CIV/T/510/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

'MAMAKOPOI
MOKHANTSO Plaintiff

v

MOTLALEMTOA
MOKHANTSO Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K.Molai on the 30th day of September, 1988.

This is
an action in which plaintiff claims against the defendant:

1. A
   decree of divorce on grounds of Defendant's adultery;

   
   

2. Custody
   of the minor children of the marriage;

   
   

3. Maintenance
   of the minor children at the rate of M30 per month per child;

   
   

4. Division
   of the joined estate;

   
   

5. Forfeiture
   of benefits arising from the marriage;

   
   

6. Costs
   of suit:

   
   

7. Further
   and/or alternative relief.

   
   

ALTERNAVATIVELY

An order
directing Defendant to restore conjugal

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rights to
Plaintiff and failing compliance therewith:-

1. A
   decree of divorce on grounds of Defendant's desertion;

   
   

2. Custody
   of the minor children of the marriage;

   
   

3. Maintenance
   of the minor children at the rate of M30 per month per child;

   
   

4. Division
   of the joint estate;

   
   

5. Forfeiture
   of benefits arising from the marriage;

   
   

6. Costs
   of suit;

   
   

7. Further
   and/or alternative relief."

   
   

Defendant
intimated his intention to defend this action and duly filed his
plea.

It is
common cause from both the pleadings and the evidence that on 15th
August, 1969 the parties got married to each other by civil
rites in
community of property. The marriage still subsists. Three (3)
chil­dren were born of the marriage. They arc Makopoi
Mokhantac a
girl born on 24th December, 1969, Moleko Mokhantso, a boy born on
28th March, 1972 and 'Mankemele Mokhantso. a girl
born on 6th
February, 1974.

Following
their marriage in 1969 the parties lived together first in Maseru and
then in Quthing. In 1975 the Plaintiff, who is a
school teacher was
transferred from Quthing to another school at Sebapala. Defendant

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who is a
Prison Officer remained at Quthing but was later transferred to
Mohale's Hoek.

It is
common cause that whilst the parties were living apart 'Defendant
committed adultery with one Lineo Makotoko who consequently
gave
birth to a child. Plaintiff then decided to Join Defendant in
Mohale's Hoek and put an end to their separate lives. She sought
and
obtained transfer from Sebapala to one of the schools in Mohale's
Hoek where they were able to live together as husband and
wife.

That
being so, there can be no doubt that the adultery which Defendant had
admittedly committed with Lineo Makotoko was condoned
by the
Plaintiff. Indeed during the pre-trial conference Plaintiff
abandoned, and rightly so in my opinion, Defendant's adultery
as a
ground on which she based her claim for divorce.

It is
common cause that at the material time the monthly salaries of
Plaintiff and Defendant were M140 and M160, respectively. Their

incomes were supplimented by the proceeds of a butchery and milk cows
which they owned at Quthing. 8y mutual arrangement the salary
of the
Plaintiff was to be used for buying the household requirements whilst
that of the Defendant. supplemented by the proceeds
of the butchery
and the milk cows, was to be devoted for the building of the parties'
matrimonial house at Quthing. When she

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received
her monthly salary Plaintiff was in the habit of handing it over to
the Defendant who would then decide with the Plaintiff
on what
household require­ments were to he purchased. However on one
occasion in 1983, Plaintiff left Mohale's Hoek for Quthinq
where, as
usual, she was to hand her monthly salary to the Defendant. As a
result of a quarrel between them, Defen­dant became
moody and
refused to accept the money. Plaintiff had no alternative but to
return with it to Mohale's Hoek.

According
to Plaintiff Defendant has, since 1971, subjected her to a series of
assaults and humiliations which intensified after
his adultery with
Lineo Makotoko. For instance, he assaulted her at Quthing in 1971 and
1973 for no given reasons. In 1977 he assaulted
her for having
remonstrated with her son. .In 1979 he assaulted her with a belt for
a minor quarrel. One day in 1981 defendant
accused her of wearing
long dresses like pros-tltutes. He then tore the dress with a knife
whilst she was wearing it in a public
place and in the compnay of
other teachers. On another day in 1982 she came home late after
visiting their sickly child at a local
hospital in Mohale's Hoek.
Defendant then started assaulting her by hitting her with fists and
kicking her with boots.

The
evidence of the Plaintiff that Defendant was in the habit of
assaulting her is, in a way, confir­med by Gilbert Phororo,
an
assistant Prison Officer who was the parties's next door neighbour in
Mohale's Hoek.

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He told
the court that in one of the couple's fights Plaintiff had to escape
from their house through the window. In 1961 Plaintiff
was chased by
the defendant when she ran to his house for help. After he had
pleaded with him to stop assaulting her Defendant
and Plaintiff left
for their house. As they were going back home Phororo noticed
Defendant hitting Plaintiff a blow on the face
with his open hand.
The evidence of Phororo in this regard was not challenged under
cross-examination and there is, therefore,
no good reason why he
should not be believed.

In June
1983 the Defendant who had then been transferred from Mohale's Hoek
to Quthing came to the place where Plaintiff was staying
in Mohale's
Hoek and demanded money from her. According to her, Plaintiff had
recently been paid her provident fund. She used the
money to purchase
furniture for their newly built house in Quthing. She explained this
to the Defendant and showed him the new
furniture. Defendant's
gratitude was to take an axe and chop the new furniture into pieces.
He threw the pieces into a donga before
ordering the Plaintiff to get
into a van which he drove to Quthing. Plaintiff told the court that
that was the last strew. She
felt it was intolerable to live with a
man who behaved in the manner the defendant did. Consequently she
decided to sue him as
aforesaid.

It may
perhaps be convenient to mention at this stage that after the
Plaintiff had closed her case and

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during
the hearing of the defence case an application was made on behalf of
the defendant to amend his plea to the effect that since
February,
1983 Plaintiff had been committing adultery with a certain Sidwell
Kabi who is incidentally now deceased. She had neither
disclosed this
adultery nor had she asked the court to condone it. Her claim should,
therefore, be dismissed on the principle that
people who approach
this court must do so with clean hands.

Although
the application was opposed I granted it and the plea was accordingly
amended,, In support of his allegation that Plaintiff
had committed
adultery with Sidwell Kabi Defendant called two witnesses viz.
Batebang Makakane and Samson Bereng both of whom are
prison officers

According
to Makakane after Defendant had been transferred from Mohale's Hoek
to Quthing he some times saw Plaintiff at the house
of Sidwell Kabi
wearing nightdresses and washing dishes in the kitchen at about 6
a.m. At other times he saw her cooking at Kabi's
house in the
evening, He, however, did not have a personal knowledge that there
was a love affair between Kabi and the Plaintiff.
He was in fact
merely asked by the Defe­ndant to assist him in this case to
prove that Plaintiff had committed adultery with
Kabi.

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In his
evidence Bereng told the court that when Defendant was transferred
from Mohale's Hoek to Quthing Plaintiff and her sickly
child stayed
at his house per arrangement with the Defendant. He categorically
denied the evidence of Makakane that Plaintiff could
have been seen
at Kabi's place at 6 a.m. because in the evening he was the one who
always locked the door of the house in which
he lived with the
Plaintiff and the other in­mates. He kept the key of the main
door with him until in the' following morning
when Plaintiff who was
a school teacher would be preparing to go to her work.

He
conceeded, however, that there were evenings when Plaintiff would say
she was going to do her cooking at Kabi's place and she
would then
return with some cooked fund. Plaintiff's explanation for going to
cook at Kabi's place was that Kabi's gas stove had
two cookers and
she was able to make her cooking faster than at Bereng's house where
the gas stove hod only one cooker. Bereng
also told the court that
when he was on night shift with Kabi Plaintiff used to bring them
food at work at about 10 p.m. He did
not, however, know if when he
was not on night shift with Kabi Plaintiff, brought food for the
latter at night. He was in fact
jealous of the Plaintiff and had to
tell her to find accommodation elsewhere.

Thereafter
Kabi used to tell him that he was going to the house where the
Plaintiff was staying. That made him suspicious that Plaintiff
was
having a love affair with Kabi. He, however, had no personal
knowledge of the love affair between Kabi and the Plaintiff.

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In my
view the suspicions of these two witnesses that Plaintiff had a love
affair with Kabi are baseless and no conclusive evidence
that she
ever committed. adultery with Sidwell Kabi. In fact on second
thoughts I feel that the application for amendment of the
plea was
just a misuse of the court proceess if not a waste of the court's
time. It should never have been allowed.

Defendant
admits that he had on occasion quarrelled with the Plaintiff when he
assaulted her but contends that the assaults were
just a moderate
punish­ment not intended to end their marriage. He concedes,
however, that in June, 1983, he drove a van to
Plaintiff s place in
Mohale's Hoek where he chopped into pieces the furniture which
Plaintiff had recently bought. His reasons
for so doing was because
he had noticed men's clothes among the clothes that Plaintiff was
washing, a fact which is, however, denied
by the Plaintiff.

Well, in
the first place I am not convinced that where a husband assault his
wife by hitting her with fists, kicking her with boots,
chasing her
around so that she escapes from the house through the window and
seeks help from neighbours'houses and tearing her
dresses with a
knife in public that can bo discribed as just a moderate punishment.
In any event a wife is not a minor child to
whom Defendant is
entitled to administer a moderate punishment. If he thinks she has
committed a wrong the defendant must sit down
with his wife and
discuss their differences like grown ups. If he starts

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boxing
and kicking his wife in the manner he admittedly did the Defendant
rendered it intolerable, if not dan­gerous, for the
Plaintiff to
live with him. He had, in my view committed, against the Plaintiff, a
constructive desertion which is a matrimonial
wrong. That being so,
the Plaintiff is entitled to the relief she is seeking for in the
alternative prayer of her claim.

In the
result, I come to the conclusion that Plaintiff has, on a balance of
probabilities, successfully proved a ground for restitution
of
conjugal rights against the Defendant who is accordingly ordered to
restore conjugal, rights to Plaintiff on or before 14th
October, 1988
failing compliance therewith to show cause on 26th October, 1988 why
Plaintiff shall not be awarded a final decree
of divorce together
with the ancillary prayers

B.K.
MOLAI

JUDGE

30th
September, 1988,

For
Plaintiff : Dr. Tsotsi,

For
Defendant : Mr. Maqutu.