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CIV/T/14/91

IN THE
HIGH COURT OF LESOTHO

In the
matter between

PASEKA
JAFTHA NAMANE Plaintiff

and
'MAMORONGOE 'MANGOAJANE NAMANE Defendant

JUDGMENT

Delivered
by the Honourable Mr Justice T Monaoathi Acting Judge on the 3rd day
of March 1994

In this
claim the Plaintiff asks for

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

   
   

2. Custody
   of the two minor children,

   
   

3. Forfeiture
   of the benefits arising out of the marriage,

   
   

4. Further
   and/or alternative relief

   
   

2

This
action was defended

On the
date of hearing three witnesses were led namely the Plaintiff, the
Defendant and Defendant's father. The evidence that took
the whole
day, This was not only wasteful of the Court's time but did not just
demonstrate a correct approach to matrimonial matter
where a marriage
is but an empty shell It is the duty of a litigants to cut short
unduly prolix proceedings and to bring litigation
to a speedy
completion It is equally in the interest of the parties and of the
state to expedite litigation Courts ought to guard
against anything
tending to delay proceedings I need to quote the whole paragraph 6 of
the Plaintiff's declaration and the reply
thereto in paragraph 3 of
the Defendant's plea to show how unwholesome it is sometime for
practitioners not to strive to settle
deserving matters

PLAINTIFF'S
DECLARATION "6

With a
settled mind to terminated the said marriage, Defendant has without
reasonable cause done the following wrongful and unlawful
acts to wit

1. Some
   time in 1983 Defendant committed adultery with one MOKEBE, whose
   further particulars are to Plaintiff unknown as a result
   of which a
   child was born, and Plaintiff condoned the said adultery;

   
   

2. On
   or around December, 1963, Defendant left the

   
   

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matrimonial home without reasonable cause, and has despite numerous
requests refused to come back to-date,

3. During
   this period of desertion, Defendant committed adultery with a man to
   the Plaintiff unknown as a result of which another
   child was born,
   and the said adultery was not condoned by Plaintiff," (my
   underlining)

   
   

DEFENDANT'S
PLEA

"3.

AD PARA 6
THEREOF

Contents
of this paragraph are denied and Plaintiff is put to the proof
thereof, in as much as,

1. The
   said Mokebe is not known to the Defendant and the so called
   adulterine child has not been named, and it is not stated what

   happened to it,

   
   

2. In
   December, 1983, the Defendant left the matrimonial homembecause
   Plaintiff was not maintaining her and the children, instead

   Plaintiff continually assaulted the Defendant whenever he was from
   visiting his concubine 'MANTSOTISENG LETSIE with whom Plaintiff
   is
   now cohabiting and Defendant has not condoned that,

   
   

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3. On
   the 23rd day of June, 1987 Defendant gave birth to an illegitimate
   child named NEO and prays the Honourable Court to condone
   it is as
   much as Plaintiff's hands are not clean." (my underlining)

   
   

It became
abundantly clear that the Defendant ought to have adopted a different
attitude when it came to hearing of evidence to
rebut the evidence of
the Plaintiff But that was not to happen

Plaintiff
was not only very convincing on the alleged adultery of the child
born on the 22nd June 1987, I definitely formed an opinion
that this
other child NGOAJANE was most probably adulterine It did not matter
to me how much Plaintiff suggested that the child
belonged to a
marriage of "his father's cattle " It is to be noted that
it is this child, which when Defendant was pregnant
with, a lover of
the Defendant wrote a letter to Defendant, inquiring whether
Plaintiff had not been aware or had not suspected
the child to be not
his child (Plaintiff's), but was fathered by that man, (MOKEBE)
Indeed the letter was not produced in Court
A family meeting was
called following the incident The parties agreed to reconcile,
Plaintiff says he still regarded the child
as adulterine Anyway I did
regard the adultery as having been condoned. I left the child in
Defendant's custody for other good
reasons As said

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before
that the child NEO was adulterine this was common cause Plaintiff did
not have much to do to proof his case The Defendant's
father only
came to seek to prove that the Plaintiff was a well-to-do man That he
had inherited a large estate with small and large
stock I suppose he
was called in order to influence the Court's decision of the value of
the estate to be divided I was not persuaded.

Since the
Defendant's desertion the two of the minor children of the marriage
namely MORONGOE, a girl born on the 22nd July 1978
and MOKONE, a boy
born on the 20th May, 1981 have been in the custody of the Plaintiff
Defendant only saw them once at school and
nowhere else I believed
the Plaintiff that the children were well cared for by their father I
had no credible evidence or reason
to urge me to find otherwise. This
Court as an upper guardian of the minor children was satisfied that
the custody of the children
had for good reason to be left with their
father the Plaintiff

That it
is trite that adultery is a ground for divorce in this country was
not questioned It was on this basis and as found proved
above that I
made the following order and informed Mr Nathane for the Plaintiff
and Mr. Mathafeng for Defendant that reasons therefore
would follow

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1. The
   decree of divorce was granted on the ground of Defendant's adultery

   
   

2. Forfeiture
   of the benefits of the marriage was ordered in favour of the
   Plaintiff

   
   

3. Custody
   of the minor children MOROMGOE AND MOKONE was granted to Plaintiff,

   
   

4. Custody
   of the minor child NGOAJANE was granted to Defendant

   
   

T
MONAPATHI

ACTING
JUDGE

April,
1994

For the
Plaintiff Mr Nathane

For the
Defendant Mr Mathafeng