CIV/T/46/06

IN
THE HIGH COURT OF LESOTHO

In
The matter between:-

MANYATHELE
KHELELI PLAINTIFF

AND

MALINTLE
KHELELI DEFENDANT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 10^th
March 2009

In this defended
action for divorce, plaintiff seeks this Court to terminate the
marriage between him and the defendant. It is
the plaintiff’s
case that defendant is disrespectful towards him and his mother,
challenges his marital power, is uncooperative
and does not consult
him, has a tendency of using foul and abusive language towards him,
despises property bought by him, engages
him in endless quarrels and
brawls and no longer affords him conjugal rights.

Further that he
ended up leaving the matrimonial home to a rented flat and defendant
has frustrated efforts of reconciliation instituted
by both parties’
parents. It is also plaintiff’s assertion that there are no
prospects of reconciliation between the
two parties as the marriage
has broken down beyond redemption.

Defendant denies
all these allegations and contends that she has always been
cooperative and obedient towards plaintiff. She adds
that instead,
it is plaintiff who would sleep out of the matrimonial home but would
always get her forgiveness whenever he apologized.
Further that
plaintiff is fabricating non-existent reasons to found a case for
divorce.

It is her further
contention that the last time the parties’ elders intervened,
plaintiff started mending his ways. That
in addition, it is
plaintiff who left the matrimonial home and she is prepared to live
with him as husband and wife. She also
avers that there are high
prospects of reconciliation between the two parties and that
plaintiff is simply caught up in the ‘whirlwind
of worldly
pleasures’.

The evidence that
was adduced before the Court in support of each party’s case
was basically that of the parties alone with
none of them calling
other witnesses. In other words, in so far as the question of proof
goes, it is plaintiff’s word against
that of defendant.

It is against this
background that the question for the determination of this Court is
whether plaintiff has made out a case for
divorce. In terms of the
law of the kingdom, Courts can grant divorce on the basis of two
grounds, i.e. adultery or desertion
either malicious or constructive.

In the present
case, plaintiff is not accusing defendant of adultery or malicious
desertion. Rather it is his case that by her
actions defendant drove
him out of the matrimonial home. In other words, he is alleging that
she is guilty of constructive desertion.

The actions that
plaintiff accused defendant of through the evidence he placed before
this Court do not in my view amount to constructive
desertion.
Instead, it is my opinion that the things he complained about are the
usual problems that every normal family experiences
time and again.
Not to mention that defendant disputed all his allegations and went
on to make a commitment before this Court
that she is prepared to do
whatever it takes to make plaintiff happy so that he can go back to
their matrimonial home and they
can resume to live as husband and
wife and raise their minor children together.

To fortify
plaintiff’s case, Mr.
Tsenoli
referred this Court to the case of Macaefa
Billy v ‘Majoane Billy CIV/T/218/2005,
wherein it granted divorce to the plaintiff despite the fact that
irretrievable breakdown of a marriage is not one of the grounds
for
divorce in our jurisprudence. Indeed after careful consideration of
the merits of the Billy
Case (Supra),
I granted plaintiff therein divorce in spite of this factor.

My reasons therein
were inter
alia,
that not only had plaintiff left the matrimonial home and been living
with his mistress for a period of almost six years in a
house which
he had built for himself and his new family, but two children were
born of that union. In addition, it was common
cause that even prior
to the six years of the actual separation, the couple had been
sleeping in separate bedrooms for a period
of eight years so that the
total number of years of their estrangement was in the range of
fourteen (14) years. Whilst defendant
was also contesting divorce
mainly on religious grounds, I found that the marriage in question
had long died.

Coming back to the
present case, the plaintiff has also left the matrimonial home and
has been living apart from defendant for about
four (4) years. This
is not disputed. But other than this one reason, it is my opinion
that the facts in this case can be distinguished
from those in the
Billy
Case (Supra).
My reasons are that therein, prior to their estrangement violence
including the threat of use of a firearm had occurred resulting
in
police intervention, the parties had not afforded each other conjugal
rights for nearly fourteen years, plaintiff had been living
with
another woman for six years and two children were born of this union.
None of this is the case in
casu.

Further, I do not
hold the view that the differences that were cited before this Court
in the present case are as serious and/or
irreconcilable as was the
case in the Billy
Case (Supra).
As I have already stated, it is my opinion that they are normal
problems that exist in any normal marriage. I therefore do not

accept that the marriage herein has irretrievably broken down. The
concept of irretrievable breakdown of a marriage was considered
in
the case of Swartz
v Swartz 1984 (4) SA 467 (A)
on which I mainly relied for my decision in the Billy
Case (Supra).
Therein Corbett JA stated that:-

“The
question is whether the marriage between appellant and respondent has
reached such a state of disintegration that there is no
reasonable
prospect of the restoration of a normal marriage relationship between
them. Looking at the facts objectively I am of
the opinion that the
question must be answered in the affirmative. At the time of the
trial the parties had been living apart
for three years and the
relationship between the appellant and Miss Lintvelt had been in
existence for five-and-a-half year….”

While I am
cognizant that plaintiff in this case is adamant that he does not
love defendant any longer, looking at the facts, I
do not believe
their marriage has reached such a state of disintegration that it can
be said with certainty that there are no reasonable
prospects of
restoration of a normal marriage relationship between them. This is
so despite the fact that plaintiff has been living
out of the
matrimonial home for about four (4) years.

For the foregoing
reasons, it is my finding that plaintiff has not successfully made
out a case for divorce and I accordingly dismiss
his claim with
costs.

N.
MAJARA

JUDGE

For
plaintiff : Mr. P. Tsenoli

For
defendant : Mr. Molati