peace pending the determination of CIV/T/133/84 by the above
Honourable Court.
(b) Respondent be and is hereby directed to stop harassing Applicant;
(c) Respondent be and is hereby directed to allow Applicant to remove all her personal effects from home at Motloheloa;
(d) Respondent be and is hereby directed to stop the sole of vehicles Reg. Ncs. A 4642 and ON 2508 referred hereto pending the
determination of CIV/T/133/84;
(e) Respondent be and is hereby directed to account to Applicant respecting the banking of funds of Maleke
Butchery pending the determination of CIV/T133/84;
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(f) Respondent be and is hereby directed pendente ]ite to grant the custody of the minor children to Applicant.
On the 3rd May, 1984 another order was granted against the Respondent and it reads as follows:
Respondent be and is hereby directed to pay maintenance to Applicant in the amount of M150-00 per month with effect from the 14th May, 1984.
Respondent be and is hereby directed to pay maintenance of the eldest child in the amount of M75.00 per month with effect from the 14th May, 1984
Respondent be and is hereby directed to pay maintenance of the younger and the youngest children at the rate of M50-00 per month per child with effect from the 14th May, 1984.
Respondent be and is hereby directed to pay the costs of these proceedings.
In her founding affidavit the Applicant avers that the Respondent refuses to maintain her and the children of the marriage; he refuses with the custody of the minor children, he refuses to account For the money of the butchery to her and he harasses and assaults her ana forces her to have sexual intercourse with him. She further states that on the 13th September, 1984 the Respondent forcibly removed two of the minor children of the marriage from her lawful custody. On the 31st October, 1984 at about 6.30 p.m. and at Mazenod she was collecting moneys from her clients when the Respondent dragged her, squeezing her breasts and dragged her to his house at Mazenod. She raised alarm and some villagers came. The Respondent dragged her to his house and had sexual intercourse with her by force. On the following day she went to the charge office and laid a charge of rape against him. She was examined by a doctor at
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Queen Elizabeth II Hospital. She has annexed a medical report which shows that she had a contusion on the left shoulder. Vaginal smears were taken but the report was negative for sperms.
In his supporting affidavit Thabo Matlole states that on the 31st October, 1984 at about 6.30 p.m. he heard the cry of an woman and when came out of his house he saw the Respondent dragging the Applicant who was sitting down and crying. He asked the Respondent why he was doing all that. He replied that he had the right to do that because she was his wife and he continued to drag her up to the door of his house.
In his reply to these serious charges against him the Respondent admits that on the 31st October, 1984 at about 8.50 p.m. he came upon the Applicant and one 'Matsele near the house of Matlole. As the Applicant was disgracefully drunk he asked her as to how she would get to Motloheloa's village where she was staying. She did not know. He then suggested to her that she could sleep at their matrimonial home. She accepted the suggestion and they proceeded towards their home. When they passed near Matlole's house the Applicant asked him to accompany her to one house where beer was being sold. He refused. When she insisted he then started to drag her away. He states that he did this in good will and in an attempt to protect her reputation. It was at this time that Thabo Matlole tried to intervene but he told him to mind his own business. The quarrel was eventually settled and they proceeded home in the company of one 'Mamokheleli. He has been trying, in vain, to get hold of the said 'Mamokheleli to support his averments. She is said to have visited Tsoaing.
The Respondent further avers that on the 3rd May, 1984 the Applicant came back to their matrimonial home and she explained that she did not intend to stay away for long as she just wanted things to cool down. She lived at their matrimonial home and worked at
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business until on the 19th September, 1984 when she ran away leaving the minor children, Thulo and David, behind. The reason why she left was that they had a quarrel over some business monies amounting to R2,183-00 which disappeared while in her care and she was unable to account for it. He annexed two invoices doted the 8th June, 1984 and the 10th June, 1984 as proof that during that period the Applicant was actually working at their butchery because those invoices bear her signature. The Respondent has also annexed a letter or certificate dated the 16th November, 1984 showing that on the 3rd May, 1984 the Applicant returned to nor matrimonial her and left on the 20th September, 1984. I must point out at this stage that this letter is not evidence and I entirely reject it. If the chief wanted to give evidence in favour of the Respondent he ought to have made an affidavit. This letter was written long after these proceedings started. It means that when the Respondent was served with the notice of motion on the 5th November, 1984 he went to the chief and asked him to write the letter. This is an attempt by the Respondent to put in inadmissible evidence in the form of an annexure to his answering affidavit. Ho ought to have obtain a supporting affidavit from the chief.
The Applicant has admitted that the signature of the two invoices mentioned above is hers. However, she states that on those two days she had been invited to the butchery by the Respondent who had promised to account to her in terms of the court order and that he managed to trap her into signing those two invoices. She denies that the money disappeared while in her care.
The order of the 26th March, 1984 was very clear that the Respondent must leave the Applicant in peace and must stop harassing her. In his own words the Respondent admits that on the 31st October, 1984 at about 8.50 p.m. he harassed the Applicant by dragging her to their matrimonial home. He alleges that he did this in good faith
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and in an attempt to protect her reputation. There is no doubt from the evidence in the papers that the Applicant was dragged to their home against her will and that she was screaming all the way up to the door of her house. Respondent's conduct towards the Applicant amounted to assault and when Thabo Matlole tried to intervene the Respondent told him to mind his own business. It was submitted on behalf of the Respondent that the medical report does not support a case of rape because there were no sperms found in the vaginal smear obtained from her, however the doctor found a confusion on the left shoulder which was proof of assault. In my view even if the Applicant had not sustained a scratch the act of dragging her against her will constituted an assault. It is altogether improbable that the quarrel was eventually settled and that the couple proceeded to their marital home in peace and in the company of one 'Mamokheleli. If that had been the case the Applicant would not have laid a charge of rape against the Respondent on the following day. The fact that she laid a charge against him on the following day, taken together with the evidence of the Applicant which is corroborated by Thabo Matlole, is a convincing proof that the Applicant was unwilling to go to thier matrimonial home.
With regard to Applicant's averment that the Respondent refuses to maintain her and their children, that he refuses to account to her for the money of the butchery and that he refuses to give the custody of the minor children of the marriage to her, I have come to the conclusion that there is a dispute of fact concerning these points. There are two invoices signed by the Applicant which are proof of the fact that on the dates appearing on the invoices the Applicant was actually working at the butchery. She explains that the Respondent trapped her to sign those invoices. I do not know what she means by trap. The Respondent avers that at that time the Applicant was actually living at their matrimonial home and that he was maintaining her and the children. It may be that the Applicant was actually
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living there or that she was cheated by the Respondent and made her to sign the invoices. I do not know.
The onus is on the Applicant to show a disobedience of the court's order but once that is proved the Respondent must show that it was not wilful (Van Biljon v. Van Biljon, 1960 (1) P.H. F28). There is no doubt that the Applicant has shown that the Respondent disobeyed the court order by harassing her and assaulting her. The Respondent has tried to justify his acts by saying that he was protecting the good name of the Applicant. Before he started to drag her there is no evidence that she was committing any disgraceful acts which entitled the Respondent to intervene. He had no right whatsoever to harass the Applicant. He knew very well that he was not even opposing the divorce action that was pending in court at that very moment.
The two court orders referred to were served upon the Respondent personally and he knew them very well when he harassed and assaulted the Applicant.
For the reasons given above the application is granted as prayed in terms of prayer 1 (a) and (b).
J.L. KHEOLA
JUDGE.
16th April, 1985.
For Applicant : Mr. Gwentshe
For Respondent : Mr. Sooknanan
