HIGH COURT OF LESOTHO
LEKILIKILI MAKHETHA PLAINTIFF
'MABOLASE MAKHETHA DEFENDANT
by the Honourable Chief Justice Mr. Justice J.L. Kheolaon the 2nd day
of December. 1999.
an action in which the plaintiff claims divorce on the ground of
defendant's adultery; forfeiture by the defendant of the
arising Out of the marriage; custody of the minor child of the
marriage and further/alternative relief.
amended counterclaim the defendant claims divorce on the ground of
plaintiff's adultery; custody of the minor child of the
maintenance of the said minor child at the rate of M500-00 per month;
forfeiture of the benefits
out of the marriage; costs of suit; further and/or alternative
relief. In the alternative she prays for :
order of restoration of conjugal rights, failing which a degree of
divorce on the basis of plaintiff's desertion;
of the minor child;
of the said child at the rate of M500.00 per month;
of the benefits arising out of marriage;
and/or alternative relief
parties were married by civil rites and in community of property on
the 23rd July, 1969 and the said marriage still subsists.
plaintiff testified that in September, 1993 the defendant committed
adultery with one Sello who owns a mortuary and sells coffins.
never condoned her adultery. But under cross-examination the
plaintiff stated that in 1992 and 1993 he slept with the defendant.
He went on to say that only two weeks before the family meeting he
stopped sleeping with the defendant. To sleep with a woman means
having sexual intercourse in bed together with her. In one breath the
plaintiff says that he did not condone the defendant's adultery
one Sello, but in another breath he says that he continued to have
sexual intercourse with her. Under cross-examination the
Q. And you had cohabitation at all times?
A. That is so.
Q. In 1991 you had cohabitation with her?
Q. In 1992?
Q. In 1993 you had relations with her?
Q. You slept together?
Q. Right after December, 1993?
A. Two weeks before the date of the meeting we were not sleeping
Q. Two weeks before the date of the meeting, I will come to that, now
what date was the meeting held?
A. I don't remember.
Q. Was the meeting in December
C. Yes it was in December.
answers by the plaintiff are clear and unequivocal admission by him
that he condoned the alleged adultery by the defendant.
In De Moura
v. De Moura and another 1976 (2) S.A. 245 it was held that in action
for divorce on the ground of adultery the evidence
after the commencement of the action the plaintiff and his wife, the
first defendant had continued to have sexual
relations but the
plaintiff in evidence stated that he had no intention of reinstating
the first defendant as his wife and to receive
her back into the
common home. Held, that the continued cohabitation between the
parties and the plaintiff had waived his remedy
for those wrongs.
present case there is conclusive proof of condonation by the
plaintiff of the alleged adultery by the defendant. On this
alone his action ought to
dismissed. However I wish to deal with the evidence on which the
testified that one day in 1993 he accompanied the defendant to Maseru
bus stop because the latter was going to her maiden home
Republic of South Africa.
travelled in his car. He dropped her at the bus rank but did not
leave the area immediately. When he was some distance from
defendant a certain Sello arrived there and kissed the defendant
before they both got into Mr. Sello's car and proceed to Maputsoe.
followed the car up to Lake Side and then went home. What is most
surprising is that the plaintiff did not want to draw the
of the defendant and her boy friend to the fact that he was present
and watching them as they kissed each other. He watched
and did practically nothing. He allegedly followed them for a very
short distance and then came back and went home.
His conduct amounts
to handing his wife over to her boy friend and allowing them to go
and enjoy themselves. A loving husband would
have chased them and
seized his wife and given the man a good lesson.
plaintiffs story is most improbable and has to be rejected. The
defendant's version is that Mr. Sello was a family friend. It
that on the day in question Mr. Sello came to her at the bus rank
after the plaintiff had dropped her there. He offered
her a left to
Maputsoe. She denies that Mr. Sello kissed her. It is most improbable
that Mr. Sello could kiss another man's wife
at a public place
such as a
Maseru bus rank where there are always many people. It has not been
proved that Mr. Sello is a person so morally corrupt
that he is
likely to behave in such an outrageous manner.
plaintiff testified that as a result of the defendant's adulterous
behaviour he convened a family meeting to which he invited
families i.e. defendant's family and his own. None of the defendant's
family attended the meeting. The defendant attended
the meeting. The
plaintiff told the people at the meeting that the defendant had
committed adultery with one Mr. Sello and the
matter was discussed.
The defendant just kept quiet and failed to answer the accusations
made against her. The plaintiff says that
after the matter was
discussed he asked his family to take the defendant to her maiden
home and that she must remain there until
his anger had subsided. The
defendant did not object to this arrangement. Her family did not
object when she arrived there.
plaintiff denies that he chased away the defendant and said that he
no longer loved her. All the things which were allegedly
said to him
by one 'Mapalesa Matsoele are hearsay and inadmissible because he has
failed to call her as a witness. Exhibit "B"
are some letters which were written by 'Mapalesa to the defendant who
was her friend. They are meaningless and
to say about the issue of adultery.
Tlhoriso Mokheleli testified that in 1993 Sello owned a white motor
vehicle. He often parked that vehicle near his (Tlhoriso's)
when he visited the home of "Mapalesa. Unfortunately this
witness does not say whenever Sello visited the home of' Mapalesa
defendant also went there to meet him. He does not refer to a single
occasion when defendant and Sello met at 'Mapalesa's home.
'Mamonaheng Makhetha was one of the members of the plaintiffs family
who was present at the meeting at which the plaintiff
defendant of having committed adultery with one Sello. Her evidence
is to the effect that when the plaintiff made the
adultery the defendant remained silent and refused to answer the
charge against her. The evidence of this witness
is in conflict with
what the plaintiff has told this Court. According to her the
plaintiff told the people at the meeting that
he (plaintiff) was at
Maputsoe border post when he saw defendant kiss Sello. They were both
alighting from Sello's vehicle. She
is obviously mistaken about where
the kissing took place. The plaintiff said it here in Maseru. All it
shows is that P.W.3 is not
a reliable witness. She is either
forgetful or is simply lying.
'Mamolete Sents'o is also one of the plaintiff's family members who
was present at the meeting. She confirms that the defendant
silent when the plaintiff accused her of having committed adultery
with one Sello. She also tells a different story from
that of the
plaintiff. Her version is that it was first decided by plaintiff that
defendant must go and stay at Mokhethoaneng in
the Berea district
where the plaintiff originally came from. Defendant refused to go
there. It was finally decided by plaintiff
that she most go to
Gaudeng where the couple have another home. She agreed to go there.
In his evidence the plaintiff never said
Mokhethoaneng. He never said anything about the couple having home in
Gaudeng where the defendant was ordered to
go. She goes on to say
that she does not know if the defendant was ordered to shut up. She
further said that she does not object
that she (defendant) was
compelled to go.
defendant gave evidence and denied that she kissed Sello at the
Maseru bus stop on that day when the plaintiff dropped her there.
says that she could never do a thing like that in a public place.
She, however admits that Mr. Sello arrived at the bus stop
plaintiff had left. Mr. Sello gave her a lift to Maputsoe. She denies
that she ever admitted to plaintiff that she kissed
Sello. She says
that Sello was her family friend. At one time her telephone was out
of order. Sello used to bring them their messages.
It is significant
that this allegation was
denied by the plaintiff. The reason why Sello stopped coming to her
place is that the plaintiff warned him to stop coming to
because he offers lifts to other people's wives.
the plaintiff's adultery with one Rosemary the defendant testified
that on the 10th November, 1993 she sat alone in her
house at night
until 11.00p.m. The plaintiff decided to remain in the butchery until
that late at night. She went to the butchery
and noticed that the
lights in the butchery were off. She threw stones on the roof.
Plaintiff was apparently surprised and opened
the door. His zip
fastener was unfastened. Defendant says that when the plaintiff
opened the door and saw that it was she, he punched
her on the mouth.
She ran away shouting. Her son came. The plaintiff and Rosemary later
came out of the butchery.
25th November, 1993 it was again at night. She went to the butchery
and entered. She found Rosemary's dress on the table.
pushed her out of the butchery.
3rd December, 1993 the plaintiff had gone to Thaba-Nchu in the
Republic of South Africa. At night she made a telephone call
plaintiff at the
where he was staying. The telephone was answered by Rosemary. If this
allegation is true, it means that the plaintiff and
sleeping in the same room as a couple. The plaintiff admits that he
went to Thaba-Nchu hotel with Rosemary because
he worked with her.
However he does not explain what work he was doing at the hotel with
her. He does not admit that he shared
a hotel room with her.
defendant could have found some corroboration from her son whom she
alleges was present on one occasion when she found plaintiff
compromising circumstances with Rosemary in the butchery. It was
regarded as being somewhat immoral to call a son as a witness
involving the adultery of his own father. I do not see any immorality
in that because the son saw when his father was found
plaintiff and the defendant have both failed to prove adultery
against each other. The only question which remains is whether
defendant has proved desertion by the plaintiff. The plaintiff has
admitted that he expelled the defendant from their matrimonial
on the ground that she had committed adultery with one Sello. There
is no doubt the defendant did not leave the common home
but was forced by the plaintiff to leave. His witnesses, who are all
of his family, attempted to say that she did not object when she was
told that she must go to her maiden home and to live
there until the
plaintiffs anger had subsided. One of such witnesses said under
cross-examination: "I do not deny that the
decision that she
must go to her maiden home was made by the plaintiff.
I have no
doubt in my mind that the plaintiff expelled the defendant from the
common home for ulterior motives. At the time he accused
defendant of adultery with Sello he (plaintiff) was also being
accused of adultery with one Rosemary. It seems to me that the
expulsion of the defendant from the common home was likely to give
the plaintiff a good opportunity to conduct his illicit love
with Rosemary. The expulsion of the defendant was nothing but a
windscreen. The real reason was to conceal his own adultery
Rosemary. Why should a man who has caught his wife kissing another
man not deal with the matter while they are still living
same roof? There was no reason why the plaintiff could institute
divorce proceedings while still sharing the common home
parties have been married for twenty five years. They have children.
During that period they worked together and built a business
own from which they get a reasonable income. One can understand why
there is so much
of the parties caused by the breakdown of their marriage; the
defendant has said that there are no prospects of reconciliation.
tend to agree with her that after six years of separation it will not
be easy for them to lead a normal marriage relationship.
accusations of adultery will never be forgotten.
Justice Selby of the Supreme Court of New South Wales, commenting on
Part III of the Commonwealth Matrimonial Cause Act 1959
replaced by the Family Law Act 1975), which made elaborate provisions
to facilitate reconciliation of the parties, remarked:
suggests that the provisions of Part HI remain in the realm of pious
hope. By the time a matrimonial cause reaches
a hearing the parties
are too far apart, one of them, at least, is too anxious for a final
determination of the suit and too much
bitterness has been engendered
to allow any reasonable prospect of reconciliation. It is only on the
rarest occasions that attempts
are made, pursuant to Part III, to
effect a reconciliation after the hearing has begun, and it is
doubtful if any such attempt
has been successful." (See Hahlo:
The South African Law of Husband and Wife, 5th edition p.344)
Lesotho the irretrievable marriage breakdown is not a ground of
parties still have to prove things like adultery, malicious desertion
etc. In the present case I am of the view that the defendant
proved the alternative in her counterclaim. The expulsion of the
defendant from the common home after condonation amounted
counterclaim the defendant had asked for forfeiture of the benefits
arising out of the marriage. However in her evidence
she asked for
the division of the joint estate because she alleges that they worked
together to build their business. This appears
to be a reasonable
demand or request.
result the Court makes the following order:
of conjugal rights on or before the 17th December, 1999, failing
which a decree of divorce on the basis of the plaintiffs
of the minor child is awarded to the defendant, Elizabeth 'Mabolase
of the said child at the rate of M500-00 per month;
of the joint estate.
Plaintiff - Mr. Sooknanan
Defendant - Mr. Lambat
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