CIV/T/331/81

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

NTSOAKI
PHAKOE Plaintiff

V

SALE
PHAKOE Defendant

JUDGMENT

Delivered
by the Hon Acting Judge Mr Justice J. Unterhalter on the 1st day of
December 1982

This is
an action in which the Plaintiff claims an order for the restitution
of conjugal rights and failing compliance therewith
a decree of
divorce, division of the joint estate, custody of the minor child,
maintenance for the minor child at R100. per month,
and costs of suit
Alternatively she claims a decree of divorce on the grounds of the
Defendant's adultery, with the same ancillary
relief.

It is
common cause that the parties were married to each other by civil
rites at Maseru District Admini­strative Office on the
16th
January 1980 and that the marriage still subsists; that the parties
are domiciled within the jurisdiction of this Court; and
that there
is one child born of the marriage, a boy on the 13th October 1980.

The
Plaintiff's declaration in effect alleges a constructive desertion
There are allegations of assaults by the Defendant upon the

Plaintiff, of the Defendant having committed adultery, of the
Defendant having acted thus with the intention thereby of terminating

the

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marriage,
and that by reason of these facts the Plaintiff left the common home
of the parties. Save for admitting a minor assault
upon her in June
1980 the Defendant denies the Plaintiff's allegations.

The
Plaintiff in her evidence told of quarrels

between
the parties and an assault upon her in June 1980, saying that
Defendant lashed her over the shoulders with a belt until
it broke.
She said that this caused marks on her body and she also indicated a
black line to the Court, upon her left cheek. She
also referred to a
second assault upon her by her husband saying that this took place on
the 1st September 1980 when he again beat
her up at the time when she
was eight months pregnant. She says that after this she went to the
home of her parents in accordance
with the ngala custom In
cross-examination she said that she had also returned to the home of
her parents in accordance with that
custom after the attack upon her
in June 1980.

In her
evidence in chief she says that on the 27th July 1981 her husband
tried to stab her with a knife.

In regard
to the allegation of adultery she said that she used to find her
husband together with a woman 'Mamichael Makume and they
would laugh
at her and humiliate her. She says that this woman had a child and
that child has similar features to the child born
to the Plaintiff of
her marriage with the Defendant. There is no evidence of sexual
intercourse between the defendant and Mamichael
Makume nor of
opportunities for such intercourse and I should say at once that it
cannot be held on the evidence adduced in this
case that adultery was
committed by the Defendant.

The
Plaintiff says that the Defendant is not maintaining her nor the
child of the marriage

In his
evidence the Defendant stated that he wished his wife to return to
him. He said that the first quarrel with the Plaintiff
arose from her
request that she go to the home of her parents to have her first
child.

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He was
not in favour of this because he did not want his home to be
unattended while he was away to work. He suggested that the

Plaintiff's mother come to Plaintiff to assist her, but the Plaintiff
objected to this. According to him she said that he was dreaming;
he
regarded this as an insult and as she continued to insult him he
lashed her with a belt on her shoulders She went to work the
next day
but did not return in the evening. He then sought her out at her work
on the following day when she informed him that
she had ngalaed and
said that their parents should meet to discuss the matter. He said
that occurred and that the Plaintiff was
reprimanded. She returned to
the common home and another incident occurred when they quarrelled
about her not having prepared food
for him. He says that she held his
jacket about his neck and that he pushed her back on to the bed and
slept on another bed in
the room. His version had not been put to the
Plaintiff when she was cross-examined by the Defendant's counsel.

He says
that he reported the incident to his parents but a family meeting was
not held because his father was ill and his mother
was nursing the
father He says further that,accompanied by one Libe Ntlama,he visited
the Plaintiff at her work and his companion
said to the Plaintiff
that if there had been a quarrel she should return to the common
home. Again this was not put to the Plaintiff
in her
cross-examination. He describes a meeting with parents of the
Plaintiff which took place in the absence of the Plaintiff
and at
which meeting the Plaintiff's father said that the Plaintiff would
return to the common home of the parties after her maternity
leave
had been completed. The Plaintiff had said in cross-examination that
as this was a matter between herself and her husband
and she had not
been present she did not know of this and her father had not told her
of it. She admitted going to the home of
the parents of the Defendant
but she said that she did this when she brought the child there to
show him to them, and in so doing
she was not returning to the
Defendant nor was she intending to return to the Defendant.

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The
Defendant said that he was not working and gave as reason for this
his fear that in his absence his house being unattended would
be
broken into. He admitted that he was not maintaining the child, and
when asked why he did not make payments to the parents if
he could
not pay money directly to the Plaintiff, he said in effect that the
Plaintiff's father had rejected him and therefore
he could do nothing
in regard to the payment of maintenance. When he worked Defendant
earned M400 a month.

He had
claimed against his wife in the Ralejoe Local Court in respect of
desertion and a certified copy of a judgment together with
a
certified translation were presented to the Court as Exhibit 'C. The
case was dismissed and it was said that the matter should
be
discussed by the parents before being brought to the Court. The
Defendant was also charged in that Court with using abusive
language
towards the Plaintiff. He was found guilty and sentenced to pay M30
or to undergo three months imprisonment but this conviction
and
sentence were set aside on appeal to Matsieng Central Court.

It was
submitted by counsel for the Defendant that as the Plaintiff had
returned after the assault in June 1980 that incident could
not be
relied on for establi­shing an element in the alleged desertion
This is correct but the incident must nevertheless be
considered in
surveying the total scene. It is clear that there is a most unhappy
state of affairs between the parties And the
crisp question is
whether by his actions the Defendant intended to terminate the
marriage.

In regard
to the principles that apply to a case of constructive desertion the
following was said in Froneman v. Froneman, 1972(4)
S.A. 197 T.P.D.
at .198(F):

"The law, as I understand it, is this: No conduct, however
reprehensible, will cons-titute constructive desertion unless the

necessary animus is present The animus may take the form of dolus
directus in the sense of a positive intention to put an end to

cohabitation; or it may take the form of dolus eventualis in the
sense of a knowledge

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by the defendant that the probable or possible effect of his conduct
would be a termination of cohabitation, coupled with a wilful

disregard of that probability or possibility. The animus may be
proved by direct or indirect evidence of the defendant's state
of
mind; it may, in a proper case, be inferred from the circumstances
including the nature of the defendant's unlawful conduct.
But, unless
the animus is established by inference or otherwise, there can, in my
judgment, be no finding of constructive desertion
That statement of
the law is, I think, in accordance with what was laid down by the
Appellate Division in Belfort v. Belfort. 1961(1)
S.A. 257 A.D., and
in the earlier authorities which were approved in that case."

I infer
that the Defendant behaved as he did with the intention of
terminating the marriage I draw that inference because the defendant

must have known that after he assaulted the Plaintiff in June 1980,
and she left him,there was a probability that if he assaulted
her
again she would leave him again. Moreover, he must have known that if
he attacked her during the eighth month of her pregnancy
this would
force her to leave him to protect both herself and the unborn child.
I find that he did attack her in September of 1980,
the probability
being that she would not have left him had he not attacked her. He
admits to some kind of physical encounter between
the two of them but
I attach no weight to it as it was not put to the Plaintiff when she
was cross-examined. If one behaves in
the way the Plaintiff has
described that the Defendant did behave then he was wilfully
disregarding the possibility that she would
terminate cohabitation
with him. This in my view proves the animus as referred to in the
case cited above.

A
submission was made to the effect that the Plaintiff had in fact
returned to the Defendant when she visited the Defendant's parents

with the child. I find this an unconvincing submission more
especially in the light of the explicit denial by the Plaintiff that

she intended to return to the Defendant. The lodging of the charge
for the use of abusive language does not suggest a reconciliation,

the failure of Defendant's parents to attend a conference with the
parents of the Plaintiff does not suggest reconciliation, and
the
failure of the

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Defendant
to maintain his child also caused me to doubt the sincerity of the
Defendant's desire that the Plaintiff return to him.
I bear in mind
that the Defendant brought proceedings in the Ralejoe Local Court for
an order that his wife return to him, but
there is nothing to show he
followed the injunction of the Court to have the parents discuss the
matter. If his father was ill
on the occasion when the meeting was
arranged with the parents of the Plaintiff it has not been explained
why a second meeting
was not arranged thereafter.

Submissions
were made in regard to a custom that it was said was to the effect
that a visit to the parents of the Defendant was
equivalent to a
return by the Plaintiff to the Defendant, but in the light of the
finding that I have made it is unnecessary to
consider this aspect.
The Plaintiff is clear that she did not return and I accept her
evidence as to this

I was not
impressed by the evidence of Libe Ntlama He was asked by me to recall
the number of occasions that he concerned himself
with the affairs of
the Plaintiff and the Defendant and he was definite as to these being
only those that he had described in his
evidence When I questioned
him as to whether he had accompanied the Defendant to the place of
work of the Plaintiff to ask her
to return to the Defendant, it was
only then that he acknowledged that this had taken place. It is
significant that he did not
give this evidence in chief and that he
did not add it when I gave him the opportunity to do so. The evidence
therefore by Defendant
on this aspect cannot be accepted, more
especially as it was not put to the Plaintiff in her
cross-examination.

Counsel
for the Plaintiff stated that he would not request an order for
maintenance in the sum of M100 but asked that it be granted
in the
sum of M50. This is reasonable in relation to what Defendant can
earn.

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In my
view as the child is only about two years old the proper custodiant
should be the mother, who appears to be a responsible
person.

The
Defendant is ordered to restore conjugal rights to the Plaintiff on
or before 13th December, 1982 and failing compliance therewith
to
show cause on 7th February 1983 why a decree of divorce should not be
granted, why there should not be division of the joint
estate, why
the Plaintiff should not be granted custody of the minor child of the
marriage, why the Defendant should not be ordered
to pay maintenance
for the child in the sum of M50 per month, and why the Defendant
should not pay the costs of suit.

J.
UNTERHALTER

ACTING
JUDGE.

1st
December, 1982.

For the
Plaintiff : Mr. M. Gwentshe

For the
Defendant : Mr. T. Monapnethi.