CIV/T/573/83 CIV/APN/270/83

IN THE HIGH COURT OF LESOTHO

In the Matter of

'MATHASI AMINATA KURUBALLY Plaintiff (nee Lethunya)

v
ALASANA KURUBALLY Defendant

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai
on
the 12th day of June, 1985

This is an application by Plaintiff in an action for
restitution of conjugal rights that the court should condone lack of
service
of the restitution order in the normal way, confirm the rule
nisi and grant the Plaintiff further/alternative relief..

Defendant originally came from Gambia but was ordinarily
resident in Lesotho where he dealt in diamonds. In June 1977 he got
married
to the Plaintiff, a Mosotho citizen.

On 7th March, 1984, defendant filed with the Registrar
of this Court an affidavit in which he deposed, inter alia,
that he was withdrawing his plea in an action in which plaintiff had
sued him for divorce on the ground of malicious desertion and
the
case should, therefore, proceed uncontested. The case duly proceeded
uncontested on 13th March, 1984 when a rule nisi was
issued against the defendant calling upon him to restore conjugal
rights on or before 28th March, 1984, failing compliance therewith
to
show cause on 2nd April, 1984 why plaintiff should not be awarded a
decree of divorce, custody of the minor child­ren of the
marriage, etc.

The Respondent did not restore conjugal rights on or
before 28th Match 1984 and on 2nd April, 1984 only the plaintiff
appeared before
the court to report that

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defendant had since returned to Gambia and it had,
therefore, not been possible to serve him personally with the
restitu­tion
order A proposal to try and serve the order by
regis­tered mail was turned down and the court ordered that
ser­vice be effected
through the Diplomatic service. For that
reason the matter was postponed to a later date.

After a long chain of postponements, it was still not
possible to effect service of the order and Plaintiff has now
approached this
court for an order as aforementioned.

In her founding affidavit, Plaintiff avers that
defendant left Lesotho for Gambia on 7th March, 1984 aware that he
was about to be
served with the restitution order He promised to
return to Lesotho in about two weeks' time but never did so.
Plaintiff does not
know any of the relatives of the defendant in
Gambia nor does she know their addresses.

Pursuant to the order made by this court on 2nd April,
1984 that the restitution order be served through the Dip­lomatic
service,
the Assistant Registrar, by a letter through the Lesotho
Ministry of Foreign Affairs, dispatched the said order on 13th April,
1984
to the Gambian Ministry of Foreign Affairs and a reminder
thereto was sent on 12th June, 1984 without any response The last
time
plaintiff heard from the defendant was in August 1984 when he
telephoned from the United States of America to say he was not
prepared
to restore conjugal rights

Plaintiff avers that she verily believes that it is
impossible to serve the order on the defendant as his business
requires him to
move from country to country. Wherefore she prays for
relief as aforesaid

That personal service of the restitution order upon the
defendant is mandatory was not in dispute As Beadle C.J. put it in
Fuller v. Fuller 1971(1) S A.
26E

". .. unless a special order is given as to the
form of service, a rule nisi in a divorce matter must be served as a
summons,
that is, it must be served personally by the sheriff or his
deputy."

3/ In his

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In his able argument,Mr. Pheko who appeared for
the Plaintiff contended that by his conduct, the defendant had
rendered personal service of the order impossible
and the court had,
therefore, a discretion to condone none compliance with the
requirement of personal service

I agree The plaintiff should not be deprived of a
remedy simply because the defendant has rendered it impossible to
serve him personally
with the restitution order To hold the contrary
would imply that the defendant could hold this court at ransom in the
performance
of its work. That would be totally unacceptable.

In the special circumstances of this case, I am
prepared
to condone lack of personal service of the res­
titution order
and award plaintiff a final decree of divorce
together with its
auxiliary prayers

B K MOLAI JUDGE

12th June, 1985.

For Plaintiff Mr. Pheko
For Defendant