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 .....

2

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.