CIV\T\58186

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REV.
PHINEAS L. PITSO Plaintiff

V

LEFASO
FOULO Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 2nd day of March,1990.

In this
action the plaintiff sues the defendant for :

1. Payment
   of M100,000 being damages suffered by the plaintiff as a result of
   wrongful and unlawful conduct of the defendant habour
   ring the
   plaintiff's wife.

   
   

2. Interest
   thereon at the rate of 22% a

   
   

3. Costs
   of suit, and

   
   

4. Further
   and/or alternative relief.

   
   

In his
declaration the plaintiff has stated that on 7th June 1984, his wife
Mrs 'Mamoeti Pitso having been induced by the defendant
left the
common home where she and her husband lived and went to stay with the
defendant with whom she has to date been staying.
He further
complains that the defendant prevents the

2

plaintiff
from seeing the plaintiff's wife.

The
plaintiff also states that the defendant was at all material times
aware that the plaintiff's wife had left the plaintiff without
the
plaintiff's consent and against his will, yet despite being so aware
as indeed the plaintiff even brought to the defendant's
notice both
orally and by letter dated 4th June 1986 that the plaintiff
disapproves of the liaison existing between his wife and
the
defendant, the defendant took no heed of the plaintiff's admonitions.

It is as
a result of loss of affection, companion­ship and consortium of
his wife that the plaintiff claims that he has suffered
damages in
the sum of M100,000 occasioned by the defendant's wrongful conduct.
The plaintiff maintains that this amount of money
would suffice to
compensate him for the losses he has outlined.

As shown
in the defendant's request for further particulars the main thrust of
the defendant's case centres on the plaintiff proving
the allegation
by the plaintiff that the defendant was aware that the plaintiff's
wife had left the plaintiff.

The first
witness for the plaintiff was P.W.1 Paulina 'Matsotleho Foulo who
testified that the defendant is her husband. She and
the defendant
are not living together because on 22nd August 1986 a decree of
Judicial Separation was granted following her plea
to the High Court
against the present defendant.

It turned
out that P.W.1's action against the present defendant was based on
the defendant's illicit liaison with the present plaintiff's
wife.

P.W.1
stated that the relations between her and her husband started souring
in 1977 when the plaintiff and his wife Mrs Pitso came
to live in
Semonkong in 1977.

3

She later
gave the year as 1985.

P.W.1
brought to the notice of the plaintiff and his fellow priests the
unsavoury goings-on between the plaintiff's wife and the
defendant.
P.W.1 testified that after the plaintiff hart read the letter written
to him by P.W.1 and heard the accompanying oral
complaint about the
plaintiff's wife's conduct towards P.W.1's marriage the plaintiff
cried. By reporting this incident to the
plaintiff P.W.1 had hoped
that the plaintiff would reprimand his wife. However because no
change occurred even after the complaint
to the plaintiff and his
fellow priests P.W.1 took the matter up with her chief.

Meantime
P.W.1 met the plaintiff and undertook to take him and one Rev.
Morojele to the place where the plaintiff's wife was living
with
P.W.1's husband at Makhaleng. The trio went on board a vehicle
belonging to the landlord who had rented his business premises
to the
defendant at Makhaleng.

On
arrival at Makhaleng P.W.1 showed Rev. Morojele and the plaintiff a
house in Mrs Linotsi Sehlabo's yard where P.W.I once found
the
defendant and Mr Pitso's wife living virtually as husband and wife.

The
defendant recognised these three people when they arrived at
Makhaleng. P.W.1 did not greet him but the two priests did. When
Mrs
Sehlabo took the two priests to some place where they would put up
for the night P.W.1 went to hide somewhere. It was when
she had
remained thus concealed that she saw the plaintiff's wife going on
board the defendant's vehicle and leaving along with
the defendant in
the direction P.W.1 and her company had come along. The plaintiff's
wife is said to have come out of the same
house where she and the
defendant were once observed to be living in by P.W.1.

4

At about
6 am: the following day the defendant was seen by P.W.1 arriving
alone in his vehicle. On his arrival a meeting was held
chaired by
Sera Sehlabo the chief's representative.

The
plaintiff was given the floor. He briefly stated that he was looking
for his wife and was told by P.W.1 where to find her. He
further
stated that he had seen the defendant spirit away his wife the
previous day in the defendant's vehicle.

Thereupon
the defendant asked the plaintiff if he saw him carrying his wife on
his back. The defendant is said to have been very
angry when he
uttered these words including a series of swear words and abusive
utterances such as the following:

"You Lehlohonolo you will suck your mother. It seems you never
did enough sucking of her."

Referring
to P.W.1 the defendant is said to have said to the plaintiff

"are you running around with this prostitute of a woman."

P.W.1
informed the court that when she and her company went past the
defendant the latter took out a firearm from the back-rest
of his
vehicle's seat. Thereafter he drove past the vehicle in which P.W.1
and others were driving. Having overtaken P.W.1's vehicle
the
defendant stopped his vehicle at a stream lying ahead and lifted its
bonnet making a slow of tinkering at the engine.

It seems
to me that although the defendant did nothing with the firearm his
mind was bent on making sure that the plaintiff and
his company had
seen it. The purpose for this can be none other than to inspire them
with fear.

P.W.1 and
the two priests laid a charge against the defendant when they arrived
at Roma Police Station.

5

In his
evidence P.W.2 the plaintiff said that he first knew the defendant in
1977 when the latter's vehicle was commissioned by
the Church to
convey the plaintiff's baggage to Phororong where the plaintiff was
to assume his duties as a priest.

Ex."C"
is a Marriage Certificate showing that the plaintiff and his wife
were married by Christian rites in 1965. The
plaintiff told the court
that his marriage was happy from 1965 to 1983. Since 7th June 1984 he
and his wife have not been living
together.

In 1983
the plaintiff met P.W.1 who gave him a letter saying that the
defendant had a love affair with the plaintiff's wife. This
letter
has since been burnt by the plaintiff's wife after reading it and
threatening to pick up a quarrel with the defendant's
wife wherever
they would meet.

This
letter had been copied to the chief and the Semonkong Police. The
chief duly called the plaintiff and the plaintiff's wife
as well as
the defendant ant! the defendant's wife. The defendant did not come.
The meeting was scheduled for the next day but
both the defendant and
his wife failed to turn up. However the chief ordered the plaintiff's
wife never to go back to the defendant.

The
plaintiff's wife was much hurt that he had given the information to
her. She threatened to harm the defendant's wife. The plaintiff

reported the matter to Church authorities. Consequently he was
transferred from Semonkong or Phororong to T.Y. which is near to
his
parents' and his wife's parents' respective homes. The reason for
this, it is stated, was to ensure that the respective parents
should
watch over the conduct of the plaintiff and his wife.

The
plaintiff came to T.Y. in February 1984. He

6

came with
some of the children leaving his wife who said she was not a priest
but a teacher. She thus remained with some of the
children of the
marriage without the plaintiff's consent. However after some pressure
by the school management the plaintiff's
wife joined him at T.Y. in
March 1984.

The
plaintiff said that he was hurt when his wife remained behind for he
felt that his congregation at T.Y. would regard the matter
as
unorthodox and abnormal.

After
staying together for two months the plaintiff's wife disappeared. It
was as late as 4th January 1985 that the plaintiff learnt
from P.W.1
that she had found his wife at Makhaleng at the house where P.W.1's
husband lives.

The
following day the plaintiff left in the company of Rev. Morojele and
the defendant's wife for Makhaleng with a view to bringing
the
plaintiff's wife back to him. The party appealed to the chief to help
but because of the lateness of the hour the chief under­took
to
hear them out the following day. The plaintiff and Rev. Morojele were
uneasy about the place where they were accommodated at
Makhaleng
because of its proximity to the place where the defendant and the
plaintiff's wife were living together.

They
decided to go and see the chief about alter­native accommodation
for the night. The chief came back with them to the store.
Before
reaching it they saw the defendant conveying the plaintiff's wife in
a van driven from the premises. The plaintiff recognised
his wife and
accordingly informed the chief. The chief and the priests tried to
stop the defendant; but he didn't.

The
following day a meeting was held and the plaintiff asked the
defendant to give him his wife. Thereupon the defendant said

7

"Do I go about carrying your wife on my back. This prostitute
(meaning his own wife P.W.I) goes to you at T.Y. saying I have
taken
your wife. I will send you back to your mother to suck her for I can
see you got weaned prematu­rely "

The
defendant is said to have been very angry when uttering these words.

The
plaintiff asked the chief to make him a letter of introduction to
higher authorities. The chief obliged.

Then the
defendant went to his vehicle and took out something which the
plaintiff later recognised to be a pistol.

The
plaintiff and his. party went on board the public transport. They
were followed by the defendant's van which stopped behind
the public
transport which had stopped to enable Rev. Morojele to climb down to
get a rubber stamp to have the letter duly rubber-stamped
at, the
chief's office.

The
defendant went past near where the plaintiff was standing and headed
for the place where Rev. Morojele was to get the letter

rubber-stamped. When the bus carrying the plaintiff and his party
resumed the journey the defendant came following in his van and
at
some stage overtook the bus only to atop at some distance ahead and
open the bonnet of the van and keep peering underneath it.

The
plaintiff's attempts at resolving the differenced between him and his
wife were finally thwarted as stated above. To date he
and she are
not living together.

The
plaintiff complains that the defendant did not; request his wife from
him when she got employed by the defendant. He also stated
that the
defendant was not truthful in denying that he and the plaintiff's
wife live together as man and wife.

8

The
plaintiff confirmed that in terms of CIV/T/667/86 'Mamoeti Pitso vs
Lehlohonolo Pitso the plaintiff was his wife praying for
condonation
of her adultery and decree of divorce on grounds of the then
defendant's adultery. Although the plaintiff's wife prayed
for
condonation of her adultery she did not say with whom she had
committed that adultery. But evidence shows that at the time
she was
living with the defendant Lefaso Foulo. The plaintiff denied that he
had done anything to cause his wife to be estranged
from him.

Under
cross-examination the plaintiff conceded that he had earlier
instituted an action number CIV/T/717/86 against his wife and
the
defendant from whom he had claimed M15,000.

The
plaintiff said that he withdrew the claim for M15,000 because it was
too little when compared with the M100,000 which he said
he claimed
later.

Dot
strangely the claim for a lesser amount was made in summons issued on
18th November 1986 while that for a greater amount was
issued on 15th
August 1986.

The
question put by the defendant's counsel is logical that

"on maturer reflection the plaintiff settled for a lesser amount
of M15,000 - ?

To which the plaintiff replied

"I had thought so previously because of the confusion that I had
that time."

The
evidence of P.W.3 Rev. James C . Morojele is important in the sense
that it provides a background to the problems that beset
the
plaintiff's marriage. He testified that it appeared to him that the
plaintiff's wife was responsible for the disharmony that
bedevilled
the marriage. P.W.3 through his mission as a marriage counsellor
learnt that the defendant was the man who fouled the
harmonious
marital relationship that otherwise

9

existed
between the plaintiff find his wife before the plaintiff and his wife
went to Phororong.

In the
correspondence filed before court it appears that the plaintiff at
some stage wrote to the Executive Committee of the church
thanking
the Committee for harrowing him from the servitude to drunkenness.
P.W.3 said that the rehabilitation Centre to which
the plaintiff was
sent did not receive him as an inmate far rehabilitation but as a
trainee whose acquired training would later
be utilised in the out
posts where he was to go at Phororong which is in the mountains.

With
respect I cannot see how a trainee would write a letter thanking the
Executive Committed for sending him without his consent
to a place
which freed him from drunkenness if in fact he was not a slave to the
bonds of that habit. Questions put to P.W.3 on
behalf of the
defendant suggest that the plaintiff was in dire need of
rehabilitation. His letter at the end of the rehabilitation
spell
corroborates the defendant's counsel's contention.

After an
application for absolution from the instance was turned down the
defendant gave evidence. He testified that he knew the
plaintiff a
wife. He said she is his employee at his business at Ha Simione. She
started working there in January, 1985. She stayed
in rented
quarters. These quarters did not belong to the defendant. Although he
too was living in rented quarters he did not live
together with the
plaintiff's wife.

The
defendant said that he heard that the plaintiff, P.W.1 and P.W.3 went
to Ha Simione but he saw only the plaintiff.

When he
came there the plaintiff just greeted the defendant and left saying
nothing. He never asked where his wife was. He denies
that the
plaintiff ever visited his business premises at Ha Simione.

10

He denied
ever meeting or knowing the plaintiff's wife between June 1984 and
January 1985. He said he didn't know why the plaintiff's
wife left
her husband. He said he never prevented her going to her husband
after her taking employment with him in January 1985.

He
conceded that 'Mamoeti stays in a place which is so close to where he
is staying as to be regarded as the same place. He denied
that he
prevented the plaintiff from seeing his wife. He denied that he is
habouring the plaintiff's wife. He said that he never
saw a letter in
June 1986 saying that plaintiff did not want his wife working for the
defendant.

Under
cross examination the defendant said he transferred only the
plaintiff's personal effects to Semonkong in the year he can't

remember. At that time he had been approached by the church to convey
those things. That is why he knew neither the plaintiff nor
his wife.

Asked if
this was not in 1977 he said the year was not in issue. He was
insistent that he loaded and off­loaded the plaintiff's
goods in
his absence.

Confronted
with the question that evidence was led and not denied that he
delivered the plaintiff's family on transfer to Semonkong
he said
that such evidence was not true even though witnesses who gave it
were not challenged in that regard.

Asked by
court if he heard such evidence being led he said no. He however
conceded that when something untruth­ful about him
is said he
becomes alert.

When told
by counsel for the plaintiff that the allegation was not denied
because it was true he said he was denying it at the
stage he was
giving his evidence on his own behalf.

11

The
cross-examination proceeded as follows:-

"You heard the plaintiff say he secured you to transfer his
laggage and family - ?

I heard him say I should come and collect his goods from Maseru and
by then he was already at Semonkong.

He further said you took both his family and his laggage to Semonkong
- ?

I never heard him say he hired me to fetch his family.

Court:-

Did you hear him say so ?

No.

Why didn't you hear him - ?

He was not saying what I did. I was not interested in what I never
did.

C.C –
If somebody lies about you you ignore it. But did

your counsel challenge the veracity of the witnesses's version that
you delivered the plaintiff's baggage and family -?

I did not hear him.

I put it to you it was not denied under cross-examination because it
was true that you conveyed his baggage and family to Semonkong
- ?

That's your opinion. Not mine.

You are avoiding this question for you wish to establish that you did
not know Pitso and his family from as far back as 1977 -
?

That's your statement; not mines.

You said before that you were employed by the Church and not by Pitso
but immediately after­wards you said you met Pitso at
Semonkong
who said you should go and fetch his baggage. Which is which - ?

He said the church had asked him to look for transport.

What year did he approach you to ask you to fetch

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his baggage - ?

1943.

So you began to know him way back in 1943 - ?

It was in 1983.

Not 1943 - ?

No.

It is a fact that he was transferred in 1977 -?

I am not the one who transfers priests."

The
plaintiff's witnesses described the defendant as a man of bad temper
who was off-hand and ready to fight. I am satisfied by
his brashness
before this Court that he has not only those characteristics but his
demeanor in this Court has been near contemptuous
while giving
evidence under cross-examination.

The
defendant denies that he is in love with the plaintiff's wife. He
denies that he fell in love with her at the time her husband
was
transferred to Phororong.

The
defendant testified that the plaintiff's wife was made aware of the
instant proceedings by him. He said she is still under his

employment. When told that the plaintiff is still legally married to
his wife the defendant said he became aware when the plaintiff

exhibited the marriage certificate in Court. The plain-tiff's wife is
said to have come to attend this trial not at her husband's
behest
but because the defendant warned her against involving him in
trouble.

The
plaintiff's counsel proceeded to cross-examine the defendant and the
defendant in turn replied as follows:

"Evidence says the plaintiff, your wife and Rev. Morojele went
to Ha Simione Makhaleng looking for the plaintiff's wife -
?

I heard that evidence.

13

In your evidence in chief you said you only saw Rev. Pitso ....?

Yes.

It was never put to plaintiff or his witnesses that you would come to
say that you did not see your wife and Rev. Morojele - ?

I never saw my wife and Rev. Morojele. I only saw Rev. Pitso.

It was never challenged that they went there the three of them - ?

I don't understand this for it is only today that I am giving
evidence and I am denying it today.

So you admit that before you gave evidence today these witnesses were
not asked about these incidents - ?

I don't deny that they were asked questions but I am saying today I
deny that.

Are you saying that the plaintiff said nothing at the meeting held
concerning his wife - ?

There was no such meeting as this is confirmed by Rev. Pitso saying
he never said a thing to me."

I have no
doubt that in denying obvious events which took place the defendant
has a lot to hide. His attitude accounts for the milk
in the
cocoa-nut.

The
defendant called in aid the evidence of D.W.2 'Mamatseliso Mthobeni
who is the plaintiff's wife's sister. She testified that
she was sent
by the head of her maiden family to accompany the plaintiff's wife to
her in-laws but the plaintiff's mother drove
them away hurling a lot
of abuse at them into the bargain. She said that the plaintiff and
his brother also chased them away with
sticks and sjamboks. But it
was never put to the plaintiff that he chased his wife and her sister
away with sticks and sjamboks.
All that was said is that because of
the noise the plaintiff's mother made accusing the plaintiff's wife
and her sister of having
shortly insulted her the plaintiff failed to
take

14

advantage
of the wife's return.

In
argument Mr Matsau referred me to R.L.T. Thabane

vs A.
Thabane and T. Ntsukunyane 1971-73 LL.R at 145 where it is said

"Where a spouse enters into an illicit association with another
person who is fully aware of his or her marital status, that
spouse's
husband or wife may be entitled to damages for loss of consortium and
for contumelia. However no damages are recoverable
for loss of
consortium where the spouses have been living apart for some time
before the association is formed, and the recovery
of damages for
contumelia will depend upon such matters as the effect of the
association on the plaintiff's standing in the community
and whether
any insult was uttered in public or in private."

In Gower
vs Killian 1977(2) SA LR. at 393 the head note indicates that

"In an action for damages for alienation of affections and for
adultery, it appears from the evidence that plaintiff's wife
had met
the defendant at work, where they had fallen in love, and that they
had been together in Johannesburg, working on a stall
their employer
had at the Rand Easter Show. Defendant admitted committing adultery
with plaintiff's wife on a number of occasions.
The evidence further
revealed that, at a meeting between plaintiff, defendant, plaintiff's
wife and his mother-in-law, the defendant
had suggested a divorce and
said that he would pay the costs thereof as he was the 'guilty party
responsible for breaking up your
home.'"

It was
held

1. "that
   the fact that plaintiff's wife left

   
   

after being in the defendant's company at work and in Johannesburg
was not enough. It had to be shown that the defendant coaxed
the
plaintiff's wife away from him, that he talked her over and persuaded
her to leave him.

2. "Further,
   that the defendant's admission that he

   
   

was the 'guilty party' responsible for breaking up the plaintiff's
home was not enough: such evidence was equivocal and did

15

not amount to an admission by the defendant that he had actively
enticed the plaintiff's wife away from him and had seduced her

affection for her husband.

3. Accordingly,
   that the plaintiff had failed

   
   

to discharge the onus in so far as the alienation of affection was
concerned, but in respect of adultery the defendant having admitted

such adultery, that the plaintiff should be awarded M1,500 damages."

Relying
on the above authorities the defendant's counsel urged on me to
dismiss the plaintiff's claims.

But in
The South African Law of Persons and Family Law Barnard et al say at
page 166

"When a third person infringes the consortium by adultery,
enticement or harbouring, a claim for satisfaction against the
third
party can be instituted on the grounds of injuria."

I have no
doubt that the defendant infringed the plaintiff's consortium by
harbouring. The defendant actually prevents the plaintiff
from
contacting his wife by spiriting her away in his own van. I have no
doubt that if the defendant had let the plaintiff meet
his wife, or
if he was prudent enough to heed the plaintiff's complaint that he
was dissatisfied with his wife living with him
such an act would have
gone a long way towards mitigating damages claimed.

It
appears that the defendant felt that it was not in his interests to
oblige the plaintiff in his unrelenting pleas. His whole
attitude was
like that of a ferocious beast from whose mouth nobody could dare
snatch a meaty bone without running a serious risk
to his own life.

For
injuria occasioned by the harbouring of his wife the plaintiff is
awarded M11,000. Because the plain tiff's rehabilitation restored

only a fraction of the esteem he was held in by the community and his
congre­gation for contumelia suffered in respect of further

16

degrading
his standing in his community as a priest the plaintiff is awarded
M4,000 only plus costs of suit.

JUDGE.

2nd
March, 1990.

For
Plaintiff : Mr Mphalane

For
Defendant : Mr Matsau.