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CIV/T/351/99

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

WENG,
HSIN- TUI PLAINTIFF

and

WENG,
YEH, LI-YA DEFENDANT

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 6th day of
September 1999

This
action on summons, for an Order of divorce on the ground of the
Defendant's adultery, amongst others, was not opposed. The
Plaintiff
who was represented by Mr. Klaas proceeded for a judgment by default.
One of the strange things was an agreement called
an "agreement
of divorce" dated the 15th December 1998, which was about eight
months before the summons were filed. The
Plaintiff also claimed for
forfeiture of the benefits of the marriage, custody of the parties
minor children and costs.

Plaintiff
was a Chinese male adult who was resident at Likoting in the district

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of
Butha-Buthe. Defendant was a female adult staying at Taiwan Flats,
Maseru West. The parties had been ordinary residents in Lesotho
since
1987. This period was more than two years. I did not accept Mr.
Klaas' contention that this period thus gave this Court the
necessary
jurisdiction, by virtue of Matrimonial Causes Act No. 21 of 1978.
This Court had jurisdiction by virtue of the fact that
the parties
resided in Lesotho at the material time and to date.

The
parties were married in accordance with Chines rites at Pu-zi Town in
the Republic of Taiwan on the 20th November 1976 and the
marriage
still subsisted. The marriage was registered in accordance with the
parties law, of China. There were three (3) minor
children born of
the marriage and the children were in custody of the Plaintiff.

The
Plaintiff said further in his summons that the Defendant had with
intention to terminate marital relationship between the parties
lived
in adultery (as man and wife) with a man called Chen at Taiwan Flats.
The Plaintiff also testified that he had not condoned
the adultery.

I did not
view the said agreement of divorce as collusion of any kind but I
took it as corroborating the fact of serious discord
in the parties'
family and probably existence of the adultery. The agreement also
spoke about "guardianship" of the three
sons of the
marriage being left with the Plaintiff. And furthermore it recorded
that "all the collective properties from this
marriage"
were left with the Plaintiff. And finally the "wife would not
require any alimony after the divorce".
That was what was agreed
upon.

Inasmuch
as the matter was not opposed, after good service on the Defendant, I
reached a conclusion that according to our law a
claim for divorce

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would
have been successfully proved. But there was one hitch which I said
Plaintiff Counsel should advice me on. It was whether
the applicable
law was the law of Lesotho or the law of the Plaintiff's domicile
which was that of Taiwan. I agreed that it was
the law of Taiwan
which was applicable if it was proved. That law was the law of the
parties domicile and equally importantly the
lex loci celebrations.
Counsel made submissions later on the law of Taiwan.

The law
of Taiwan has been produced to the Court which was translated (the
relevant parts) as follows:

"Clause
1049 : Both man and wife (on) agree(ing) to have divorce, can do so.

Clause
1050 : Both man and wife (on) agree(ing) to have divorce (which)
should have in it written down on paper with more than two

witness(es) and to be registered in the Department of Household
Registry.

Clause
1052 : In the underneath condition; any side is entitle(d) to as for
divorce:

1. Bigamy

   
   

2. Voliater
   (violation) of the crime of adultery.

   
   

3. Either
   man or wife who can not bear the maltreatment of the opposite party.

   
   

4. The
   direct relative of either party is the victim of the maltreatment of

   
   

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the concerned party

5. Either
   man or wife is maliciously abandoned". (My underlining)

   
   

I however
did not accept the above as adequate proof of that foreign law. It is
because: "The Courts do not ordinarily take
judicial notice of
foreign law, which must be proved by evidence of an expert witness."
See SEROBANYANE v SEROBANYANE AND
ANOTHER CIV/APN/290/91, Kheola J
(as he then was) 25 September 1991. As I said before the claim would
have succeeded according
to the laws of Lesotho. Moreover:

"It is trite law that in the absence of adequate evidence or the
possibility of judicial notice, foreign law is presumed to
be the
same as local law as a ground for divorce. Rogaly v General Imports
(Pty) Ltd 1948(1) SA 1216)." See SEROBANYANE case
(supra) at
page 5.

I
accordingly granted a decree of divorce. In addition I awarded
custody of the minor children to the Plaintiff as prayed and
confirmed
as an Order of Court all other aspects over which the
parties agreed which included the issue of property.

T.
MONAPATHI

JUDGE

6th
September, 1999

For the
Plaintiff : Mr. Haas

For the
Defendant : No Appearance