HIGH COURT OF LESOTHO
Matter between :
by the Hon. Mr. Justice B.K. Molai on the 19th day of January, 198 7.
January, 1985 Plaintiff herein filed with the Registrar of this court
summons commencing an action in which she claimed
defendant, for an order of restitution of conjugal rights failing
compliance therewith a decree of divorce on the ground
constructive desertion, forfeiture of the benefits arising out of the
marriage, costs of suit, further and/or alternative
filed a notice of appearance to defend the action.
common cause that defendant and plaintiff are domiciled in Lesotho.
They are respectively a civil servant and a school teacher
district of Thaba-Tseka. On 2nd July, 1968 they got married to each
other by Christian rites and the marriage still subsists.
were however,born of the marriage.
declaration to the summons Plaintiff stated, inter alia, that with a
settled intention to sever the bonds of marriage existing
parties defendant had denied her conjugal rights since September
1981, assaulted her in January, March and July, 1982.
As a result
Plaintiff left the matrimonial home and returned to her maiden home.
She submitted that in the premises defendant had
deserted her. Consequently she prayed the court for an order as
plea was, in effect, that Plaintiff was having an illicit love affair
with a certain Pokello Mahlakela. When he insisted
that she should
stop her illicit love affair with the said Pokello Mahlakela.
Plaintiff was uncorporative. It was therefore Plaintiff's
infidelity and insubordination as aforesaid that made
cohabitation with her intolerable and resulted in the fights.
defendant prayed for the dismissal of Plaintiff's claim. To
Defendant's plea Plaintiff filed a replication in which she denied
infidelity and insubordination alleged by the Defendant.
of pre-trial conference purporting to be in accordance with the
provisions of Rule 36(1) of the High Court Rules,1980 were
would appear, however, that the partes agreed to disagree and the
pre-trial conference turned out to be a futile exercise
in as much as
it achieved nothing to curtail the duration of this trial.
as it may, from the reading of the pleadings there seems to be no
dispute that defendant afforded Plaintiff no conjugal
September, 1981 and assaulted her as alleged in the declaration to
the summons. The only question for the determination
of the court is,
therefore, whether or not defendant did so as a result of Plaintiff's
infidelity and insubordination.
regard defendant told the court that Plaintiff was having an affair
with Pokello Mahlakela. Despite his disapproval of it,
continued with her love affair with Pokello Mahlakela. Every time
Plaintiff left home for school, Pokello followed her
on his way to
the fields. One day in 1981 defendant himself was going to get fodder
from the fields when he saw Plaintiff and Pokello
He had seen them together on several other occasions.
evidence Plaintiff conceded that like any other parent of the pupils
at her school, Pokello had on occasions talked to her.
however, that she had any illicit love affair with him.
worth noting that apart from seeing them together defendant does not
mention that he saw Plaintiff and Pokello doing any particular
from which it can reasonably be
that they indulged in an illicit love affair. The mere fact that when
Plaintiff left home for her school Pokello was seen
taking the same
direction on his way to the fields or they were seen talking to each
other cannot, in my view, be a conclusive
proof that the two were
indulging in an illicit love affair.
common cause that on the night of 21st January, 1982 defendant and
Plaintiff were in their house. According to defendant he
three (3) knocks at the door of the house. He went out armed with a
stick and a knife. He looked around but saw nothing.
When he returned
into the house he told Plaintiff that he thought it was a dog
knocking at the door but there was nothing. Plaintiff
then said it
was her husband Pokello and others. An altercation ensured between
him and the Plaintiff when he merely struck her
a blow on the head
with a knife. He denied to have actually scabbed her.
version was slightly different. According to her when he returned
into the house defendant said her concubine was calling
her and she
should go outside the house. She did not know of any such person and
so she refused to go out. Defendant then stabbed
her on the head with
a knife and she sustained an injury. She ran out and reported the
incident to the bugle of the village, one
Lekhotla Mahlakela, who
was, however, not called as a witness in this trial.
morning Plaintiff and defendant were referred to the chief of the
area, one Mothinya Sekonyela who testified as P.W. 3 and
court that he actually saw the injury on the Plaintiff's head. He
immediately ordered defendant to take Plaintiff to a
for treatment and defendant complied.
February, 1982 he was to preside over a family meeting at which
defendant and Plaintiff together with her in-laws attended.
decision was, however, taken at the meeting because it was suggested
that arrangement should be made for Plaintiff's maiden
family to be
represented at such a meeting The meeting was for that reason
postponed to 27th February, 1982. However, on that day
representative from Plaintiff's maiden family turned up and the
meeting did not proceed. On 3rd March, 1982 the matter was referred
to the Local Court of Semenanyana before which the case is still
it were true that defendant heard 3 knocks and thought it was a dog
knocking at the door I find it incomprehensible
that he would
have gone out armed with a stick and a knife. What is more likely is
that he suspected that Plaintiff was having
secret lovers who might
be hovering outside the house. This explains why,according to
Plaintiff's evidence which I am inclined
to believe, defendant told
her that her concubine was calling her and she should go outside the
defendant denied to have stabbed plaintiff on the head with a knife
her evidence that he did is corroborated by the fact
that she had to
go and report the incident to the village bugle at night. Moreover,
P.W.3 told the court that he actually saw the
injury on Plaintiff's
head and considered it to be serious enough to warrant an order that
she should be immediately taken to a
medical doctor for treatment,
and the matter referred to a court of law.
now to the evidence, Plaintiff told the court that on 9th March,
1983, she went to the chief's place and lodged a complaint
defendant was denying her the use of their farm produce, was not
maintaining her and she had nothing to live on. This was
P.W.3. At about 4 p.m. she returned from the Chief's place and on
arrival at the matrimonial home defendant again
assaulted her with a
sjambok. She sustained weals all over the body and thighs.. This
defendant admitted and said he did so because
Plaintiff had arrived
abundantly clear to me that defendant is labouring under a
mistaken belief that a wife is a child to whom he can administer
corporal punishment. To my mind it must be brought home to him that
when he got married to her, Plaintiff was no longer a child.
are any misunderstandings between them they must sit down and discuss
their differences like grown up people.
common cause that after defendant had sjamboked her in the manner
described above, Plaintiff left the matrimonial home
returned to her maiden home from where she reported to the police
that due to defendant.'s behaviour she was unable to return
matrimonial home from where she
able to carry out her teaching duties at Likomeng Primary School. On
2nd April, 1982 Plaintiff and defendant were called
to the office of
the Police Community Relations at Thaba-Tseka where in the presence
of P.W.3 defendant was warned by P.W.2 to
stop assaulting her. This
was confirmed by P.W.2 who told the court that he also advised that
the matter should be referred to
a family meeting.
subsequently returned to her school but she then had to stay at the
chief's place as she was afraid to live with the defendant
matrimonial home. When the school term closed in June, 1982.
Plaintiff returned to her maiden home.
on 23rd June, 1982, her mother was sued before Thaba-Tseka local
court by Defendant's elder brother for keeping Plaintiff
at her home.
Judgment was entered against her mother who was ordered to return
Plaintiff to her matrimonial home. Plaintiff's
with the court order and returned her to the matrimonial home.
the night of 6th July, 1982. defendant then throatled Plaintiff
saying he was not the one who had caused her to return to
matrimonial home. Plaintiff again fled and returned to her maiden
home from where she went to a medical doctor for treatment.
that was reflected in her health book which was in her possession as
she testified before the court. She had never returned
in his evidence defendant denied to have assaulted Plaintiff on 6th
July, 1982 and said she had left the matrimonial home
for no apparent
reason I am not convinced that after she had returned to the
matrimonial home in obedience to a court order, Plaintiff
fled for no good reason. I am prepared to accept as the truth her
story that she did so because defendant had throatled
her during the
night. That granted, defendant's denial thereof must be rejected as
the evidence as a whole, I am unable to find, on a balance of
probabilities, that Plaintiff had committed any act
infidelity or insubordination justifying
to deny her conjugal rights and assault her as alleged in the
declaration to the summons. The question I have earlier
whether or not defendant assaulted Plaintiff and denied her conjugal
rights because of her Infidelity and insubordination
be answered in the negative.
forgoing ft is obvious that the view that I take is that Plaintiff
succeeds in her claim. Defendant is accordingly ordered
conjugal rights to Plaintiff on or before 22nd February, 1987 failing
compliance therewith to show cause on 2nd March,
1987 why Plaintiff
shall not be awarded a final decree of divorce together with the
Plaintiff : Mr. Monaphathi
Defendant : Mr. Pheko.
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