IN THE HIGH COURT
OF LESOTHO In the matter between:
SEBONOANG AMELIA MONYAKE Plaintiff
and DAVID RABOROKO MONYAKE Defendant
Delivered by the Hon. Mr. Justice Sir Peter Allen on the
23rd day of September, 1987
This is an action for a decree of judicialseparation
a mensa et thoro and custody of the two minorchildren.
Both parties reside in Maseru and, although Mr. Pheko
for the defendant had seen his client and informed him that he
Court on the hearing day, the defendant in fact did not
appear in the morning , or the afternoon of that day. The Court
no communication from him to explain his absence. Hence
the trial proceeded without him.
The parties are middle aged, the plaintiff aged 43 years
and the defendant about 49 years. They were married on 28 March 1970
Evangelical Church according to their marriage
certificate (exhibit 'A'). There were two children of the marriage, a
Rethabile Monyake who was born on 16 January 1971,and
/a girl ...
a girl 'Mabatho Monyake who was born on 17 January 1973.
Both of them are now teenagers and attending school.
The plaintiff testified about various incidents from
1980 to date relating to her husband's attitude and conduct with
regard to herself
and their marriage.
Mrs Monyake described how, by 1980, their marriage was
not going well mainly, due to the frequent extramarital affairs
defendant and his arrogant and unrepentant attitude when the
plaintiff complained about this behaviour. Mrs Monyake testified that
by October 1980 "there was no more peace in the family" and
some friends advised her to try and conceive another child
hope of bringing some happiness into the family.
One morning in that month when she was undressed and
washing herself in a basin in their bedroom she made the suggestion
to her husband.
For some reason he reacted violently and kicked her
in the chest and she fell over. She said that she was surprised and
has had no sexual relations with him since that date,.
In 1981 they had a young domestic servant called
'Maseabata Monyake who was, in fact, an aunt of the defendant
although much younger
than he. She left and in 1982 wrote to the
plaintiff that she had been made pregnant by the defendant. This was
admitted by the defendant
in his written plea. There was a meeting
of their parents in an attempt to settle the matter. Apparently it
was not successful.
The plaintiff testified that she and the defendant
travelled to the meeting by car. On the way the
defendant. -showed no remorse and spoke arrogantly saying that he did
not belong to
her family but, rather, she belonged to his family. He
admitted impregnating 'Maseabata but blamed the plaintiff for
girl to stay with them. He did not apologise or ask to
be forgiven and she had not forgiven him.
Around March 1983 the plaintiff said she was "brutally
assaulted" by the defendant who refused to let her take the
across the border on an outing to the zoo. He struck her
with a big stick and "disfigured" her thigh by leaving, not
scar, but what she called a "furrow". She had to seek
the protection of the police.
In August 1983 the plaintiff was summoned to hospital
where she found the defendant had been admitted with a stab wound.
related that the defendant had been having an
affair with the wife of one Letsie, who had caught them both in the
act and stabbed
each of them. The defendant's version to her was
that he had delivered some goods in his motor vehicle to the man's
wife and he
had asked for payment. Letsie had found them together
and had presumably assumed the worst.
In July 1984, while the plaintiff was on a trip to
Europe, the defendant gave some sort of party at their home. It
ended up with
him sleeping with one woman, while a friend of his and
another woman occupied another bed in the same room. The children
their mother about it and she later questioned him. The
explained that the party went oh very late and there was
nobody to take those people home so he let them stay for the night.
that he showed no signs of repentance. In the same year, on
another occasion, the defendant threatened her with a knife until
The plaintiff complained that the defendant had sexual
relations with each one of their successive housemaids. She said that
one of them called Ntsoaki, left at the end of the year
because the defendant had threatened to kill her when she resisted a
assault upon her. She ran away to their neighbours. In 1986
another housemaid, called 'Mamosolotsoane left because the
demanded that she should kiss him. When the plaintiff
questioned him about the incident he admitted it and added that if
left the girl there, that is what she should expect
from him. His attitude towards the plaintiff was uncaring and
referred to him as "an animal".
The plaintiff stated that the defendant drank a lot and
that he was no longer able to keep a job, changing from one to
his work was found to be unsatisfactory and he was
discharged. He had a regular job as a mechanic until 1982 but since
he had been in and out of work and frequently unemployed. He
was not maintaining her and the children and consequently the
family increasingly had to rely on the plaintiff's earnings as a
secretary with a firm of quantity surveyors.
In cross-examination Mr. Pheko pointed out to her that
judicial separation is a temporary arrangement on
/the way ...
the way to a divorce unless there is reconciliation
between the parties. He asked the plaintiff what her
in this respect. She replied that she had become
a Catholic and so she did not believe in divorce nor did she seek
one. At the same
time she could no longer live with her husband
because she found their life together to be intolerable and even
dangerous to her
as a result of the defendant's unlawful and
unacceptable conduct. This, in fact, is just the situation in which
a judicial separation
decree can be granted, provided that the Court
is satisfied that it was the defendant's conduct which was the
sole or main cause
of the state of danger or intolerability.
The plaintiff testified about the defendant's boasting
of and admission to adultery on a number of occasions, particularly
domestic servants; his use of physical violence and
threats of violence against her, his arrogance and open contempt for
for their marital state which was upsetting and humiliating
for her and the children. In addition, his excessive drinking and
to hold down a job for very long contributed to the
disruption of their home life and the break-up of their marriage. All
much more than is contemplated by the ordinary wear and tear
of married life and goes beyond what could reasonably be tolerated in
The defendant did not come to Court to put his side of
the affair so there was no explanation or justification of his
and no attempt to dispute or disprove the plaintiff's
/Mr. Pheko ...
Mr. Pheko did his best on behalf of the defendant by
cross-examining the plaintiff at some length about all of her
$he remained confident and unshaken throughout.
She impressed me as being a truthful and reliable witness not given
to undue exaggeration.
She was not asking or planning for a divorce
in the future and she had not lost sight of a chance of a
reconciliation provided the
defendant changed his ways completely.
However, she had no real hope that he would be likely to do so.
Bearing in mind that the defendant
is now about 49 years old, I would
be inclined to agree with her that he is probably too set in his ways
and habits by now. Their
marriage unfortunately appears to have
broken down irretrievably.
As far as this action is concerned I am satisfied that
the evidence of the defendant's conduct and behaviour is sufficient
granting the decree prayed for.
The defendant apparently has two houses in addition to
the matrimonial home. One is still being built under a loan and he
rent from the other, which apparently he would be able to
occupy. According to his written plea, in spite of being out of work,
is still able to provide for his children. He should therefore
continue at least to take a share in doing so. The plaintiff is
and can contribute towards their maintenance also.
Accordingly, judgment is entered in favour of the
plaintiff in the following terms:-
1) There will be a decree of judicial separation a mensa
/2) The two ...
The two minor children of the marriage,Mokhatla and
'Mabatho, will remain inthe custody of the plaintiff;
The defendant will contribute to themaintenance of
these two children in theamount of M50 per child monthly;
The plaintiff and the children shallremain in the
matrimonial home and theirjoint estate is to be divided
equallytaking this factor into account;
The plaintiff is to receive her costs inthe suit.
23 September, 1987
Mr. Moiloa for the Plaintiff Mr. Pheko for the
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