IN THIS HIGH COURT OF LESOTHO In
the matter of :
ROSALIA 'MALERATO MOERANE Plaintiff
VNICODEMUS KOPANO MOERANE Defendant
Delivered by the Hon. Mr. Justice M.L.Lehohla on the
9th day of August. 1989.
The above parties are wife and husband.
They were married on 2nd August 1969 by Christian rites
in Community of property. The marriage was solemnised by the
Methodist Episcopal Church at Thaba-Khupa, Lesotho. A copy
of the marriage Certificate was handed in and marked Ex."A"
for the record.
Since 2nd September 1982 the parties have been living
apart pursuant to a Court Order and pursuant to a Deed of Settlement
in turn made Order of Court. See Exhibits "B" and
It was part of the deed of settlement that plaintiff
should deliver movable items of property consisting of furniture,
and defendant's clothing to the defendant.
However the defendant was content to have only the
clothes belonging to him delivered to him, and did not insist on the
other items because he felt they would be needed by
members of his family i.e six childraen in all born between 1967 and
first of these siblings is the only girl 'Mampiti
Moerane. The rest are boys.
It was a further part of the Deed of Settlement that the
house at Mohalalitoe should remain with the plaintiff together with
items not mentioned in paragraph 2 of the said Deed. The
five minor children were also to remain in the custody of the
subject to the defendant's right of access to them at
reasonable times. At the time of the drawing of the deed it appears
child Bokang was not yet born for the Plaintiff's
Declaration shows he was born the following month on 8th October
On papers and in evidence led before me the plaintiff
sues the defendant for divorce on grounds of malicious desertion.
The basis of the plaintiff's claim for the suit is that
whereas the Judicial Separation was intended to give the plaintiff a
from matrimonial tribulations, and afford the parties a
cooling off period during which to weigh and consider the merits and
demerits of reconciliation the defendant went twice to the
plaintiff at the matrimonial home and viciously attacked her with
result that on one occasion she lost some of her teeth while some of
those remaining were rendered lose to date, due to kicks
from defendant's shod feet.
It is common cause that to date the defendant has been
paying a total of M20 per month for the maintenance of those of the
who are riot self-supporting. The eldest 'Mampiti is now
married. To that extent the parties' family is relieved of the burden
feeding and maintaining her.
The plaintiff asked the court to order the defendant to
pay maintenance at the rate of M100 per month per child i.e. a total
per month. She does not know how much the defendant earns by
monthly salary. She last knew that he was earning Ml50
per month before the order of Judicial Separation was granted. The
says he was then earning M85 and is now earning M170 per
The defendant testified that he would be prepared to
increase the rate of maintenance to an extent that his means allow.
It is so
far not definite what his means allow. The plaintiff can
scarcely be criticised for rejecting this offer because as she said
"the defendant's means may perhaps allow no more
than an increase of M5 which would not go far."
Although the plaintiff swore that the responsibility of
paying the school fees for those of the children who are still at
exclusively on her, it appears from the receipts produced
and issued in the name of the defendant that he has been paying, in
a total of M279 being school fees for Lepekola a son attending
at St Agnes High School.
The plaintiff though unsupported by any receipts on her
part swore that she has been paying the child's fees at this school
she usually gave the son the money to pay the fees each time
he came looking for them, and never bothered to ask him to produce
receipts as she trusts him.
Asked how she reconciles this state of affairs with her
denial that the defendant has also shouldered the responsibility of
the school fees as illustrated by receipts issued in his own
name she conjectured that this may be a trick played by her husband
to take the fees handed over to the son and pay it to the school as
if. coming originally from his own pocket whereas the truth
the money came from her. She bases this on the fact that the son has
closer contact with the defendant as both live in T.Y.
The son has not been called to give evidence.
Hence this aspect of the matter falls to be decided in
favour of the defendant. Moreso because the defendant. swore that he
effects payments and receives the receipts himself, with
the exception of one payment regarding which he asked some one else
the money to the school to effect part payment of the schoolfees for Lepekola. The plaintiff, much as she trusts never
obtained a report from him to substantiate her suspicion.
The plaintiff is an employee of the Department of Food
Management Unit (F M U) in Maseru. She earns a salary of M200 per
Having denied that the defendant ever does anything beyond
paying the judicial fee of M20 per month maintenance, towards the
of the children conceded that the defendant did at one time
buy shoes for one of the children during the period of the parties'
Asked why in the face of hypothetical question put to
her that the past winter was particularly severe hence it seems
that a father could be so heartless as not to buy a
shawl for any of his children to keep out the cold she said she was
elaborating at one stage when she intended pointing at
this deed as the sole and exceptional act ever done by the defendant
the period in question. Much as the general trend of the
plaintiff's explanation for her failure may appear plausible it
fails to carry conviction because the hypothetical
question put was direct and nothing could have prompted anybody to
stop her answering
that indeed the defendant met the child's needs in
only that exceptional occasion.
The plaintiff said she does not trust that the defendant
would keep his word even if he were to be taken at his word that if
to live with his wife he would not assault her at all. She
says she knows the defendant's untrustworthiness to her cost. Indeed
medical forms "D" "E" and "F" are on
substantiate her claim of the assaults suffered at the
defendant's unprovoked attacks. Be it noted that an assault
of the attacks was treated by-two different doctors one
of whom was a dentist.
In his turn the defendant stated under cross-examination
that he was not happy to be living separately from his wife.
he conceded that it did not seem that he had done much to
attempt ways of getting reconciled with his wife during these seven
of leaving separate lives, save that he wrote a letter to one
of his parents to this end, but was adviced to also approach his
but the proposed meeting never took place.
The defendant doubts whether the plaintiff loves him any
longer. In fact he said he never approached the plaintiff during the
between 1982 to 1989 in an attempt to seek ways of bringing
their marriage back on track.
As for the defendant's evidence in chief with particular
regard to the alleged assaults on plaintiff. one couldn't help
he had much to hide. He tended to ramble on
irrelevancies even when repeatedly asked by his counsel to come to
the point. It seems
to me that he preferred hedging round the focal
point. In any event he at first denied ever assaulting the plaintiff
but was hard
put to it to say if he knew of any rumour to the effect
that his wife was attacked by someone else in respect of the assault
she has now laid against him in the Subordinate Court,
In his evidence in chief the defendant gave a version
that is very difficult to believe. Having expressed a particularly
of a fight that ever took place between him and
the plaintiff he said, after saying that he knew of no day that he
and the plaintiff
quarrelled, when he came to inquire about the son
Tsepo who had been taken to hospital on some complaint, the plaintiff
that the son was at the mortuary. Thereupon the defendant
made to go to
the mortuary but the wife locked the door and told him
there was something she wanted to tell him about. The wife told him
him and her one was going to die. She took a knife from a
drawer; so did he., No use of the knives was made as the quarrel was
to an exchange of words only.
The two thought better of holding the knives and
accordingly dropped them. An undicisive fisticuffs fight ensued. The
hit him first. This he said took place in 1987.
Besides this he hazily remembers a quarrel which led to
a real fight in 1983. As usual the defendant hedged a wall of
round the main issue. I will cut off the irrelevancies
and relate this witness's testimony concerning the cause and the
He said he had occasion to come to the matrimonial home
after he had been to his sister's feast at Upper Thamae.
He found his wife selling beer at the house. The wife
saw her customers' off during the night. The defendant went to bed
The plaintiff came back with her friends at about 12.00
midnight and caused a noise that aroused the child from his sleep.
drew this act. of irresponsibility to the
plaintiff's attention. She in turn told him that she didn't care and
let him know
to his face that even the blankets he was sleeping in
were not his but hers.
Needless to say none of the things that the defendant
charges the plaintiff with was put to her.
I am justified therefore in regarding them as an
afterthought and production of a mind that busily manufactures
evidence as the
In argument Mr, Moorosi for the plaintiff
conceded that it is not part of our law that a marriage that has
irretrievably broken down serves per se as a ground for
He however emphasised that the question of assaults
serves as an indication that defendant does not seriously mean to be
with the plaintiff. His is merely to seek means of
frustrating her search for relief because as things stand he doesn't
suffer any inconvenience occasioned by the Judicial
Separation. In fact the plaintiff's fear is that the defendant
as above the law in that during one of the
assaults he demanded conjugal rites from her forcefully and told her
that the separation
order did not apply to him.
Mr. Moorosi argued that these assaults coupled
with the defendant's manifest intent constitute desertion.
In answer Mr. Molete for the defendant argued
that the plaintiff is not entitled to the relief sought. He
buttressed this arguments by submitting that
the prayers for custody
and forfeiture of the marital benefits were granted at the end of the
Judicial Separation proceedings trial.
It was argued for defendant that the 1987 assault cannot
be considered because apart from being denied it is alleged to have
after summons was issued.
This would tend therefore to leave us with a single
occasion of the assault that took place in 1983 or 1984,
The plaintiff's story was branded improbable in that
each time the alleged assaults took place the defendant is said to
and said he wanted to disfigure or destroy the plaintiff's
features, then assaulted her and left.
I was invited to look favourably at the defendant's
story that the fight that ever occurred came about because
there had been drinking followed by some squabble. It
was thus asked of me to regard this as a more probable explanation.
the high advocacy contained in it is undeniable, but the
importance of this valuable submission has unfortunately not been
by the quality of the evidence led.
I agree that desertion must be based on proof of intent
to bring marriage to an end.
It was argued that there couldn't have been an occasion
to justify the argument that intent to bring marriage to an end was
because the parties were living separately following a Court
Order, It was further argued that an assault in order to warrant the
view that there was intent to terminate the marriage must have
carried with it some degree of persistence, I am not aware of any
authority for this view, with respect.
It was further argued that arguments advanced for the
plaintiff are good for founding a claim for Judicial Separation, but
has that already,
I am inclined to the view that having listened to the
evidence and considered both parties who gave it, the plaintiff was
by far a
much better witness than the defendant. She was forthright
and on the whole giving evidence that had a ring of truth to it. The
defendant was evasive and inventive.
In my view an intent to bring a marriage to an end need
not be expressed. It is enough that it is implied from a party's
The order sought was that defendant should restore
conjugal rights on or before a convenient date failing which to show
the divorce should not be granted. I am aware that the
parties are presently living apart due to the fact that the Judicial
order is still in force. But because the defendant also
said he is eager to live together with the plaintiff again as man and
it would seem at least technically that
the Judicial Separation order elapsed during the
proceedings in the trial.
Consequently the defendant is ordered to restore
conjugal rights on or before 21st August 1989 failing which to show
cause on 4th
September 1989 why the decree nisi shall not be made
JUDGE. 9th August, 1989.
For Plaintiff : Mr. Moorosi For Defendant : Mr.
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