IN THE HIGH COURT OF LESOTHO
In the matter between:-
KATISO SELLO PLAINTIFF
ROSA KEKELETSO SELLO DEFENDANT
Delivered by the Honourable Madam Justice M. Mahase
On the 13th June, 2011
Civil Procedure – Husband and Wife – Divorce – Grounds for same – Application for absolution from the instance – Test to be applied. Rules 21 (4) and 30 of the Rules of this Court- Failure to comply with its provisions – effect thereof.
This is a divorce case which has been pending before this Court since the year 2002. There are no particular reasons advanced as to why there has been such an inordinate delay in the prosecution of this matter to finality. The minutes on the court file are not only silent on the issue but they are very terse and as such one cannot really say why this straight forward divorce case has not been prosecuted to finality, some nine years since the year 2002. The summons herein are dated the 8th October, 2002.
This however is not the main thing. I note that after such an inordinate delay in the prosecution of this case, it was finally first argued or prosecuted on the 15th November 2010, before this Court.
Parties herein were married by civil rites on the 30th October 1993 at Mazenod Roman Catholic Mission and in community of property. The said marriage still subsists.
Two children have been born out of the marriage of the parties. Their names and dates of birth are Mokete and Kelebone – born on the 20th February 1994 and 13th June 1997 respectively. These are matters of common cause. The rest of the grounds upon which plaintiff relies in support of his prayer that he be granted a final decree of divorce appear in the declaration at page 3, paragraph 6 thereof. They are as follows:-
(a)She (defendant) is accusing plaintiff of infidelity.
(b)She is in the habit of swearing at plaintiff and often using abusive language more often in the presence of employees.
(c)Always invites me to assault her.
It must be pointed out straight away that hardly any of these reasons constitute grounds for divorce; at least in this jurisdiction.
Plaintiff alleges that it is due to this kind of behaviour, which behaviour it is alleged started in 1998; that he ultimately, in October 2002, decided to move out of the matrimonial home.
The defendant has in her plea denied all of the plaintiff’s averments as appear at paragraph 6 of his declaration. In fact the defendant pleaded that actually it was defendant who committed the under-mentioned matrimonial wrongs against her, and which wrongs put an extreme pressure on their matrimonial relationship and marriage.
(a)That, plaintiff has been committing adultery with one Palesa Thoola, with whom he has been living together in concubinage at Ha Thetsane.
It has since emerged in evidence adduced before Court, that the plaintiff has actually fathered a child born of his adulterous union with Palesa Thoola.
(b)She denies ever having sworn at the plaintiff and alleges that instead, it was the plaintiff who never wanted to be rebuked about his adulterous association with the said Palesa.
(c)That plaintiff usually threatened her (defendant) that he would assault her, whenever she rebuked him about his love affairs.
(d)That plaintiff decided, sometime in May 2002; to move out of their bedroom. He denied her conjugal rights ever since that time.
(e)That sometime in October 2002, he left their matrimonial home to date for no justifiable cause.
The defendant has asked this Court to dismiss the plaintiff’s action with costs.
In fact, she ultimately asked this Court to grant absolution from the instance because the plaintiff has failed to make out a case which calls for an answer from her.
It is her plea that in fact, it is the plaintiff who has denied her conjugal rights; who has in fact actually deserted her, lastly, that it is defendant who was guilty of adultery and malicious desertion.
I pause to observe that in fact the plaintiff has not disclosed to court in his declaration that he has been living in adultery at Ha-Thetsane and that he has fathered an adulterine child with Palesa. He only did so belatedly after the defendant had pleaded and disclosed in her plea this adulterous association with Palesa. Plaintiff then filed an amended summons and declaration in which he then sort condonation of his adultery with Palesa. This therefore means that the plaintiff has not been honest and candid to this Court.
This is moreso because the defendant could not under cross examination deny that he has indeed been living with Palesa and that he had fathered an adulterian child with her.
I pause to observe in fact, that the plaintiff’s failure to disclose or state in his declaration, his adulterous affairs with the said Palesa, is contrary or is in violation of the provisions of Rule 21 (4) of the Rules of this Court; so also is his failure to pray for condonation of same.
This Rule provides that:
“Where a plaintiff who sues for restoration of conjugal rights, divorce or judicial separation has been guilty of adultery, he shall state the time and place of such adultery and in both summons and declaration he must pray for condonation thereof.”
Regrettably, it is not clear from the Court’s file whether or not the defendant has had this irregular step taken by the plaintiff challenged. Defendant was at large to invoke the provisions of Rule 30 of the Rules of this Court. However, since there is nothing on the court’s file indicating that she did so she was probably estopped from doing so after she had taken a further step with knowledge of the irregularity or impropriety.
Be that as it may, it further transpired under cross examination of plaintiff that he has also had some association with two other unnamed ladies; other than Palesa Thoola. He sort to qualify that, when confronted with same by saying that those ladies were only visiting him (whatever that means) and ran short of admitting that he had adulterous association with them.
He has in the same vein neither testified about same nor disclosed them in his evidence in chief. They were revealed under cross examination upon him by defendant’s attorney. Even then, he did not apply for condonation of these new adulterous associations.
What the above implies, and this is a matter of common cause is that the plaintiff in this case, has not approached this Court asking that it grants him a final decree of divorce, with clean hands. He has neither disclosed nor confessed his other misdemeanours to this Court.
He has throughout his evidence and in his summons been readily blaming the defendant for everything which he alleges as having contributing to the sour marriage relationship and has blamed her for constructive desertion; while in fact he is himself the guilty party. He is not only the guilty party but he has sort to withhold the most essential and crucial evidence such as his numerous adulterian associations with certain ladies.
This is an inexcusable behaviour. The fact that he has withheld such evidence, and or that he has elected not to disclose that kind of information to court leaves much to be desired by his having instituted the proceedings in question in which he blames the defendant for having committed the matrimonial wrongs he alleges in his summons. As I see it, and on the contrary it is the plaintiff who has committed matrimonial wrongs, including a number of adulteries as against the defendant.
I pause to note that it is trite that it is immaterial, in divorce proceedings, whether the plaintiff’s adultery was committed before or after the commencement of the proceedings. The fact that the defendant does not plead the plaintiff’s adultery as a defence does not preclude the court from taking cognizance of it.
Vide Hahlo:- The South African Law of Husband and Wife.
This Court is therefore enjoined by the above stated principle of the law to take into account that the plaintiff has, under cross examination, confessed to two adulterous associations.
The fact that they were only confessed under cross examination further reveals that, but for such cross examination, the plaintiff was adamant to persist in not disclosing all of his infidelities although he is the one seeking a decree of divorce. This is, to say the least; an abuse of the court process, which should not be allowed by court.
I further note with trepidation that despite his having claimed against the defendant; restitution of conjugal rights, the plaintiff has told this Court under cross examination, and in no uncertain terms, that he and the defendant can never be reconciled.
Put conversely, the defendant has actually told this Court that there is no way in which he and the defendant could be reconciled.
It has been submitted, on behalf of the defendant, that what the plaintiff simply wants, is that the defendant should go out of his life and that even an order for restoration of conjugal rights claimed by him is just a mere formality which he will not abide by. That therefore, it is a futile exercise given the attitude of the plaintiff towards the defendant.
Vide Masupha v. Masupha 1978 LLR at page 190 – 192, where the Court dealt with a similar application of absolution from the instance. Among others it has been pointed out that the question to be answered by court at the close of the plaintiff case is: “Is there evidence upon which a reasonable man or court might find for the plaintiff" or put in another way: “Is there a prima facie case made against the defendant?”
In the instant case, it was the plaintiff who deserted the defendant. This he did under very dubious, unfounded allegations. He has not disclosed to this Court his adulterous associations. In particular he waited until after the defendant had filed her plea herein to do so. It emerged for the first time that in fact, plaintiff left his wife, the defendant for one Palesa Thoola with whom he had already fathered a child. Not only that; he further withheld from court that apart from Palesa, he has had other adulterous associations with two other ladies.
As if that is not enough, he had told this Court categorically and in very clear terms that he insists that there in no way in which he and the defendant could be reconciled. What plaintiff has actually done or what by implication he told this Court is that he, despite his adulterous association and his malicious desertion; has shut all doors for reconciliation between himself and the defendant.
This coming from the mouth and evidence of a man who has himself confessed to having engaged in three adulterous associations during the subsistence of his marriage and who has failed to apply for condonation of same; leaves one with a lot of unanswered questions as to his credibility. This, coupled with the fact that he is in fact the one who has maliciously deserted his wife and also coupled further with the fact that he has not come to court with clean hands leaves one’s mind boggled down to say the least.
This Court has already alluded to the fact that even the plaintiff’s so called grounds for divorce are actually far lacking in that regard. Refer to paragraph 6 of his declaration.
The grounds therein stated as grounds for divorce do not constitute such grounds to say the least. Plaintiff has, at paragraph 6 (a) actually admitted that he assaulted the defendant in what he refers to have done at the invitation of the plaintiff (whatever that means).
This is a typical case of a spouse who no longer wants anything to do with the other spouse, and who wants his wife out of his life regardless of the existence or not of valid and lawful grounds for doing so.
In conclusion, it has been submitted on behalf of the defendant that in fact the plaintiff has failed to make out a case which calls for an answer from the defendant.
It has, on the other hand been submitted on behalf of the plaintiff that there is sufficient evidence upon which a Court may find for the plaintiff. The said submission was so made without any attempt to substantiate same. Other than what the plaintiff claims in his declaration, the plaintiff elected to close his case without calling any other witness to substantiate his case. This he did even though it was made clear from the pleading stage and under cross examination that in fact what he relied upon was denied and that on the contrary it was him who has not only deliberately withheld the truth from the Court with regard to his adulterous associations; but it was also made clear that the grounds he sort to rely upon for divorce were/are not, strictly – speaking such as to found a case for divorce.
In fact the plaintiff could not deny that he was quick to blame the defendant for things she was not to blame in order to present her in a bad light and as the party responsible for the break down of the parties’ marriage. Vide paragraphs 4 and 5 of the defendant’s heads of argument.
In conclusion, this Court is left in no doubt that, if anything, it is the plaintiff himself who has committed marital wrongs against the defendant so as to bring to an end the existing bonds of marriage between them.
This Court actually observes that it is astonishing or bizarre for the plaintiff to allege as he does against the defendant that it was her who unjustifiably refused him marital privileges. This the plaintiff alleges even though he has not denied evidence to the effect that he is the one who firstly left or moved out of their matrimonial home in October 2002.
In fact, he even admitted in his evidence in chief and under cross examination that prior to that time, he had already left or stopped sleeping with defendant in their matrimonial bedroom, but had instead chosen to sleep in another bedroom.
It is the considered view of this Court that in fact, and in all seriousness, in the instant case, the facts are almost similar to the case of Masupha v. Masupha (supra), in that it is in essence the plaintiff who has actually committed matrimonial wrongs alluded to above against the defendant, with a settled and malicious intend to end the marriage bonds between the parties.
This is a fit case in which this Court is inclined to grant the prayer of the defendant, which was moved at the close of the plaintiff’s case; namely that of absolution from the instance. The plaintiff has dismally failed to make out a case which calls for an answer from the defendant.
There is a plethora of authorities which deal with the essential elements of the kind of application made on behalf of the defendant; i.e. that of absolution from the instance.
Both counsel have ably researched and referred court to same. I am most indebted to both of them. The said cases are; but to mention a few:-
- Masupha v. Masupha 1978 LLR 175.
- Minister of Safety and Security v. Madisha and Others (2009) 30 ILJ, 590 (LC).
- Claude Neon Lights (PTY) LTD. v. Daniel 1976 (4) S.A 403 (A).
- Malefu Francina Letsielo v. Ernest Lethola Khobethi and Others CIV/T/628/95 (unreported).
- Letsosa Hanyane v. Makrafs (PTY) LTD and Others CIV/T/392/2006 (unreported).
It is in the light of the above cited authorities, due regard being had to the circumstances of this case that, this Court has decided, that the defendant’s application for absolution from the instance be and is granted with costs to the defendant. Refer; Merber v. Merber 1948 (1) S.A. 446.
For Plaintiff: Adv. T. Mosotho
For Defendant: Mr. K.K. Mohau K.C
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