C. of A.
(CIV) No. 4 of 1979

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of:

JENNIFER
MEGAN BINNS Appellant

V

ROGER
BINNS Respondent

HELD AT
MASERU

CORAM:

MAISELS,
P.

DENDY
YOUNG, A.J.A.

SCHUTZ,
A.J.A.

JUDGMENT

DENDY
YOUNG, A.J.A.

1. The
   Pleadings

   
   

By her
amended declaration appellant ('the wife') claimed against the
respondent ('husband') inter alia a decree of divorce on the
ground
of the husband's adultery alternatively an order for restitution of
conjugal rights failing which a decree of divorce on
the ground of
the husband's desertion. There was also a prayer for an order
condoning the wife's own adultery.

The
husband was in default but was present in court whilst the wife was
giving evidence. He did not attempt to intervene nor was
he called as
a witness by the wife.

2

The
action failed on three grounds

1. That
   it was not proved that the husband was domiciled within the
   jurisdiction of the court;

   
   

2. That
   the husband's alleged adultery had not been established;

   
   

3. That
   in the circumstances of the case the wife was not entitled to a
   restitution order.

   
   

The
appeal is against those findings by the learned Judge a quo.

2. The
Evidence

In a
skeleton form the evidence is as follows The wife is a housewife
living in Maseru, the husband is currently the director of
the
Outward Bound Association, Thaba Phatsoa in the district of Leribe in
the Kingdom of Lesotho, Husband and wife are British
subjects. They
were married to each other in 1970 in England and there is one child
of the marriage. In May 1971 the husband took
employment with the
Outward Bound Association in Kenya where he and the wife lived in a
very isolated area. The marriage was not
happy and in December 1972
the wife returned to her parents in England. In September 1973 the
husband also returned to England
and cohabitation was resumed there.
In November 1975 the husband took up his present employment in
Lesotho. The wife accompanied
him. Soon the marriage was in
difficulties again. Communication between husband and wife
deteriorated. The husband did not talk
to the wife and no longer
wanted marital association with her. The husband spent very little
time at home and was not interested
in family life. By March 1979 the
husband ceased

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communicating
with the wife altogether. In April the husband withheld conjugal
rights from the wife. On the 30th of May the wife
went to Maseru to
consult a priest in an effort to save the marriage. She returned home
at about 10.30 p.m. She found the husband
locked in a room with
someone who escaped through the window. During the following few days
the husband admitted an adulterous
association with the female
domestic servant. On June 13th the wife withdrew from cohabitation
and left the matrimonial home. She
returned to England, She came back
to Lesotho on the 27th of August and took up residence with one
Michael Taylor in Maseru and
she has since been living with him as
his wife. The wife and Taylor intend to marry as soon as the wife is
free to do so. Taylor
also provides a happy home for the child.
According to the wife this relationship with Taylor had nothing to do
with the breakdown
of the marriage.

In her
declaration as originally framed the wife put her case solely on
constructive desertion and there was no allegation of adultery
on the
part of the husband. Nor did the wife disclose in her pleading that
she had been living in adultery with Taylor. On the
27th of September
1979 the case was set down for trial on the 8th October 1979 on the
undefended list. It seems that certain informa­tion
came to the
attention of the trial Judge. He informed the wife's attorney of the
matter. By-notice dated the 7th October 1979 a
notice of amendment to
the declaration was filed so as to

4

include
an allegation of adultery on the part of the husband. That became the
main ground for divorce. The amendment also prayed
for the inclusion
of an averment of adultery on the part of the wife and a prayer for
condonation .

3.
Domicile

The
evidence of the wife on the issue of domicile was as follows:

Q: "Mrs Binns is your husband domiciled in Lesotho?

A: He is My Lord.

Q: Could you perhaps develop that slightly. Could you tell this
honourable Court how long in fact he has been working permanently

here. Living here and what his intentions are about staying for a
further period in future?

A. He has already signed two contracts to work at the Outward Bound
Centre, he intends to renew his contract when this one expires
and
next year he hopes to apply for citizen­ship to enable him to
stay for the rest of his life".

In his
reasons for judgment the learned trial

Judge
says -

"At
the trial, the only direct evidence that the defendant had abandoned
his domicile of origin and acquired a domicile of
choice in Lesotho
was given by the plaintiff herself. My note of what she said on this
important issue reads as follows:

'We came to Lesotho in November 1975 as my husband had taken a job
with the Outward Bound Association at Leribe. He has signed
contracts
and he intends to renew when his present contract expires. Next year
he intends to apply for citizenship to enable him
to reside in
Lesotho for the rest of his life'.

5

I have no information as to the birth place and domicile of origin of
the defendant. When the plaintiff gave birth to the child
of the
marriage at Johannesburg on the 23rd November 1976, the defendant
registered the birth and gave his own country of origin
as Britain.
The political entitly known as Great Britain includes a number of
possible domiciles.

It later emerged in the course of the plaintiff's evidence that
Lesotho is not the first overseas country in which she and her

husband resided since their marriage. They lived in Kenya for some
time where the husband worked at another Outward Bound Institution.

I may say at this point that it is not part of the function of a
Judge to guide or assist litigants "in the presentation of
their
evidence, particularly when they are represented. The defendant was
present in Court throughout the whole of the proceedings
and was
available, if called as a witness by the plaintiff, to support her
contention that he had acquired a domicile of choice
in this country.
As he did not testify it might be assumed that he was not in a
position to state under oath that he had in fact
formed a settled
intention to remain in this country".

Later in
his reasons for judgement the learned

Judge
says -

"The plaintiff in this case said that she wants to be able to
marry another man as soon as possible. She has therefore a powerful

motive to protest that her husband has acquired a domicile of choice
in this country, which if established, would confer jurisdiction
upon
this Court to grant her the relief which she greatly desires. As an
interested party upon whom an onus rests to establish
her husband's
domicile the evidence of the plaintiff has to be carefully
scrutinised. (See Williamson J.A. in Eilon v. Eilon supra
at 714).
Such a scrutiny involves a comparison of the alleged intention of the
defendant with his actions past and present, his
present
circumstances and prospects, his ties both personal and financial
with his domicile of origin and with Lesotho and all
other matters
which may indicate the defendants intentions.”

and after
reciting a passage from Dicey's conflict of Laws 8th Ed. page 96 he
continued –

"In the instant case I have not been presented with independent
evidence which supports the intentions of the defendant or
from which
any inferences can be drawn which would enable this Court to conclude
that the plaintiff has discharged

6

the onus
upon her of proving that her husband is domiciled in this country.
That being the case I had no alter­native but to
dismiss the
action on the basis that the Court has no jurisdiction to entertain
it

A person
is domiciled in that country in which for legal purposes he is
presumed to be present at all times. A person with full
juristic
capacity can freely choose where he wants to be domiciled but to give
effect to that choice he must have actually taken
up residence in the
country chosen and (what is in issue here) must have formed the fixed
intention of residing there permanently;
that is, of abandoning an
existing domicile and acquiring a new one; Eilon v. Eilon 1965(1)
S.A. 703 (A) at 720 D.

The
question here is whether the evidence carries the wife home. The wife
being an interested party on a matter of the public status,
her
evidence had to be closely scrutinised. As was said by Williamson,
J.A. in Eilon's case at page 714 G –

"As an interested party upon whom an onus rested to establish
the respondent's domicle, her evidence had to be carefully
scrutinised".

The
learned Judge a quo has not rejected the wife's evidence nor has he
impugned her credibility, so that her evidence can be taken
as
correct so far as it went.

A party's
ipse dixit does not usually suffice on the issue of domicile. It
would still be necessary to show at least that the probabilities

supported his claim.

7

As a
matter of probability the husband's domicile of origin is the British
Isles. However he appears to have little ancharage there.
There is no
indication that he has any property or expectations there or any
close family or any other connection calculated to
tie him to his
domicile of origin. His employment is apparently orientated away from
the British Isles. That is what I assume employment
in the Outward
Bound Association implies. The husband has apparently permanent
employment in Lesotho and I can see no reason why
his attitude should
not be that -

"this place is my home and I have no present intention of
leaving it".

Eilon's
case at p. 714B.

It would
certainly have been wiser if the matter of domicile had been
investigated more fully by the wife's counsel. However, in
my view,
the probabilities support the wife's evidence. It is true that, in
the extract from her evidence recited earlier, there
are two
criticisms which can be advanced against that evidence; In the first
place the matter of domicile was for the court not
for the witness;
but more important the source of the allegations of the husband's
intentions in regard to remaining in Lesotho
is not stated.
Presumably the wife was giving the effect of statements by the
husband to her; but this should have been made clear.

On the
whole, however, there appears to be no reason to reject the evidence
of domicile. The learned Judge has criticised the wife
for not

8

calling
the husband as the witness; but on the whole I think the onus of
establishing domicile in Lesotho was discharged.

4.
Adultery

In his
reasons for judgment the learned Judge

said:

"There was a suspicion of collusion which was not dispelled and
the evidence adduced in support of the allegation that the
defendant
had committed adultery was not satisfactory".

Collusion
implies that the husband and wife conspired to obtain divorce by
means of false evidence or by the suppression of relevant
facts. In
such circumstances neither may obtain a divorce since this would be
tantamount to obtain a divorce by consent. The suspicion
of collusion
is apparently based on the fact that the wife did not initially put
her case on the ground of adultery. She explained
in her evidence
that she has taken this course because she wanted to protect the
husband's reputation in town and it was not necessary
to be
vindictive.

Even
assuming that the decision not to claim on adultery was taken in
agreement with the husband it did not, in my view, amount
to
collusion. The wife could properly put her case on malicious
desertion alone. It was for her to decide. Of course, if the evidence

of adultery had played a role in her decision to withdraw desertion,
the wife would be bound to disclose this fact in her evidence;

otherwise she would be withholding the full reason

9

for the
break-up of the marriage. Her evidence would then not be the whole
truth. But there was nothing to compel her to rely on
adultery as a
ground of divorce. The wife was not claiming a decree of divorce by
false evidence or the suppression of relevant
evidence, she was
claiming a divorce on the grounds of malicious desertion and this was
a matter of election by her. In my view
there was no evidence of
collusion.

On the
issue of adultery the evidence was as follows:

"On the 30th May, 1979 I had an appointment in Maseru with a
priest to ask his advice.

H.L.30th
of May, this year? - That is correct. I thought it would help to call
to the priest and to discuss my problems with him
to try and get some
help from him and some advice. And because I'd been having trouble
with my car I was late returning home. In
fact I didn't reach home
until 10.30 in the evening which is much later than I usually do when
I've been out. And on reaching the
house I found it to be in darkness
but for a light in the spare bedroom. I went in search of my husband
and I tried to open the
door of the spare bedroom, but someone was
behind the door holding it closed, and I couldn't open it. I heard
scuffling from inside
the bedroom and I heard the fly screen being
raised.

P.C.Mrs
Binns will you speak clearly so that the Judge can write these things
down.

I heard
scuffling inside the room then I heard the fly screen being raised
and the window being opened. And I went, at that point,
I went to the
kitchen to make some coffee.

Did you
try to open the door? - Yes I did but I was unable to. About ten
minutes later my husband came to the kitchen in a state
of disarray.

H.L .So
you are speaking of this year? - Yes.

P.C. Yes?
- And he admitted that he had been sleeping with our maid.

He
admitted to you that he was sleeping with the maid? - Yes he did.

10

Where?
Inside the spare bedroom. In your matrimonial home? - Yes.

Did he
admit further anything else about the duration of his discretion
(sic) to sleep with the maid? - He told me during the next
few days
when further details came to light. He did tell me that the
relationship had lasted since approximately February, or March
of
1978.

That is
the previous year? - That is the previous year.

Mrs Binns
has this relationship by and between your husband and the maid
continued after the 30th of May? - Yes, I believe it has.

How do
you know that? - My husband admitted that he had still been seeing
this young lady when I was in the U.K. with my parents
on holiday.

H.L. Pardon. Mrs Binns what did he admit? - He admitted that he
still had, on a couple of occasions had intercourse with her.

How did
you get to know that? I mean had he admitted it to you in U.K. or?

P.C. My Lord the position is this: I want to disclose on. The
Plaintiff she said she had already left the matrimonial home on
the
13th of June.

H.L.
Well we have not come to that, yet.

P.C. My Lord we have actually not to worry: What the witness says is
that after 13th of June. After she had left matrimonial home,,
She is
giving evidence to the effect that she know (sic) that the adultery
continued, between her husband the defendant and the
maid, She has
mentioned that,

H.L. But
she did not state in what way she knew.

What is
the source of this information? I am asking. I didn't get an answer,

P.C.
Could you tell his Lordship: How did you come to know that your
husband had been sleeping with the maid after 13th of June,
Did he
admit it to you or did you find out from another source or how did
you come to know of his adultery? - He admitted it to
me,

Mrs Binns
between the 30th of May and the 13th June: Became aware that your
husband had been having an affair with the maid after
the 13th of
June. Did you discover at your matrimonial home any other signs of
the adulterous relation­ship between your husband
and this
person. Did you see in anything that was disturbed, in the bedroom,
on the floor something like that? - There were clothes
in the spare
bedroom which didn't belong to me.

Were they
women's clothes? ~ Yes they were.

11

What
else? What else did you find in the house indicating that there had
been such situation? - The bed in the spare bedroom was
disturbed.

In what
way was it disturbed Mrs Binns? - As though someone had been sleeping
in it".

In Gates
v. Gates. 1939 A.D. 150 at 155 Watermeyer J.A. said:

"It is true that in certain cases more especially in those in
which charges of criminal or immoral conduct are made, it has

repeatedly been said that such charges must be proved by the
"clearest" evidence or "clear and satisfactory"

evidence or "clear and convincing" evidence, or some
similar phrase. There is not, however, in truth any variation in
the
standard of proof required in such cases. The requirements is still
proof sufficient to carry conviction to a reasonable mind,
but the
reasonable mind is not so easily convinced in such cases because in a
civilised community there are moral and legal sanctions
against
immoral and criminal conduct and consequently probabilities against
such conduct are stronger than they are against conduct
which is not
immoral or criminal".

On that
approach I am satisfied that the allegation of adultery was proved.
The evidence given by the wife was circumstantial and
it is difficult
to see what additional evidence was available to her.

5.
Condonation of the wife's adultery

In South
Africa Rule 18(8) of the Uniform Rules of the Supreme Court requires
that where a party suing for divorce has been guilty
of adultery he
must give particulars in his summons and pray for condonation. In
Lesotho (so I am informed by counsel) there is
no comparable rule and
as presently advised I cannot see that the allegation is essential.
Provided the full facts are presented
to the Court at the trial I
cannot see the need for advanced publicity of the facts of the
plaintiff's own adultery. In the absence
of the Rule of court the
Roman-Dutch Law is as stated by Hoexter J.A. in Daniels v. Daniels
1958(1) S.A. 513 (AD) at 532 A-C:

12

"Our common law is not static, and over the last hundred years
this practice of requiring disclosure on the part of a plaintiff

developed as the result of regarding the granting or refusal of a
divorce as matters which take into account not only the rights,
inter
se, of the spouse, but also questions of public policy. The rights of
the spouse, inter se, must be determined in accordance
with the
pleadings, and it is clear that in the Roman-Dutch law as well as in
our modern law, compensation has to be pleaded. (See
Voet, 16.2.2,
van der Keessel, Dictata ad G. 3.40.7, and Mohamed v. Nagdee, 1952(1)
S.A. 410 (A.D.) at p.416). In undefended cases,
therefore, if the
plaintiff has pleaded and proved either adultery or malicious
desertion on the part of the defendant, the fact
that he has
disclosed adultery on his own part is not treated as a defence by the
defendant, who is in default, but as a matter
relevant to the
question whether the plaintiff himself may not have caused the
break-up of the marriage and whether it would be
in the public
interest to grant or to refuse a divorce".

However
it seems unnecessary to come to a final decision on this point. For
assuming condonation is required, I would have hesitation
in granting
it for the following reasons:

1. The
   marriage had broken down irretrievably and both husband and wife
   desire that it be terminated;

   
   

2. The
   break-up of the marriage was not due to the wife's adultery:

   
   

3. The
   husband himself was apparently still carrying on an adulterous
   association with the maid;

   
   

4. The
   wife had rot been promiscuous but had lived with a man who was
   contributing to her support and that of the child and whom
   she
   intends to marry as soon as possible.

   
   

The
wife's claims to custody and for maintenance of the child were not
contested by the husband and the evidence supports the relief

claimed.

6. The
appeal should be allowed and an order issued on the following terms:

13

1. An
   Order condoning plaintiff's adultery with one Michael Taylor;

   
   

2. A
   decree of divorce;

   
   

3. Custody
   of the minor child born of the marriage, Sian Elizabeth Megan Binns
   to the plaintiff;

   
   

4. Maintenance
   for the said minor child of the marriage in the sum of R25.00 per

   
   

month until she becomes self-supporting or marries.

There is
no prayer for the costs of the appeal and no order is made.

Signed J.R. DENDY YOUNG

Acting Judge of Appeal

I
agree Signed I .A. MAISELS

President

I agree
Signed W.P. SCHUTZ

Acting Judge of Appeal

Delivered
on the 10th day of January 1980 at MASERU.

For
Appellant: Mr Harley

For
Respondent:In person