CIV/T/171/85 IN THE HIGH COURT OF LESOTHO
In the Matter of
'MALITSEPISO E.L. MATLATSA Plaintiff
v
ZAKARIA H. MATLATSA Defendant JUDGMENT
Delivered by the Hon. Acting Mr. Justice D.S. Levy on the 17th day of June, 1985.
The Plaintiff sues for an order for restitution of conjugal rights on the grounds of the defendant's malicious desertion of her, and the facts on which she relies for proof of malicious desertion are that, with the Defendant's consent, his parents deprived her of the parties' common property at a time when the Defendant was serving a term of imprisonment on a conviction for High Treason.
The Defendant, so the Plaintiff says, in January of last year told the Plaintiff that he no longer wished to see her and that she should stop paying him visits at the prison. She said that he further advised her to remove their child from his parents' home and take him with her.
It appears that the child had been with the Defendant's parents since 1981, that is, long before the Defendant's conviction and imprisonment, and that the child has subsequently been returned to the Plaintiff* I do not consider the fact that the child was removed by the Defendant's parents as being an act of desertion, nor equally,do I consider the return of the child to the Plaintiff as being an indication of a loss of interest in the furtherance of the marriage. Both acts are explainable as having been done in the interests of the child.
2/ The further .....
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The further fact that the Defendant told the Plaintiff not to visit him any longer in prison may also have been motivated by a desire to save himself and her the embarrassment of seeing him in gaol. In view of the nature of the Defendant's conviction I can well understand that he considered his confinement in prison as a humiliation which he did not wish his wife to share. The plaintiff for her part has suffered the misfortune of becoming pregnant by the act of another man but the Defendant has assured the Plaintiff and the Court that he will regard this child as one of his family and that he nevertheless wishes to return to his wife on his release from prison which he expects will occur in May, 1986. For her part as well the Plaintiff has said that she refused to read the letters written to her by the Defendant from prison and it seems to me in these circumstances that there has been no desertion by the Defendant of the Plaintiff and that there is a substantial prospect on his discharge from prison that they will re-establish their marriage.
I am driven, therefore,to the conclusion that the Plaintiff has failed to prove on a balance of probabilities that the defendant has maliciously deserted her and I must accordingly grant absolution from the instance. There will be no order as to costs.
D.S. LEVY ACTING JUDGE 17th June, 1985.
For Plaintiff Mr. S. Moorosi For Defendant In Person.