THE HIGH COURT OF LESOTHO
In the Matter between :
ELEANOR MASAILE Plaintiff
BERNARD MASAILE Defendant
Delivered by the Hon. Mr. Justice B.K. Molai on the
19th day of January, 198 7.
On 11th January, 1985 Plaintiff herein filed with the
Registrar of this court summons commencing an action in which she
the defendant, for an order of restitution of
conjugal rights failing compliance therewith a decree of divorce on
the ground of defendant's
constructive desertion, forfeiture of the
benefits arising out of the marriage, costs of suit, further and/or
Defendant filed a notice of appearance to defend
It is common cause that defendant and plaintiff are
domiciled in Lesotho. They are respectively a civil servant and a
in the district of Thaba-Tseka. On 2nd July, 1968 they
got married to each other by Christian rites and the marriage still
No children were however,born of the marriage.
In her declaration to the summons Plaintiff stated,
inter alia, that with a settled intention to sever the bonds
of marriage existing between the parties defendant had denied her
since September 1981, assaulted her in January, March
and July, 1982. As a result Plaintiff left the matrimonial home and
to her maiden home. She submitted that in the premises
defendant had constructively deserted her. Consequently she prayed
for an order as aforesaid.
2/ Defendant's plea
Defendant's plea was, in effect, that Plaintiff was
having an illicit love affair with a certain Pokello Mahlakela. When
that she should stop her illicit love affair with the
said Pokello Mahlakela. Plaintiff was uncorporative. It was therefore
own infidelity and insubordination as aforesaid that
made cohabitation with her intolerable and resulted in the fights.
defendant prayed for the dismissal of Plaintiff's claim. To
Defendant's plea Plaintiff filed a replication in which she denied
and insubordination alleged by the Defendant.
Minutes of pre-trial conference purporting to be in
accordance with the provisions of Rule 36(1) of the High Court
Rules,1980 were filed. It would appear, however, that the partes
agreed to disagree and the pre-trial conference turned out to be a
in as much as it achieved nothing to curtail the
duration of this trial.
Be that as it may, from the reading of the pleadings
there seems to be no dispute that defendant afforded Plaintiff no
since September, 1981 and assaulted her as alleged in
the declaration to the summons. The only question for the
the court is, therefore, whether or not defendant
did so as a result of Plaintiff's infidelity and insubordination.
In this regard defendant told the court that Plaintiff
was having an affair with Pokello Mahlakela. Despite his disapproval
Plaintiff continued with her love affair with Pokello
Mahlakela. Every time Plaintiff left home for school, Pokello
on his way to the fields. One day in 1981 defendant
himself was going to get fodder from the fields when he saw Plaintiff
Mahlakela together. He had seen them together on several
In her evidence Plaintiff conceded that like any other
parent of the pupils at her school, Pokello had on occasions talked
She denied, however, that she had any illicit love affair
It is worth noting that apart from seeing them together
defendant does not mention that he saw Plaintiff and Pokello doing
act from which it can reasonably be
inferred that they indulged in an illicit love affair.
The mere fact that when Plaintiff left home for her school Pokello
taking the same direction on his way to the fields or they
were seen talking to each other cannot, in my view, be a conclusive
that the two were indulging in an illicit love affair.
It is common cause that on the night of 21st January,
1982 defendant and Plaintiff were in their house. According to
then heard three (3) knocks at the door of the house. He
went out armed with a stick and a knife. He looked around but saw
When he returned into the house he told Plaintiff that he
thought it was a dog knocking at the door but there was nothing.
then said it was her husband Pokello and others. An
altercation ensured between him and the Plaintiff when he merely
struck her a
blow on the head with a knife. He denied to have
actually scabbed her.
Plaintiff's version was slightly different. According to
her when he returned into the house defendant said her concubine was
her and she should go outside the house. She did not know of
any such person and so she refused to go out. Defendant then stabbed
her on the head with a knife and she sustained an injury. She ran out
and reported the incident to the bugle of the village, one
Mahlakela, who was, however, not called as a witness in this trial.
In the morning Plaintiff and defendant were referred to
the chief of the area, one Mothinya Sekonyela who testified as P.W. 3
told the court that he actually saw the injury on the Plaintiff's
head. He immediately ordered defendant to take Plaintiff to a medical
doctor for treatment and defendant complied.
On 9th February, 1982 he was to preside over a family
meeting at which defendant and Plaintiff together with her in-laws
No final decision was, however, taken at the meeting
because it was suggested that arrangement should be made for
family to be represented at such a meeting The
meeting was for that reason postponed to 27th February, 1982.
However, on that day
no representative from Plaintiff's maiden family
turned up and the meeting did not proceed. On 3rd March, 1982 the
matter was referred
to the Local Court of Semenanyana before which
the case is still pending.
4/ Assuming it
Assuming it were true that defendant heard 3 knocks and
thought it was a dog knocking at the door I find it incomprehensible
that he would have gone out armed with a stick and a knife. What is
more likely is that he suspected that Plaintiff was having secret
lovers who might be hovering outside the house. This explains
why,according to Plaintiff's evidence which I am inclined to believe,
defendant told her that her concubine was calling her and she should
go outside the house.
Although defendant denied to have stabbed plaintiff on
the head with a knife her evidence that he did is corroborated by the
that she had to go and report the incident to the village bugle
at night. Moreover, P.W.3 told the court that he actually saw the
injury on Plaintiff's head and considered it to be serious enough to
warrant an order that she should be immediately taken to a
doctor for treatment, and the matter referred to a court of law.
Returning now to the evidence, Plaintiff told the court
that on 9th March, 1983, she went to the chief's place and lodged a
that defendant was denying her the use of their farm
produce, was not maintaining her and she had nothing to live on. This
by P.W.3. At about 4 p.m. she returned from the Chief's
place and on arrival at the matrimonial home defendant again
with a sjambok. She sustained weals all over the body
and thighs.. This defendant admitted and said he did so because
arrived home late.
It is abundantly clear to me that defendant is
labouring under a mistaken belief that a wife is a child to whom
he can administer
corporal punishment. To my mind it must be brought
home to him that when he got married to her, Plaintiff was no longer
If there are any misunderstandings between them they must
sit down and discuss their differences like grown up people.
It is common cause that after defendant had sjamboked
her in the manner described above, Plaintiff left the matrimonial
and returned to her maiden home from where she reported to the
police that due to defendant.'s behaviour she was unable to return
the matrimonial home from where she
5/ would be
would be able to carry out her teaching duties at
Likomeng Primary School. On 2nd April, 1982 Plaintiff and defendant
to the office of the Police Community Relations at
Thaba-Tseka where in the presence of P.W.3 defendant was warned by
P.W.2 to stop
assaulting her. This was confirmed by P.W.2 who told
the court that he also advised that the matter should be referred to
Plaintiff subsequently returned to her school but she
then had to stay at the chief's place as she was afraid to live with
at the matrimonial home. When the school term closed in
June, 1982. Plaintiff returned to her maiden home.
However, on 23rd June, 1982, her mother was sued before
Thaba-Tseka local court by Defendant's elder brother for keeping
at her home. Judgment was entered against her mother who
was ordered to return Plaintiff to her matrimonial home.
mother complied with the court order and returned her to
the matrimonial home.
During the night of 6th July, 1982. defendant then
throatled Plaintiff saying he was not the one who had caused her to
return to the
matrimonial home. Plaintiff again fled and returned to
her maiden home from where she went to a medical doctor for
said that was reflected in her health book which was
in her possession as she testified before the court. She had never
to the matrimonial home.
Although in his evidence defendant denied to have
assaulted Plaintiff on 6th July, 1982 and said she had left the
for no apparent reason I am not convinced that after
she had returned to the matrimonial home in obedience to a court
would have fled for no good reason. I am prepared to
accept as the truth her story that she did so because defendant had
her during the night. That granted, defendant's denial
thereof must be rejected as false.
Considering the evidence as a whole, I am unable to
find, on a balance of probabilities, that Plaintiff had committed
of infidelity or insubordination justifying
defendant to deny her conjugal rights and assault her as
alleged in the declaration to the summons. The question I have
viz. whether or not defendant assaulted Plaintiff and
denied her conjugal rights because of her Infidelity and
therefore, be answered in the negative.
From the forgoing ft is obvious that the view that I
take is that Plaintiff succeeds in her claim. Defendant is
to restore conjugal rights to Plaintiff on or
before 22nd February, 1987 failing compliance therewith to show cause
on 2nd March,
1987 why Plaintiff shall not be awarded a final decree
of divorce together with the ancillary prayers.
JUDGE 19th January, 1987.
For Plaintiff : Mr. Monaphathi For Defendant :
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