IN THE COURT OF APPEAL OF LESOTHO
C of A (CIV) N0.32 OF 2011
In the matter between:
KATISO NKEMA SELLO APPELLANT
ROSA KEKELETSO SELLO RESPONDENT
Coram: Howie JA
Heard: 7 October 2011
Delivered: 21 October 2011
Husband and wife – divorce – constructive desertion – absolution after plaintiff’s case – no evidence on which it could reasonably be found that the respondent misconducted herself with the settled intention to terminate the marriage.
 The appellant appeals against the order of Mahase J. granting absolution from the instance in his divorce action.
 The appellant and the respondent concluded a civil marriage on 30 October 1993. He left the common home in the second half of 2002, and in October of that year sued for an order for the restitution of conjugal rights and failing compliance, a decree of divorce.
 He alleged in his declaration that the respondent, with the settled intention to terminate the marriage, committed the following acts from 1998 onwards which forced him to leave their home:
(a) she accused him of infidelity;
(b) she habitually swore at him, often doing so in the presence of employees;
(c) she “always invite(d) him to assault her”.
Significantly, he did not allege that her accusations of infidelity were false.
 The respondent filed her plea in November 2002. She denied the appellant’s allegations and alleged that he had been committing adultery with one Palesa Thoola with whom he was then living “in concubinage”. She averred that when rebuked about his love affairs he usually threatened to assault her and that, having moved out of the common bedroom, he left the matrimonial home without just cause. The respondent did not counterclaim and confined the main relief she sought to an order dismissing the action with costs.
 In 2005 the appellant amended his declaration to include (incongruously) among the misconduct allegations levelled at the respondent, the following:
“(d) Plaintiff did commit adultery with one Palesa Thoola and pray for condonation thereof”.
 The matter then proceeded to trial. The appellant gave evidence and then closed his case. Absolution was then applied for and granted. Hence the appeal.
 In her judgment the learned Judge found that it was the appellant who had brought an end to the marriage by deserting the respondent; that he has done so predominantly due to his adulterous relationship with Palesa Thoola; that he had conceded under cross-examination having had an association with two other women; and that his belated disclosure of his involvement with these three women reflected adversely on his credibility.
 The Judge referred to the two other relationships as adulterous but adultery in their respective instances was neither proved nor admitted.
 The Judge also held it against the appellant that he was claiming restitution of conjugal rights but said in evidence that he and the respondent could never be reconciled. However, if the appellant had established constructive desertion to the extent sufficient to defeat an absolution application (whether after his case or at the end of the whole case), it would not have hampered his cause that the relationship had, in his view, irretrievably broken down. He would have sought, and been granted, a restitution order; and reconciliation would have been an entirely separate and new issue on the return day if the respondent had offered to resume cohabitation. His views as to the prospects of reconciliation were therefore irrelevant.
 It is also necessary to point out that issues of credibility are generally not to be considered until both parties’ cases have been closed.
 Turning to the essential question, it was whether there was evidence on which it might reasonably be found that such conduct on the respondent’s part as the appellant had succeeded in proving, was accompanied by the settled intention to bring the marriage to an end.
 The high water mark of the appellant’s case in that respect can be demarcated by reference to the following passages of his evidence – in – chief:
“PW1: It was around 2002 My Lady when I left the matrimonial home. I left the matrimonial home My Lady because we had conflicts with my wife and I realized that there could be no solution to them and I even decided to leave because I realized that if we still live together there would be things which would happen which one would regret. I also realized the condition we lived in is also affecting our children emotionally.
PC: What was actually happening? If you may elaborate what was actually happening to make the marriage so sour?
PW1: Our life was full of accusations, which never end. We were even fighting in the presence of our children when they were home for the holidays and it was as if their presence was the one which was persuading the fight. I work at Lesotho Funeral Services as the manager; my wife could even come and insult me in front of the employees and in the presence of my friends.
PC:You said your lives were full of accusation who was actually accusing who and what were accusations based on?
PW1:When I left home to work when coming back I would get accusation that I was not at work but I was at illicit relationship, if the female client made the phone call for the assistance while I was home she should hurl insult at them and call them my illicit partners.
PC:Were these accusations with any bases, were they justified?
PW1:I will say they had no foundations”.
“PC:You mentioned that you are constantly fighting and you have mentioned verbal outburst, did it end there, was it just verbal attacks?
PW1:Unfortunately, there were times when I ended up assaulting her.
PC:Get to the point of this time around 2002 where you said you left the matrimonial home. Was there something that you could say was the last straw that made you to leave the matrimonial home or was just this constant fight between the two of you?
PW1:In this year 2001 to 2002, we were no longer sleeping together. Our relationship was terrible my Lady as we no longer talking to each other and I was no longer eating at home. We were even attacked by thieves, they pointed me with guns, and they manage to take those properties that they stole including the money, which was in the house and after leaving us fastened and the moment we manage to unfasten ourselves, and while still checking as to where this thieves got the entrance my Lady. It came to our surprise that one window was broken, surprisingly its windowpanes did not fall in the house but fell outside and this makes me as to wonder how it happened, as we were the only two people in the house with my wife. As I deal with the corpses and sometimes one hears that the causes of them to be dead is that they were killed at their houses so that makes me afraid and realize that one day one will be killed at home.
PC:So it was around that time that you left the matrimonial home?
PW1:It was at that time my Lady.”
“PW1: After leaving the matrimonial home my Lady, I ended up having a relationship with another person whom we have a child and I still maintain that child like paying for her school fees.
PC:And who is this person you are having relationship with?
PW1:Is Palesa Thoola.”
 It is also necessary to refer to the following paragraphs in his evidence under cross-examination:
“DC: When did you say you met this Palesa Thoola?
PW1:I believe it was around 2001.
DC:This is when you developed a love affair with her?
PW1:It was the time we met.
DC:When did you become lovers with her?
PW1:It can be at the end of that year.
DC:So you became the lover with Palesa you believe the end of 2001?
PW1:Though I would not recall well I think so.”
“DC:You have told the court that you left the matrimonial home. By the way, what date or time did you say you left the matrimonial home?
DC:Yes when in 2002?
PW1:I think it is any time from July to September.
DC:The defendant still remember this she said you left in September 2002, do you deny that?
DC:You are saying you are disagreeing with defendant that you left the
bedroom a month or two before leaving the matrimonial home, when did you recall you leave the bedroom?
PW1:I believe in 2001.”
 These passages reveal that the relationship with Ms Thoola actually began well before the appellant left the matrimonial home and that its commencement approximated to the time he left the marital bedroom.
 Counsel for the appellant fairly conceded that his client’s departure from the common bedroom was linked in point of time to the start of the relationship with Ms Thoola, and that no conduct of the respondent was alleged to have been responsible for the appellant’s leaving the home. Nevertheless counsel laid great stress on the appellant’s evidence that the respondent made unfounded accusations that he was improperly associating with other women and that she used abusive language towards him in the presence of others, including his employees. It was urged that there was a persistence in such conduct which justified the inference, as a reasonable one, that the respondent thereby intended to end the marriage.
 In my view the appellant’s evidence failed to show, even at the level of proof that applies to the consideration of issues at the close of a plaintiff’s case, that the alleged abusive language and false accusations related to any time earlier than the existence of the adulterous relationship with Ms. Thoola. It also failed to show how frequently these incidents occurred.
 In any event, for a wife to react with manifest distress and displeasure in response to her husband’s adulterous relationship with another woman is wholly understandable.
Basically she has two options – to put an end to the marriage by suing for divorce on the ground of the adultery or, on the contrary, to do what she can to terminate the extra-marital relationship and maintain the marriage. There is no evidence, or even a suggestion, that the respondent wished to achieve the former result. Her conduct in question, however uncomfortable for the appellant, was consistent with the latter course.
 The position just discussed imports the presumption that the respondent knew of the adultery at the time of her conduct which the appellant alleged. If she did not, and merely suspected it, she would not have had the sure option of a divorce claim based on the appellant’s adultery. Nonetheless there is no evidence that she warned him that if he continued she would leave him. There is also no evidence that he warned her that if she persisted in her alleged unacceptable conduct he would leave her. In other words the evidence failed to show, at the relevant level, that her conduct was accompanied by her intention to terminate the marriage or her realization that it would, or even could, be terminated by him if she continued to do that of which he now complained.
 Essentially, what his evidence showed was this. He started and pursued an adulterous relationship. She acted in a manner which indicated her objection. Because of her response he on occasions, and to add to everything else, assaulted her.
 In my view it is not a reasonable inference on the appellant’s evidence – and accepting its truthfulness – that the respondent harboured the settled intention to terminate the marriage. Put another way, there was insufficient evidence on which it could reasonably be found that she had that intention.
 It follows that the order for absolution must stand and that the appeal must be dismissed with costs. It is so ordered.
Judge of Appeal
I agree ____________
Judge of Appeal
I agree ____________ N. Majara
Judge of Appeal
Counsel for the Appellant: T.Mosotho
Counsel for the Respondent: E.T. Potsane
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