HIGH COURT OF LESOTHO
by the Honourable Mr. Justice WCM Maqutu on the 21st March 2005
3rd December 1998 plaintiff issued summons against defendant in which
of divorce on the grounds of defendant's adultery. Or alternatively
Restitution of conjugal rights failing compliance therewith:
A decree of divorce on the grounds of defendant's constructive
of the benefits of the marriage
of the minor children
or alternative relief.
parties who are domiciled in Lesotho were married to each other at
Butha-Buthe at the District Administrators Office on the
daughters were born of the marriage namely:
born on 27th July 1976.
born on 9th February 1981.
grounds of plaintiff for seeking his remedies are in paragraphs 6 and
7 of his declaration and I will quote them in full:
marriage has been relating stable until when the following acts were
committed by Defendant with the intention of terminating
6.1 On or about Easter 1996 Defendant went to Swaziland for holidays
without consent of Plaintiff and thereafter would leave the
matrimonial home without informing Plaintiff about her whereabouts.
6.2 Plaintiff found cohabitation and sexual intercourse with
Defendant intolerable as Defendant was boasting about her lovers and
insisted that each of them should do whatever pleases oneself.
6.3 Defendant on several occasions when the relationship was tense
threatened to kill Plaintiff and she actually attempted to stab
Plaintiff with a knife.
6.4 On several occasions Plaintiff found medicine from witchdoctors
placed in their bedroom by Defendant and he decided to
in the common bedroom and eventually does no longer sleep at his home
nor even eat food
aforesaid acts by Defendant were committed with an intention to
terminate marriage relationship"
in plaintiffs declaration is the case that defendant has to answer.
To these defendant answer is the following:
Paragraph 6 thereof
6.1 Contents are denied. Parties discussed trip to Swaziland and
agreed. It is Defendant's case that on the contrary it is Plaintiff
who has deserted the family for no good reason since 1996.
6.2 Contents are denied. It is Defendant's case that if Plaintiff has
found cohabitation and sexual intercourse with Defendant
it is because of the several affairs that Plaintiff has/had, evidence
of which Plaintiff still has.
6.3 Contents are denied. Defendant does not even know how to handle a
knife other than as a household implement.
6.4 Contents are denied. It is Defendant's case that Defendant does
not even believe in witchcraft. It is Defendant's case that
averments therein only help to show that Plaintiff has deserted
Paragraph 7 thereof
are denied. Plaintiff wants to benefit from him own wrong doing.
1st March 2000 the trial began.
duly sworn was the first witness. He told the court that trouble
began during the Easter of 1996 when defendant went to
without plaintiffs permission. When she returned plaintiff tried to
talk to her but defendant said she was not satisfied
had disagreed with her each party should do as he or he pleases.
According to plaintiff things were never stable.
There never was
peace despite family intervention. There were several minor
incidents. For example defendant brought medicines
witch-doctors, when plaintiff complained defendant would say those
medicines were brought by plaintiff. Plaintiff objection
defendant would consult witch-doctors without reference to him.
peace in the family was not restored plaintiff became afraid of
eating the food defendant had prepared. Defendant did not afford
plaintiff conjugal rights although she continued with her wifely
duties. Because of fear of medicines quit the bedroom and went
sleep in the dining room. Defendant did not call him back to the
bedroom. During this time defendant and plaintiff were no more
talking to each other.
complained that defendant threatens to kill him. After plaintiff was
transferred to TY he no more slept at their home
in Masianokeng. He
would come to Masianokeng attend to children's needs and go back. Ask
by his counsel whether plaintiff and defendant
ever attempt to settle
their differences, plaintiff said he was unable to settle their
differences, but defendant went the family
but that did not help.
They are still not talking to each other. Plaintiff consequently
blames defendant for making his life intolerable,
constructively deserting him. Consequently he asks for an order
directing defendant to restore conjugal rights. Failing
divorce on the grounds of constructive desertion together with the
aforementioned ancillary prayers.
cross-examination Plaintiff told the court that he had given
defendant permission to go to Swaziland but that permission was
withdrawn in December 1995 because defendant go drunk. Plaintiff
denied that permission had been withdrawn because of Masebonang's
financial problems - but defendant had solved those problems. The
reason for his change was the carelessness and drinking that
place during such trips.
denied that she welcomed defendant and kissed her when she came back
but said defendant had kissed plaintiff while plaintiff
was in bed
half asleep. Defendant is wrong when she says he only changed his
attitude after three to four days - perhaps defendant
his dissatisfaction after three to four days. Plaintiff admitted that
he had said defendant had been opening her thighs
in Swaziland -
consequently his daughter Lianano spit on plaintiffs face - which
plaintiff regarded as an insult.
admitted he did use the services of a witch-doctor called Linakane to
strengthen and protect their business. He never
in their home at Majakaneng Masianokeng. Plaintiff later conceded
that Linakane once went to Majakaneng to
strengthen and protect their
home in 1988 after he had built their house. Plaintiff denied he
brought medi cines into the matrimonial
home after that.
insisted that defendant did threaten him with death. Plaintiff denied
he did not tell defendant about his transfer to
TY. Plaintiff denied
he just took all the blankets to TY. Plaintiff did not agree that he
was making life intolerable for defendant.
denied he had several adulterous affairs with women such Mookho - who
pregnancy plaintiff terminated. Plaintiff denied
he had an adulterous
relationship with Mantolo Moshoeshoe. Plaintiff admitted he had a
love affair with Tsooana Mokose and that
she resided at Moshoeshoe
II. Plaintiff conceded that his wife might have known of this love
affair with Tsooana Mokose in 1995.
Plaintiff denied that he refused
to terminate that love affair saying he had messed her up. Plaintiff
admitted that relations with
defendant deteriorated to such an extent
that he did not speak to her. But plaintiff added that this failure
to speak to defendant
was the result of defendant's mistakes.
denied calling defendant a witch after plaintiffs love affair with
Tsooana. He denied opening the television aloud to
at night. Plaintiff denied disconnecting electricity at the house and
restoring it only when the family intervened.
re-examination plaintiff mentioned that it was in December 1995 when
defendant got drunk that he decided no more to permit defendant
to Swaziland to avoid such behaviour. Plaintiff said defendant only
suspected him of having love affairs with Mookho and
Plaintiff denied he
to terminate his love affair with Tsooana Mokose. Defendant condoned
that adultery. Plaintiff admitted cutting electricity
twice in 1996,
it was because defendant was not allowing him to use that
electricity. Their differences could not be effectively
because after her return from Swaziland she said every one should do
as he or she pleases.
second witness was Ralimeko Tjakata duly sworn he told the court that
in 1998 he stayed at the home of Plaintiff and defendant
used to work on and of. One day as he was cleaning weeds - he was
told to wash the car by plaintiff. Defendant stopped
her saying that
would finish water. Plaintiff went to draw the water. Defendant
stopped plaintiff and they wrestled over the bucket
which was in
plaintiff hand. Defendant hit plaintiff with her head and slapped
him. Plaintiffs glasses fell. Defendant then spilled
Plaintiff told Pw2 to use the cloth to clean the car without water.
cross-examination questions were put denying the assault saying it
was plaintiff that strangled defendant. I reply Pw2 said
it was the
defendant who also strangled plaintiff. They fought in front of the
house. Pw2 says he left them fighting.
witness was Tsoenki Rasoeu. He told the court that between 1995 and
1996 he worked as plaintiffs garden boy who also looked
rabbits. One day between 9 and 10 pm as he was taking rods he saw
defendant through the kitchen door walking along
the passage with a
knife in her hand. At that time plaintiff was sleeping in the dining
room. Pw3 decided to go and look at what
was going on through the
window of the lounge. He heard children trying to stop her saying
"Mum leave dad to alone he sleeping."
Defendant said to the
children "Let plaintiff repeat what he was saying." Pw2
recalled that plaintiff had earlier said
to a little child. "If
a dwarf is in the house, let it get out of my house, its mother's
vagina -'nyoana maeona. "
realized plaintiff was awake Pw3 went to his room. Plaintiff later
came and said Pw3 should tell the Mapetla family what
was going on,
if anything should happen to him, he must tell the Mapetla family.
The following day nothing happened, they both
went to work.
cross-examination Pw3's opportunities for proper observation were
challenged. Pw3 added that plaintiff had told the small child
bogeyman Koko and say if there is a dwarf it should get out, its
mother's vagina. Lianano objected to what plaintiff was doing
teaching the small child to be vulgar. Pw3 insisted defendant had a
knife when he was stopped by Masebonang and Lianano from going
where plaintiff was sleeping. Pw3 told the court (in answer to
questions) that he had never heard plaintiff call defendant a
Pw3 said he did not hear defendant saying to plaintiff "why are
you sleeping on the blankets of a witch." Pw3
also said he did
not see plaintiff throwing away a pillow and bringing a gun into the
fourth witness was Jubilee Mapetla. He told the court that plaintiff
was his elder brother's son. They had reprimanded
defendant several times. They had invited the family to try and
stabilize their family life. It was around 1996 or
1997 or even
earlier when defendant complained that defendant refuses to take
orders. Pw3 said plaintiffs orders should be carried
out by the
woman. Defendant did as she wanted against the will of the family.
There was a trip she took when permission was denied
but she just
went. The family said defendant should listen to her husband.
Defendant had admitted she went on the against her husband's
instructions. Defendant still did not listen. She said all she
was plaintiffs money not plaintiff. The family kept on meeting until
defendant said she would not talk to the Mapetla family
any more. The
family had given good advice but it did not work.
Pw4 admitted he did not attend all the meetings. He was at 2 or 3
meetings. It was to build peace. He was present
when the Swaziland
trip was discussed but he came ten to 30 minutes late to that
meeting. He did not remember who chaired that
meeting. Pw3 said if
defendant said there was no specific meeting about the Swaziland trip
he would say the matter was raised.
In all family meetings he
attended the Swaziland trip was never raised. It arose in my absence.
Pw4 is not sure if he was told
of the Swaziland trip in the presence
this witness plaintiff closed his case.
duly sworn give evidence in her own defence. She told the court that
from the inception of the marriage relations between
her and the
plaintiff were not good. From November 1975 she and plaintiff used to
clash seriously because of plaintiff s behaviour.
He would leave
home claiming to be going to work and clash with Maseru people at the
feasts he went to. He clashed with Ralitsie. While he
was in Leribe
he would go the whole night and come in the morning saying he had
gone for nice time. Defendant reported this plaintiffs
Mapetla. Plaintiff refused to attend the meeting that Libote had
convened. Friction continued between them.
plaintiff had opened a night club at Leribe, he could not be found
there. This happened even when defendant was supposed to
be taken to
hospital in 1981 to deliver a baby. This increased friction.
Plaintiff took defendant to a circus in Ficksburg in a
accompanied by a girl friend. When Plaintiff had been transferred to
Masianokeng he ran the night club at Leribe through
a female employee
called Mookho. She discovered there was mischief with plaintiff
because Mookho no more respected her. Defendant
also discovered dirt
on plaintiffs bed that showed two people had slept together.
Plaintiff paid for Mookho's abortion.
Easter 1996 defendant says she went to a sports tournament in
Swaziland. Plaintiff had agreed but when she was about to go
plaintiff said he had no money. Before defendant left for Swaziland
she gave plaintiff
for Masebonang's financial problems that were in the way of the
Swaziland trip. Plaintiff accepted the money and said nothing
the trip. Plaintiff never intimated to defendant that he had changed
his mind while defendant was preparing for the trip.
in the absence of plaintiff because plaintiff had gone to Thaba-telle
on duty, if she was not mistaken. When defendant
came back plaintiff
welcomed her and he kissed him as he was in bed. It was only a day
later that she noticed plaintiff was unhappy.
told defendant that he had invited Shadrack Mapetla and defendant
should find some one so that the issue of the trip to
discussed. Defendant said when they have a problem he always called
some one be it a domestic servant or a child
because defendant did
allow him to talk. Defendant noticed plaintiff was grumbling saying
defendant had gone to Swaziland without
permission. Plaintiff did not
come home for three days and told a child when he came back that he
had gone to cool his head.
1996 after several abortive meetings a meeting was held before the
police public relations staff. At that meeting plaintiff
said he had
and found it on defendant. From that incident plaintiff told the
police he concluded defendant wanted to kill him. Plaintiff
complained that defendant went to Swaziland without permission. The
police said this should be referred to a family meeting.
plaintiff became very angry and said defendant was eloquent before
the police and also said defendant was a witch. Plaintiff
insulting her when ever he came home from TY.
he came from TY and said to their daughter Lianano "This mother
of yours had gone to Swaziland to display her thigh
s. Lianano spit
on plaintiff and brought plaintiffs sister. She apologized for
spitting on plaintiff. Plaintiffs sister encouraged
remain in TY until tension subsided. One day plaintiff took his
personal effects and asked for utensils. Lianono (their
helped him pack. He had never said he had been transferred to TY
because their relations were bad. They no more spoke
to each other.
occasion when plaintiff was at their marital home at Masianokeng, he
switched on the television aloud at night. Defendant
would switch off
the television in the morning and she switched on the radio. When
defendant told him he was wasting electricity. This was in 1996.
Plaintiff ripped of the switches and left the wires
bare. A family
meeting had to be arranged two weeks later before plaintiff restored
the electricity supply.
told the court she never boasted about having lovers. Plaintiff
according to defendant called her a prostitute and a witch
because of that he had left for TY on transfer. He only came to the
matrimonial home to come and insult her. Plaintiff even
he would find a new wife. He did not maintain her between 1997 and
1998. Plaintiff was even teaching the two years
old child Tsepo to
insult her. Defendant denied he ever threatened Plaintiff with a
knife. When Plaintiffs insults became intolerable
defendant would say
plaintiff should go back to TY where he lived. On the 31st December
1999 and on the 1st January 2000 when plaintiff
had come to a wedding
he slept in the servant's quarters and locked the door.
told the court she never left the matrimonial home except when he
went an excursion to Swaziland. Plaintiff however used
himself for several days without telling her. Defendant said - on the
fact shewas entitled to a divorce not plaintiff.
There was no need
for a divorce it
plaintiff who has problems. Consequently defendant asks for a
dismissal of plaintiff s action so that he can go back to his
cross-examination defendant told the court that she tried everything
in her power to put things right after the trip to Swaziland
failed. They just could not talk to each other. Defendant told the
court that she was not sure if her marriage had irretrievably
down, but she wants to mend it and to sort her differences with
plaintiff. It is plaintiff that has denied her conjugal
1996 out of plaintiffs own choice. Her marriage with plaintiff has
always been full of problems during the 24 years
of its subsistence.
If plaintiff comes home and be with the children, she would be happy
even if she is denied conjugal rights.
It is plaintiff who chooses
not to talk to her. Plaintiff can talk to the children.
the Law of Persons and Family 1st Edition page 183 summarises the
legal expectations in a marriage by saying:
"Marriage establishes a community of life, or consortium omnia
vatae, which obliges the spouses to live together, afford each
reasonable marital privileges, and be faithful to each other. These
duties cannot be directly enforced, however. An aggrieved
remedy is to seek an order for restitution of conjugal rights,
failing which a divorce on the ground of malicious desertion:
cannot compel his spouse by judicial decree or brute force to honour
v Makara 1978 LLR 30 at page 34 the Court of Appeal said marriage is
not like other contracts that can be terminated by
any of the parties
at will. The President of the Court of Appeal Mr Justice Maisels
quoted from Carter v Carter 1953 (1) SA 202
at page 205 B-C the
"The reason why this is so is because it is in the interest of
the state that the marriage tie, which involves the matter
of the parties and the interest of the offspring, should not be
to be an erring spouse who has to be ordered to mend his ways. If the
desertion is proved, that party has to genuinely
mend his ways. In
order to give such a party an opportunity to do so, the court issued
a restitution order in the hope that there
will be a lasting
resumption of normal married relations. In other words in Lesotho
public policy supports the sanctity of marriage.
will not lightly put an end to a marriage even a sick one.
there is a party that is to blame, and can be held to be in
desertion, the court will not issue a restitution order. In other
words plaintiff must approach the court with relatively clean hands -
unless the court has been asked to condone plaintiffs bad
such as adultery. For a restitution
work plaintiff must be willing, restitution of conjugal rights cannot
be against plaintiffs willing. As Watermayer JA said
in Abramson v
Abrainson 1946 AD 58 at pages 69 -70 said.
"It requires an attitude on the part of plaintiff which does not
make approaches on the part of defendant impossible or fruitless,
the purpose of it is really to afford time and opportunity for the
defendant to make an approach to plaintiff and the parties
minded to come together."
words plaintiff must no be seen as being substantially in desertion.
This is the problem in cases of desertion.
individual irritations and offences that can be classified as the
rough and tumble of marriage cannot be in our law (as it is
present) be enough to constitute marital offences. The reason is
simply that they cannot in themselves individually show a settled
intention to bring to an end the marriage. If they are persisted in,
then the animus disserendi is manifested. Hahlo Husband and
Edition page 394 has crisply put the position as follows:
"The conduct ...must exceed in gravity such behaviour, vexations
and trying though it may be, as every spouse bargains to
accepting the other spouse 'for better or for worse.' The ordinary
wear and tear of marriage does not in itself suffice"
problem in our marriage law is that divorce is based on fault when in
actual fact in a majority of cases the breakdown
of marriage is
usually fault on both sides. It is only in adultery that one party
declares its fault and ask for condonation, In
cases of actual or
constructive desertion where one of the parties leaves the marital
home, it is easier to apportion blame and
determine fault. In cases
of constructive desertion where parties continue to be in on house
and do horrible things to each other
the task of the court becomes
Republic of South Africa and Great Britain, the sole ground for
divorce is irretrievable breakdown of the marriage. Defendant
demonstrated that her marriage relationship with plaintiff has
irretrievably broken down. Nevertheless defendant wants to maintain
the marriage despite the fact that plaintiff has withdrawn from her.
In the case before me there is a problem because our law remains
firmly rooted in the past. Plaintiffs admitted withdrawal from
defendant constitutes constructive desertion instead.
has to be in some way innocent to get a restitution order that will
precede the divorce he seeks. He says his wife does
not respect his
authority as husband, but finds it hard to put together a series of
a persistent conduct in this direction. He has proved she is a
difficult woman who out-talks him even if where he is right.
problem is that those incidents happen within the home where there
can be no witnesses. Defendant may be one of those people
who do not
know how to say sorry when she has hurt plaintiff. It is a fault many
wives have, but cannot be divorced for this.
has not made out a case of adultery. What he has done is to show that
he suspects his wife of having committed adultery
while she was in
Swaziland without his permission. Allegations that are
unsubstantiated can easily be turned against a person who
When this happens the accuser can find himself accused of harassing
the other spouse by making false accusations thereby
life of that spouse intolerable. Defendant also makes several
accusation of unsubstantiated instance of plaintiffs
other women. Listening to defendant one got an impression that
plaintiff from the inception of marriage was and remained
sexually loose with other women. These wild accusations left a very
unfavourable impression about defendant on the court.
unfounded suspicions she is as bad as plaintiff.
the year 1994 to 1995 plaintiff conceded that he committed adultery
with Matsoone Mokose which defendant condoned. This condonation
admitted by defendant. What defendant complained about without bring
any proof was that plaintiff persisted in that adulterous
relationship with Matsooane Mokose and refused to terminate it. It
was against this turbulent background, between August and December
1995 that defendant asked for and got permission to go on an
excursion to Swaziland. Plaintiff says he withdrew that permission
December 1995 because defendant got very drunk on Christmas day. His
grounds for doing so were that he was afraid defendant
misbehave in Swaziland.
I do not
believe defendant when she says she did not know of her husband's
change of mind. What is clear from the evidence is that
persisted with arrangements of which plaintiff was aware. When
plaintiff placed the financial problems of their daughter
in the way
defendant found the money and left while plaintiff was at Thaba-telle
on duty. It is undoubtedly wrong for one spouse
to take a journey
without the consent of the other spouse. In other words defendant was
definitely in the wrong. However for conduct
to become a marital
offence, it must be persisted in. Excursions from Lesotho such as
that to Swaziland without permission were
not persisted in,
that conduct does not qualify as a marital offence. It constitutes a
transgression against plaintiff which defendant
as erring human being
can be expected to make and be reprimanded.
attempt to kill plaintiff with a knife to which Pw3 testified was not
supported by plaintiff nor was the fight over water with
to which Pw3 testified. Quarrels over water and electricity and waste
of resources are common - if they do not take
the level of reducing
parties to poverty, they are the rough and tumble of marriage. The
incident of threatening plaintiff with
a knife would constitute a
marital offence if plaintiff had given evidence about it and Pw3 had
a good opportunity to see what
was happening, but Pw3 was not in a
good position. Pw4 unfortunately knew nothing except what he had been
told. The unhappiness
of the marriage and their failure to settle
their differences was admitted by both parties. It was difficult to
the offender although no doubt her conduct must have
partially contributed to the unhappiness of the parties.
of bringing medicines from witchdoctors is a marital offence if
persisted in. Both plaintiff and defendant are superstitious.
can be deduced from the evidence of both sides - despite defendant's
denial of this
her plea. If plaintiff had brought evidence from other people that he
objected to the bringing of medicines from witchdoctors,
have helped. Defendant said it is plaintiff who brought witchdoctors
in their house at Majakaneng which turned out to
be true despite
plaintiffs earlier denial. To a man who lives in Lesotho Majakaneng
is a name that implied villagers were Christian
converts - therefore
they could not publicly display their belief in witchdoctors and
their medicines. It seems defendant is taking
advantage of plaintiffs
lack of witnesses, unfortunately courts act on evidence not
suspicions. Plaintiff says he now refuses to
eat the food defendant
has prepared. In the absence of proof that defendant intends to
poison him - it is the plaintiff who is
committing a marital offence
of leveling an unsubstantiated allegation against her. Plaintiff is
also by implication violating
his marital duty of eating the food
defendant has prepared without good cause. Indeed refusing to eat
food prepared by the wife,
if persisted in, constitutes malicious
(constructive) desertion of the wife. On this issue it is plaintiff
who is on the defensive
conclusion, much as defendant is a difficult person, who does not
easily admit she is wrong, plaintiff has not demonstrated that
in wilful constructive desertion. Plaintiff has over-reacted to
common every day
by his wife. Relations between husband wife have worsened to a very
unhealthy stated. Yet our law cannot help them. On
before me defendant cannot be declared a wilful deserter.
can be criticized for maintaining irretrievably broken marriages by
insisting on one of the parties being at fault alone.
Then after that
insisting on the repentance of that party, because divorce cannot be
granted "until hope for a reconciliation
has been removed."
Voet XXIV. 2.9. The guilty party can pretend to have repented until
the restitution order lapses to frustrate
a divorce. In the case
before me, it is plaintiff rather than defendant who seems to be in
malicious desertion of defendant.
therefore no option but to dismiss plaintiff's claim with costs.
Plaintiff: Mrs Mpopo
Defendant: Mr Masiphole
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