CIV/T/723/88
IN THE HIGH COURT OF LESOTHO
In the matter between:
LERENG TAASO Plaintiff
and
BOLAOANE TAASO Defendant
Before the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 4th day of November, 1988.
For the Plaintiff : Mr. K.T. Khauoe
JUDGMENT
Cases referred to:
Cooke v Cooke (1959)4 SA 24
Smit v Smit (1909) T.S. 1067
Davis v Davis W.L.D. 6/4/1937
Ashton v Ashton (1955)1 SA 46
Diamond v Diamond (1915) TPD 235
Van Hulsteyn v Van Hulsteyn
(1911)1 TPD 644
Payne v Payne (1948)2 PH B41 (C)
Van Zyl v Van Zyl (1925) TPD 130
Robinson v Robinson (1926) WLD 1
Ex parte Churin (1928) WLD 212
Ex parte Diedericks (1942) OPD 88
Prinsloo v Prinsloo (1945) OPD 49
Kuhn v Karp (1948) SA 825 (T).
The parties were married on 30th March, 1973. There were no children of the marriage. On 4th September,
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1979 the wife (Che defendant in these proceedings) was granted a decree of judicial separation a mensa et thoro mainly on the basis of assault by the defendant husband (the plaintiff in these proceedings), the husband not pursuing his counterclaim or opposing the grant of the decree to his wife.
The husband,aged 42 years, now seeks a decree of divorce "on the grounds of impossibility of reconciliation". The action is unopposed. The husband testified that since their separation, he and his wife, now aged 41 years, had never co-habited again. He had made several attempts at reconciliation. There had been family meetings with that objective, but all to no avail. They no longer have any mutual interests. In their discussions she had revealed that she likewise considered there was no hope of reconciliation.
It must at first be said that the grounds for divorce are not in any way enlarged by the grant of a decree of judicial separation: the grounds are and remain,adultery and malicious desertion. No evidence of any ground for divorce has been adduced and clearly a decree for divorce cannot issue.
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The only matter which concerns the court is whether, in view of the husband's prayer for alternative relief, the Court should, at the instance of the learned Counsel for the husband, Mr. Khauoe, order the rescission of the decree of judicial separation. A decree of judicial separation lapses on reconciliation, death, divorce,or on rescission by the Court. In the case of Cooke v Cooke (1) Bresler J. observed at p.25:
"Now it is the policy of the law that separated spouses should be brought together again. The decree is always provisional and is granted sub spe reconciliationis (Schorer Ad. Gr. 1.5.20). The Court thus makes the decree in the hope that the parties may, of their own accord, live together again (Smit v. Smit (2), at p.1079). It is obviously against public policy that husband and wife should perpetually be separated (Davis v. Davis, (3))."
The following passage from "The South African Law of Husband And Wife" by Professor H.R. Hahlo 4 Ed. pp.345/346, quoted by Holmes J. in the case of Ashton v Ashton (4) at p.48, takes matters further:
"The fact that one of the spouses defaults in carrying out the terms of the order, say, by persistent refusal to pay maintenance,
may give the other spouse a right to have
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the decree set aside, but it does not render the decree automatically inoperative, even where the other spouse regards the default as putting an end to the decree and treats it henceforth as a nullity. Like any other order of court, a decree of judicial separation can be varied or cancelled only by order of court, and not by anything the parties may do. At first blush the lapse of a decree of judicial separation in consequence of a reconciliation between the spouses appears to be an exception to this rule, but the true reason why the decree loses its force in this case is not that the spouses have treated it as a nullity but that it was always intended to apply only until reconciliation. It is an implied term of a decree of judicial separation that it is to lapse when the spouses become reconciled, the ultimate object of every decree of separation."
The latter aspect is confirmed by the observation of De Villiers J.P. in the case of Diamond v Diamond (5) at p.238 where he said that
"... the order (of judicial separation) is of a temporary nature; and if the parties, by consent, chose to live together again,
there does not seem to be any reason why the setting aside of the former order should be insisted upon."
In the earlier case of Van Hulsteyn v Van
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Hulsteyn (6) decided in 1911, Che appellant brought a petition to set aside an order of judicial separation, made eight years previously, on the ground that there was no possibility of the parties ever becoming reconciled. De Villiers J.P. observed at p.652:
"... I did not understand counsel for the respondent to dispute that this Court has the right to set aside, for good grounds shown, an order of judicial separation. Such an order is not one whereby the judge or the Court becomes functus officio. It is in its nature, as stated by Brouwer, a temporary order, and can be set aside or varied. But good and sufficient ground must be shown. Mr. de Waal (for the appellant) has argued that in the present case the ground is that there is no hope of reconciliation between the parties. Taking up the point where Mr. Esselen (for the appellant) left off, he says if any grounds are required then it is sufficient for the appellant to allege, as he does, that there is no hope of reconciliation between the parties. That surely cannot be a ground for setting aside a judicial separation. It may be an additional ground for keeping it alive, but I do not see how it can be a ground for setting it aside."
Smith J. was of the same opinion. He observed at pp.652/653:
"... it is contended Chat an order for
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judicial separation can be set aside without showing any grounds at all, and this, I think, is the real point which we are asked to decide in the present appeal. It is admitted that there is no authority for the proposition, and so far as I understood Mr.
Esselen's argument it is based on the passage in Schorer's note, to the effect that the order is provisional in its nature, and that when all hope of reconciliation has gone (that being the purpose, he says, for which orders of separation are granted), the order should be set aside, and the parties referred to their original position. Of course, the order is provisional, in the sense that it does not regulate the rights and obligations of the parties for all time, because it may be set aside, as I have said, when good grounds are shown for setting it aside. But the mere fact that it is temporary in its nature does not seem to me to be otherwise a ground for either party being able to get rid of it at any moment he pleases. Neither does it appear to me that the fact that it is asserted that there is no hope of reconciliation is a ground for setting aside the order; rather, it seems to me, it is a reason for keeping the order on foot. So long as the grounds exist for which the order of separation was made, so long, it seems to me, is the order justified."
Bristowe J. in the same case took matters further where he said at p.654:
"I think it is clear that an order for judicial separation may be set aside, where the causes
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of difference which led Co the order-being made have been removed, because an order of judicial separation is not intended to be
permanent, but is made in the hope that a reconciliation may ultimately occur between the parties. According to the decision in
Smit vs. Smit (2), an order for judicial separation may also be set aside where one party deliberately and wilfully disobeys it. But counsel for the appellant in the present case go further, and ask us to hold that the order may be set aside merely on the ground that one party does not wish any longer to be bound by it. Let us test that position by reference to the case of a judgment of judicial separation, based on the ordinary ground that living together is intolerable. If one of the parties could afterwards come to the Court and ask to have the order set aside without showing that life had become tolerable, then it would follow that immediately after the Court had set aside the order a fresh action might be brought for exactly the same relief. That of course, is an impossible position, and the Court would never set aside an order, if the respondent to the application to set it aside might the next day insist upon having the order made over again."
The question of rescission came before the same Court (De Villiers J.P. and Bristowe J.) in 1915 in the case of Diamond v Diamond (5). In that case the plaintiff wife had originally brought an action for a decree of divorce on the grounds of malicious desertion and alternatively for
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a decree of judicial separation: the husband had said that he was willing to return to his wife, but as she was in a position to prove misconduct and cruelty against him she was granted a decree of judicial separation. No order for her maintenance was made. The parties thereafter lived apart. Seventeen years later she applied for an order setting aside the decree of judicial separation and for an order of restitution of conjugal rights. De Villiers J.P. observed at pp.236/237:
"We were referred to the case of Van Hulsteyn v. Van Hulsteyn (6), in which it was said that where there was no hope of reconciliation between the parties that that is rather a reason for keeping the decree of judicial separation alive instead of setting it aside. The present plaintiff frankly admits, as indeed it appears from the former action, that her object in wishing to have the order
of judicial separation set aside is for the purpose of suing the defendant for divorce. I may say, whatever remarks may have been made by the Court in Van Hulsteyn v. Van Hulsteyn (6) must be interpreted in the light of the facts in that case, and, if the case is carefully read, it will be seen that the Court was referring to the party who was considered to be the guilty party. Reliance has been placed upon Brouwer, De Jure Connub. (2, 29, 18) On reference, it will be seen that he only deals with the case of the guilty party, and he considers under what circumstances could the guilty party be allowed to set aside an order for judicial separation, and he quite rightly remarks that the Court will only set it aside at the instance of the
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guilty party when it is clear that the grounds upon which the Court granted the order have been removed. If he removes the causes and he can prove that he has reformed, then only the Court sets aside the order, as the order for judicial separation is an order which is granted with the hope and object that the parties should be reconciled. But the innocent party is in quite a different position. This unfortunate woman has been living in this condition now for the past 17 years. Her husband has never contributed towards her support, and she now asks the Court to have the order set aside; and it seems to me it will be giving a guilty party a great advantage over the innocent to say that as long as he has not reformed she must necessarily be bound by the order. If she, for instance, had come to the Court and said that, in spite of his conduct, she forgives him, I have no doubt the Court would set aside the order. If she comes to Court and says she wishes the order to be set aside on the ground that there is no order for maintenance, and then, equally, the Court will set it aside. Under these circumstances, therefore, I consider that the plaintiff is entitled to her order setting aside the judicial separation."
Bristowe J. was of the same opinion. He further observed at p.238:
"One of the reasons given in the case of Van Hulsteyn v. Van Hulsteyn (6) for setting aside an order of judicial
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separation was that the causes for which the order had been granted had been removed. One of the causes was that the injured party (in that case, as in the present, the wife) desired a judicial separation. In the present case the applicant no longer desires that, and the fact of her having altered her mind (the alteration not being frivolous or capricious) corresponds to the removal of one of the causes, within the meaning of the judgment in Van Hulsteyn v. Van Hulsteyn (6)."
De Villiers J.P. also considered whether the prayer for restitution of conjugal rights was properly contained in the same action. He concluded that it was not, as did Bristowe J., basing their decisions on the following passage from the judgment of Innes C.J. in the case of Smit v Smit (2) at p.1069:
"Now it seems clear, on principle, that while the decree of judicial separation stands no action based on malicious desertion
could succeed; because the defendant could not be said to be maliciously deserting his wife while he was obeying the order of the
Court which directed him to live apart from her. While that order stood there could be no malicious desertion upon his part. ........
clearly where the Court has granted a decree of judicial separation no action for malicious desertion could lie until that decree had been set aside. The question is whether the Court has jurisdiction to set it aside if it be not observed. Now these decrees are not made with the idea that they should necessarily be perpetual. They are made in the hope that reconciliation may be effected and that the parties may of their own motion live together again, in which case the decree would become inoperative. And
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I think they are also made with the view that if one of the parties fails to observe the order - deliberately breaks and sees at naught the decree - the other may claim to have it formally set aside by the Court so as to be restored to the position occupied before in regard to the right to claim divorce for malicious desertion. I think that must be so on principle, and that therefore the Court has the power to set aside a decree of this kind." (emphasis supplied)
The husband in these proceedings is the guilty party. No question arises of his having reformed, in which case he could not seek rescission in order to demonstrate his reformation: he would have to first prove Chat he had reformed: see the case of Payne v Payne (7). The only evidence before the Court is that attempts at reconciliation over the years have failed, no more than that.
On the authority of Van Hulsteyn (6), there is no basis for rescinding the decree simply because the guilty party says there is no hope of reconciliation. But then I must respectfully observe that I do not necessarily agree with the conclusion of Smith J. in that case at p.653 that rescission on such a ground would result simply in the parties being statu quo ante, namely that one of them could again bring an action for judicial separation. As Innes C.J. observed in Smit (2), the
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particular spouse might be
"restored to the position occupied before in regard to the right to claim divorce for malicious desertion."
It is clear that while a decree for judicial separation is in force, an action for divorce on the grounds of adultery may be brought, that is, without the necessity of first seeking formal rescission of the earlier decree. In the case of Van Hulsteyn (6) Smith J. observed at p.653:
"If there is any ground for dissolving the marriage tie, apart from the question of malicious desertion, the existence of the order will not prevent either party taking advantage of that ground."
In the case of Ashton (4), where the plaintiff wife during the existence of a decree of judicial separation sought an order of restitution of conjugal rights, alternatively a decree of divorce on the ground of malicious desertion, Holmes J. observed at p.47:
"on principle it seems to me Chat when a decree of judicial separation has been ordered by the court, it' stands and it governs
the relationship between the spouses, until it falls away by
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reconciliation, or by cancellation by the Court, or by divorce (on grounds other than malicious desertion), or by death."
The learned Judge went on to observe at p.48:
"... the judicial decree of separation is operative and therefore the plaintiff cannot rely upon malicious desertion. It may
be that one remedy would be for her to sue for a divorce upon the grounds of adultery (of which there is some mention in the evidence),
but that claim does not arise on the present pleadings and I do not deal with it. The claim is dismissed".
In the present case the parties will no doubt act as best advised in the matter of a suit for divorce. As I said earlier, there can be no such decree on the basis of the present pleadings. It seems to me however that a rescission of the decree of judicial separation would at least have the effect of enlarging the basis on which a decree of divorce might be sought.
Rescission however cannot be granted to the husband as the guilty party in these proceedings. In this respect the dicta in the case of Van Zyl
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v Van Zyl (8) are relevant. In that case a notarial deed of separation had been made an order of the Court. The deed made no reference to the cause of estrangement, and it was not possible to judge therefrom whether there was or was not an innocent party. The wife subsequently made application for rescission of the order of judicial separation, on the basis that there was no longer any hope of reconciliation, and also to enable her to bring an action for divorce. De Waal J. observed at pp.131/132:
" It seems to me that where parties to a deed of separation, which has been made an order of Court, agree and consent to the order being set aside, the Court has no option but to concede to their request and is not concerned with the reasons which they give for having it set aside. In this case the applicant alleges as her ground for having the deed set aside that she wishes to institute action against her husband for divorce - on the ground, no doubt, of desertion. The Court is, however, not concerned with the reasons given by the parties. It is sufficient that they agree that the deed should be set aside, and for that reason I think the application should be granted.
But I refrain from expressing any opinion on the question raised by Counsel for the Appellant, viz., that, even in the absence of consent, the innocent party, if there be one, to the deed may at any time move to have a judicial order set aside on the ground that there is no hope of reconciliation. On the contrary, I think with submission, that the law as stated in the case of Van Hulsteyn v.
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Van Hulsteyn (6) is correctly expressed."
After that decision, rescission of a decree of judicial separation was obtained in a number of cases on the basis of the parties' consent: see e.g. Robinson v Robinson (9)at p.3,Ex parte Churin (10), Ex parte Diedericks (11), Prinsloo v Prinsloo (12) at p.50, and Kuhn v Karp (13) at p.834.
The facts of Van Zyl (8) are unusual, there being no apparent guilty party in that case: clearly then the consent of both parties was required. It seems to me however that what the Court is concerned with, is not the consent of both parties as such, as that is clearly contrary to all previous precedent, that is, previous to Van Zyl (8); what is required is the consent of the innocent party.
I must confess that I do not agree with the general statement by De Waal J. that the Court is not concerned with the parties' reasons for seeking to have the decree set aside. The Court is concerned with the parties' reasons for seeking a grant of the decree in the first case: see the very full discussion in the matter by Villiers J.P. in Van Hulsteyn (6)
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at pp.650/651. I respectfully observe that the observation by De Waal J. seems to be at variance with the learned Judge's adherence to the dicta in Van Hulsteyn (6), namely that the innocent party cannot obtain rescission simply on the basis that there is no longer any hope of reconciliation. I cannot see how the consent of the guilty party, no doubt similarly motivated, could affect the situation. In my judgment therefore it is the consent of the innocent party which is material.
In passing I observe that Krause J. in Robinson (9) left open the question whether, where there is a consent by both parties to setting aside the decree of judicial separation, coupled with a refusal by the defendant to return to the plaintiff, an order of rescission and restitution of conjugal rights could be sought in the one action. The learned Judge seemed to be of the opinion that the defendant in that case had "waived" the defence to malicious desertion, namely by consent to the rescission of the decree of judicial separation. That, as I see it is tantamount to the defendant treating the decree as a nullity, and the authorities are clear that, apart altogether from reconciliation, the parties cannot by their conduct affect the validity and force of the Court's decree. There cannot, as I see it, be any question of 'waiving' a defence to a non-existent matrimonial offence.
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Desertion simply cannot arise, whatever the state of mind of the offending party, until the decree is rescinded by the Court. As Williamson A.J. observed in Kuhn v Karp (13) at p.834:
"... a party, who, having obtained the setting aside of the decree, desires to sue for a divorce on the ground of malicious
desertion, must prove that after the decree was set aside, the other party refused or failed to restore conjugal rights. In other words, there must be a malicious desertion after the decree has been set aside;"
Those dicta were followed by Bresler J. in Cooke v Cooke (1) at p.27. Under section 4 of the Matrimonial Causes Act, 1973 of England, a judicially separated petitioner for divorce may rely on the respondent's desertion (not less than two years however) immediately preceding the presentation of the earlier petition for judicial separation, on the basis that such desertion is deemed immediately to precede the presentation of the petition for divorce. There is no such express provision in the law of Lesotho and it seems to me therefore that the above dicta of Williamson A.J. represent the law applicable to Lesotho. Where however judicially separated parties reconcile and resume cohabitation, and the decree of judicial separation lapses, it would seem to me that any desertion after such resumption of cohabitation could be pleaded in any subsequent action for divorce.
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To return to the facts of the present case, the wife has not opposed an action for a decree of divorce and must therefore be regarded as having consented thereto. While she may have consented to the dissolution of the marriage, she may nonetheless have never even contemplated the rescission of the decree of judicial separation, that is, other than by dissolution. There can be no rescission therefore without the express consent of the wife, and then again for reasons other than that there is no hope of reconciliation. In this respect, in order to avoid costs, I propose to adjourn the matter to a date to be fixed by the Registrar, and to meanwhile grant the parties liberty to apply by way of notice, when the pleadings might be amended if necessary, and I so order. The prayer for a decree of divorce must be dismissed however.
Delivered at Maseru this 4th day of November, 1988.
B.P. CULLINAN
CHIEF JUSTICE
