IN THE HIGH COURT OF LESOTHO
In the matter of :
REV. PHINEAS L. PITSO Plaintiff
VLEFASO FOULO Defendant.
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
2nd day of March 1990.
In this action the plaintiff sues the defendant for :
(a) Payment of Ml00,000 being damages sufferedby the
plaintiff as a result of wrongful
and unlawful conduct of the defendant habour-ring the
Interest thereon at the rate of 22% aTempora Morae.
of suit, and
Further and/or alternative relief.
In his declaration the plaintiff has stated that on 7th
June 1984, his wife Mrs 'Mamoeti Pitso having been induced by the
left the common home where she and her husband lived and
went to stay with the defendant with whom she has to date been
He further complains that the defendant prevents the
plaintiff from seeing the plaintiff's wife.
The plaintiff also states that the defendant was at all
material times aware that the plaintiff's wife-had left the plaintiff
the plaintiff's consent and against his will, yet despite
being so aware as indeed the plaintiff even brought to the
notice both orally and by letter dated 4th June 1986 that
the plaintiff disapproves of the liaison existing between his wife
the defendant, the defendant took no heed of the plaintiff's
It is as a result of loss of affection, companionship
and consortium of his wife that the plaintiff claims that he has
damages in the sum of M100,000 occasioned by the defendant's
wrongful conduct. The plaintiff maintains that this amount of money
would suffice to compensate him for the losses he has outlined.
As shown in the defendant's request for further
particulars the main thrust of the defendant's case centres on the
the allegation by the plaintiff that the defendant
was aware that the plaintiff's wife had left the plaintiff.
The first witness for the plaintiff was P.W.I Paulina
'Matsotleho Foulo who testified that the defendant is her husband.
the defendant are not living together because on 22nd August
1986 a decree of Judicial Separation was granted following her plea
to the High Court against the present defendant.
It turned out that P.W.1's action against the present
defendant was based on the defendant's illicit liaison with the
P.W.I stated that the relations between her and her
husband started souring in 1977 when the plaintiff and his wife Mrs
to live in Semonkong in 1977.
She later gave the year as 1985.
P.W.I brought to the notice of the plaintiff and
his fellow priests the unsavoury goings-on between the
plaintiff's wife and the defendant. P.W.I testified that after the
had read the letter written to him by P.W.I and heard the
accompanying oral complaint about the plaintiff's wife's conduct
P.W.1's marriage the plaintiff cried. By reporting this
incident to the plaintiff P.W.I had hoped that the plaintiff would
his wife. However because no change occurred even after
the complaint to the plaintiff and his fellow priests P.W.I took the
up with her chief.
Meantime P.W.I met the plaintiff and undertook to take
him and one Rev. Morojele to the place where the plaintiff's wife was
with P.W.1's husband at Makhaleng. The trio went on board a
vehicle belonging to the landlord who had rented his business
to the defendant at Makhaleng.
On arrival at Makhaleng P.W.I showed Rev. Morojele and
the plaintiff a house in Mrs Linotsi Sehlabo's yard where P.W.1 once
the defendant and Mr Pitso's wife living virtually as husband
The defendant recognised these three people when they
arrived at Makhaleng. P.W.I did not greet him but the two priests
Mrs Sehlabo took the two priests to some place where they
would put up for the night P.W.I went to hide somewhere. It was when
had remained thus concealed that she saw the plaintiff's wife
going on board the defendant's vehicle and leaving along with the
in the direction P.W.I and her company had come along. The
plaintiff's wife is said to have come out of the same house where she
and the defendant were once observed to be living in by P.W.1.
At about 6 am. the following day the defendant was
seen by P.W.1 arriving alone in his vehicle. On his
arrival a meeting was held chaired by Sera Sehlabo the chief's
The plaintiff was given the floor. He briefly stated
that he was looking for his wife and was told by P.W.I where to find
further stated that he had seen the defendant spirit away
his wife the previous day in the defendant's vehicle.
Thereupon the defendant asked the plaintiff if he saw
him carrying his wife on his back. The defendant is said to have
angry when he uttered these words including a series of
swear words and abusive utterances such as the following:
"You Lehlohonolo you will suck your mother. It
seems you never did enough sucking of her."
Referring to P.W.1 the defendant is said to have said to
"are you running around with this prostitute of a
P.W.I informed the court that when she and her company
went past the defendant the latter took out a firearm from the
his vehicle's seat. Thereafter he drove past the
vehicle in which P.W.I and others were driving . Having overtaken
the defendant stopped his vehicle at a stream lying
ahead and lifted its bonnet making a slow of tinkering, at the
It seems to me that although the defendant did nothing
with the firearm his mind was bent on making sure that the plaintiff
company had seen it. The purpose for this can be none other
than to inspire them with fear.
P.W.I and the two priests laid a charge against the
defendant when they arrived at Roma Police Station.
In his evidence P.W.2 the plaintiff said that he first
knew the defendant in 1977 when the latter's vehicle was commissioned
Church to convey the plaintiff's baggage to Phororong where
the plaintiff was to assume his duties as a priest.
Ex-"C" is a Marriage Certificate showing that
the plaintiff and his wife were married by Christian rites in 1965.
told the court that his marriage was happy from 1965 to
1983. Since 7th June 1984 he and his wife have not been living
In 1983 the plaintiff met P.W.I who gave him a letter
saying that the defendant had a love affair with the plaintiff's
letter has since
been burnt by the plaintiff' s wife after reading it and
threatening to pick up a quarrel with the defendant's wife wherever
This letter had been copied to the chief and the
Semonkong Police. The chief duly called the plaintiff
and the plaintiff's wife as well as the defendant and
defendant's wife. The defendant did not come. The
meeting was scheduled for the next day but both the defendant
and his wife failed to turn up. However the chief ordered the
plaintiff's wife never to go back to the defendant.
The plaintiff's wife was much hurt that he had given the
information to her. She threatened to harm the defendant's wife.
reported the matter to Church authorities.
Consequently he was transferred from Semonkong or Phororong to T.Y.
which is near to
his parents' and his wife's parents' respective
homes. The reason for this, it is stated, was to ensure that the
should watch over the conduct of the plaintiff and
The plaintiff came to T.Y. in February 1984. He
came with some of the children leaving his wife who said
she was not a priest but a teacher. She thus remained with some of
of the marriage without the plaintiff's consent.
However after some pressure by the school management the plaintiff's
him at T.Y. in March 1984.
The plaintiff said that he was hurt when his wife
remained behind for he felt that his congregation at T.Y. would
regard the matter
as unorthodox and abnormal.
After staying together for two months the plaintiff's
wife disappeared. It was as late as 24th January 1985 that the
from P.U.I that she had found his wife at Makhaleng
at the house where P.W.1's husband lives.
The following day the plaintiff left in the company of
Rev. Morojele and the defendant's wife for Makhaleng with a view to
the plaintiff's wife back to him. The party appealed to the
chief to help but because of the lateness of the hour the chief
to hear them out the following day. The plaintiff and
Rev. Morojele were uneasy about the place where they were
Makhaleng because of its proximity to the place where
the defendant and the plaintiff's wife were living together.
They decided to go and see the chief about alternative
accommodation for the night. The chief came back with them to the
Before reaching it they saw the defendant conveying the
plaintiff's wife in a van driven from the premises. The plaintiff
his wife and accordingly informed the chief. The chief
and the priests tried to stop the defendant; but he didn't.
The following day a meeting was held and the plaintiff's
the defendant to give him his wife. Thereupon the defendant
"Do I go about carrying your wife on my back.This
prostitute (meaning his own wife P.W.1)goes to you at T.Y. saying
I have taken yourwife. I will send you back to your mother
tosuck her for I can see you got weaned prematurely."
The defendant is said to have been very angry when
uttering these words.
The plaintiff asked the chief to make him a letter of
introduction to higher authorities. The chief obliged
Then the defendant went to his vehicle and took out
something which the plaintiff later recognised to be a pistol.
The plaintiff and his party went on board the public
transport. They were followed by the defendant's van which stopped
public transport which had stopped to enable Rev. Morojele
to climb down to get a rubber stamp to have the letter duly
at the chief's office.
The defendant went past near where the plaintiff was
standing and headed for the place where Rev. Morojele was to get the
When the bus carrying the plaintiff and his
party resumed the journey the defendant came following in his van and
at some stage
overtook the bus only to stop at some distance ahead
and open the bonnet of the van and keep peering underneath it.
The plaintiff's attempts at resolving the differences
between him and his wife were finally thwarted as stated above. To
and she are not living together.
The plaintiff complains that the defendant did not
request his wife from him when she got employed by the defendant. He
that the defendant was not truthful in denying that he
and the plaintiff's wife live together as man and wife.
The plaintiff confirmed that in terms of CIV/T/667/80
'Mamoeti Pitso vs Lehlohonolo
Pitso the plaintiff
was his wife praying for condonation of her
adultery and decree of divorce on grounds of the then defendant's
adultery. Although the
plaintiff's wife prayed for condonation
of her adultery she did not say with whom she had
committed that adultery. But evidence shows that at the time she was
living with the defendant Lefaso Foulo. The plaintiff
denied that he
had done anything to cause his wife to be estranged from him.
Under cross-examination the plaintiff conceded that he
had earlier instituted an action number CIV/T/717/80 against his
the defendant from whom he had claimed M15,000.
The plaintiff said that he withdrew the claim for
Ml5,000 because it was too little when compared with the M100.000
which he said
he claimed later.
But strangely the claim for a lesser amount was made in
summons issued on 18th November 1986 while that for a greater amount
on 15th August 1986.
The question put by the defendant's counsel is logical
"on maturer reflection the plaintiff settled for a
lesser amount of M15.000 - ?
To which the plaintiff replied
"I had thought so previously because of the
confusion that I had that time."
The evidence of P.W.3 Rev. James C Morojele is important
in the sense that it provides a background to the problems that beset
plaintiff's marriage. He testified that it appeared to him that
the plaintiff's wife was responsible for the disharmony that
the marriage. P.W.3 through his mission as a marriage
counsellor learnt that the defendant was the man who fouled the
marital relationship that otherwise
existed between the plaintiff and his wife before the
plaintiff and his wife went to Phororong.
In the correspondence filed before court it appears that
the plaintiff at some stage wrote to the Executive Committee of the
thanking the Committee for harrowing him from the servitude to
drunkenness. P.W.3 said that the rehabilitation Centre to which the
plaintiff was sent did not receive him as an inmate for
rehabilitation but as a trainee whose acquired training would later
in the out-posts where he was to go at Phororong which is
in the mountains.
With respect I cannot see how a trainee would writea
letter thanking the Executive Committee for sendinghim without
his consent to a place which freed him fromdrunkenness if in fact
he was not a slave to the bondsof that habit. Questions put to
P.W.3 on behalf of thedefendant suggest that the plaintiff was in
dire needof rehabilitation. His letter at the end of
therehabilitation spell corroborates the defendant'scounsel's
After an application for absolution from the instance
was turned down the defendant gave evidence. He testified that he
plaintiff's wife. He said she is his employee at his
business at Ha Simione. She started working there in January, 1985.
in rented quarters. These quarters did not belong to the
defendant. Although he too was living in rented quarters he did not
together with the plaintiff's wife.
The defendant said that he heard that the plaintiff,
P.W.I and P.W.3 went to Ha Simione but he saw only the plaintiff.
When he came there the plaintiff just greeted the
defendant and left saying nothing. He never' asked where his wife
was. He denies
that the plaintiff ever vis visits his business
premises at Ha Simione.
He denied ever meeting or knowing the plaintiff's wife
between June 1984 find January 1985. He said he didn't know why the
wife left her husband. He said he never prevented her
going to her husband after her taking employment with him in January
He conceded that 'Mamoeti stays in a place which is so
close to where he is staying as to be regarded as the same place. He
that he prevented the plaintiff from seeing his wife. He
denied that he is habouring the plaintiff's wife. He said that he
saw a letter in June 1986 saying that plaintiff did not want
his wife working for the defendant.
Under cross examination the defendant said he
transferred only the plaintiff's personal effects to Semonkong in the
year he can't
remember. At that time he had been approached by the
church to convey those things. That is why he knew neither the
Asked if this was not in 1977 he said the year was
not in issue. He was insistent that he loaded and off-
i loaded the plaintiff's goods in his absence.
Confronted with the question that evidence was led and
not denied that he delivered the plaintiff's family on transfer to
he said that such evidence was not true even though
witnesses who gave it were not challenged in that regard.
Asked by court if he heard such evidence being led he
said no. He however conceded that when something untruthful
is said he becomes alert.
When told by counsel for the plaintiff that the
allegation was not denied because it was true he said he was denying
it at the stage
he was giving his evidence on his own behalf.
The cross-examination proceeded as follows:-
"You heard the plaintiff say he secured you to
transfer his laggage and family - ?
I heard him say I should come and collect his goods from
Maseru and by then he was already at Semonkong.
He further said you took both his family and his laggage
to Semonkong - ?
I never heard him say he hired me to fetch his family.
Did you hear him say so ?
Why didn't you hear him - ?
He was not saying what I did. I was not interested in
what I never did.
C.C - If somebody lies about you you ignore it. But did
your counsel challenge the veracity of the witnesses's
version that you delivered the plaintiff's baggage and family -?
I did not hear him.
I put it to you it was not denied under
cross-examination because it was true that you conveyed his baggage
and family to Semonkong
That's your opinion. Not mine.
You are avoiding this question for you wish to establish
that you did not know Pitso and his family from as far back as 1977 -
That' s your statement; not mine*.
You said before that you were employed by the Church and
not by Pitso but immediately afterwards you said you met Pitso
who said you should go and fetch his baggage. Which is
which - ?
He said the church had asked him to look for transport.
What year did he approach you to ask you to fetch
his baggage - ?
So you began to know him way back in 1943 - ?
It was in 1983.
Not 1943 - ?
It is a fact that he was transferred in 1977 -?
I am not the one who transfers priests."
The plaintiff's witnesses described the defendant as a
man of bad temper who was off-hand and ready to fight. I am
satisfied by his
brashness before this Court that he has not only
those characteristics but his demeanor in this Court has been near
while giving evidence under cross-examination.
The defendant denies that he is in love with the
plaintiff's wife. He denies that he fell in love with her at the
time her husband
was transferred to Phororong.
The defendant testified that the plaintiff's wife was
made aware of the instant proceedings by him. He said she is still
employment. When told that the plaintiff is still legally
married to his wife the defendant said he became aware when the
exhibited the marriage certificate in Court. The
plain-tiff's wife is said to have come to attend this trial not at
behest but because the defendant warned
against involving him in trouble.
The plaintiff's counsel proceeded to cross-examine
the defendant and the defendant in turn replied as
"Evidence says the plaintiff, your wife and Rev.
Morojele went to Ha Simione Makhaleng looking for the plaintiff's
wife - ?
I heard that evidence.
In your evidence in chief you said you only saw Rev.
It was never put to plaintiff or his witnesses that you
would come to say that you did not see your wife and Rev. Morojele -
I never saw my wife and Rev. Morojele. I only saw Rev.
It was never challenged that they went there the three
of them - ?
I don't understand this for it is only today that I am
giving evidence and I am denying it today.
So you admit that before you gave evidence today these
witnesses were not asked about these incidents - ?
I don't deny that they were asked questions but I am
saying today I deny that.
Are you saying that the plaintiff said nothing at the
meeting held concerning his wife - ?
There was no such meeting as this is confirmed by Rev.
Pitso saying he never said a thing to me."
I have no doubt that in denying obvious events which
took place the defendant has a lot to hide. His attitude accounts for
in the cocoa-nut.
The defendant called in aid the evidence of D.W.2
'Mamatseliso Mthobeni who is the plaintiff's wife's sister. She
she was sent by the head of her maiden family to
accompany the plaintiff's wife to her in-laws but the plaintiff's
mother drove them
away hurling a lot of abuse at them into the
bargain. She said that the plaintiff and his brother also chased them
away with sticks
and sjamboks. But it was never put to the plaintiff
that he chased his wife and her sister away with sticks and sjamboks.
was said is that because of the noise the plaintiff's
mother made accusing the plaintiff's wife and her sister of having
insulted her the plaintiff failed to take
advantage of the wife's return.
In argument Mr Matsau referred me to R.L.T. Thabane
vs A. Thabane and T.Ntsukunyane 1971-73 LL.R at 145
where it is said
"Where a spouse enters into an illicit association
with another person who is fully aware of his or her marital status,
spouse's husband or wife may be entitled to damages for loss of
consortium and for contumelia. However no damages are recoverable
for loss of consortium where the spouses have been living apart for
some time before the association is formed, and the recovery
damages for contumelia will depend upon such matters as the effect of
the association on the plaintiff's standing in the community
whether any insult was uttered in public or in private-"
In Gower vs Killian 1977(2) SA LR. at 393 the head
note indicates that
"In an action for damages for alienation of
affections and for adultery, it appears from the evidence that
plaintiff's wife had
met the defendant at work, where they had fallen
in love, and that they had been together in Johannesburg, working on
a stall their
employer had at the Rand Easter Show. Defendant
admitted committing adultery with plaintiff's wife on a number of
evidence further revealed that, at a meeting between
plaintiff, defendant, plaintiff's wife and his mother-in-law, the
had suggested a divorce and said that he would pay the
costs thereof as he was the 'guilty party responsible for breaking up
It was held
(a) "that the fact that plaintiff's wife left
after being in the defendant's company at work and in
Johannesburg was not enough. It had to be shown that the defendant
plaintiff's wife away from him, that he talked her over
and persuaded her to leave him.
(b) "Further, that the defendant's admission that
was the 'guilty party' responsible for breaking up the
plaintiff's home was not enough: such evidence was equivocal and did
not amount to an admission by the defendant that he had
actively enticed the plaintiff's wife away from him and had seduced
for her husband;
(c) Accordingly, that the plaintiff had failed to
discharge the onus in so far as the alienation of affection was
in respect of adultery the defendant having admitted
such adultery, that the plaintiff should be awarded Ml,500 damages."
Relying on the above authorities the defendant's counsel
urged on me to dismiss the plaintiffs claims.
But in The South African Law of Persons and FamilyLaw Barnard et al say at page 166
"When a third person infringes the consortium by
adultery, enticement or harbouring, a claim for satisfaction against
party can be instituted on the grounds of injuria."
I have no doubt that the defendant infringed the
plaintiff's consortium by harbouring. The defendant actually
prevente the plaintiff
from contacting his wife by spiriting her
away in his own van. I have no doubt that if the defendant had let
the plaintiff meet
his wife, or if he was prudent enough to heed the
plaintiff's complaint that he was dissatisfied with his wife living
with him such
an act would have gone a long way towards mitigating
It appears that the defendant felt that it was not in
his interests to oblige the plaintiff in his unrelenting pleas. His
was like that of a ferocious beast from whose mouth
nobody could dare snatch a meaty bone without running a serious risk
to his own
For injuria occasioned by the harbouring of his wife the
plaintiff is awarded Mll.000. Because the plaintiff's
restored only a fraction of the esteem he was held in
by the community and his congregation for contumelia suffered in
degrading his standing in his community as a priest the
plaintiff is awarded M4,000 only plus costs of suit.
JUDGE. 2nd March, 1990.
For Plaintiff : Mr Mphalane For Defendant : Mr
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