CIV/APN/132/79

IN THE HIGH COURT OF LESOTHO.
In the
Application of :

JOSEPHIN NTSOAKI LOTAN Plaintiff v.

ABRAM LOTAN Defendant

REASONS FOR JUDGMENT

Filed by the Hon. Justice F.X. Rooney on the 23rd day
of January, 1981.

For Plaintiff : Mr. Maqutu For Defendant:

This is an undefended divorce action. On the
12th January, 1981 I made an order of absolution from the instance
and these are my reasons for so doing.

The plaintiff/wife is a Mosotho who married

defendant at Maseru on the 12th June, 1970. According

to the marriage certificate the defendant was then
aged
55.

The proceedings were commenced on the 22nd June, 1979
when the plaintiff petitioned for leave to sue the defendant by way
of edictal citation which order was granted on the 16th July,
1979. In her petition it was stated that the defendant was domiciled
in the State of
Israel and that in or about the month of July, 1970
he maliciously deserted the plaintiff. A child Stella was born to
the marriage
on the 17th November, 1970.

This Court ordered that service was to be effected upon
the defendant by registered post at his last known address which was
given
as 19 Panorama Street, Haifa and by one publication in the
"Jerusalem Post", a paper published in Jerusalem. No
response
to either the letter or the advertisment was made by the
defendant. The matter came up for hearing before this Court for the
first
time on the 19th November, 1979.

2/ On that day

- 2 -

On that day I recorded some evidence from the plaintiff.
She told the Court that in July, 1970, her husband's contract of
employment
in Lesotho came to an end and he left the country. She
received a letter from her husband in 1970. When asked to produce
it, she
said that she had given it to her counsel. She said that she
wanted to go to Israel and join her husband there and that she had
expected him to return to Lesotho. In contrast to what appeared in
her petition, her evidence was that she gave birth to her child
in
May 1970. The letter to which the plaintiff referred to could not be
produced at the hearing, I postponed the matter to a date
to be
fixed

There the matter rested until the 12th January this
year, when the plaintiff resumed her evidence. Asked about the letter
which she
had received from her husband in 1970, the plaintiff told
the Court that she lost it in 1978 She said that in the letter her
husband
had sent her R350.00 so that she could obtain an air ticket
and go to Israel. However, he had sent her no money with which to
obtain
a passport. In the circumstances, she made use of the money
for other purposes and has not heard from her husband since.

If the plaintiff's husband is still alive and if he gave
his age correctly to the marriage officer, he must now be at least 65
and
may no longer be interested in receiving the plaintiff as his
wife. To succeed in her action for restitution the plaintiff must
establish that her husband has been guilty of malicious desertion.
It may be assumed that when the defendant returned to Israel
in July
1970, he was going back to his country of origin or citizenship. The
fact that he subsequently sent money to his wife in
order that she
should join him there, suggests that it was his intention at that
time to establish a home for her in Israel.

Malicious desertion is made up of two elements :-

(a) There must be the factum of desertion -

conduct by the defendant amounting to a desertion of the
plaintiff or some other breach of the fundamental obligations of the
marriage
contract; and

(b) The defendant must have acted animo deserendi

3/ without good ....

- 3 -

without good cause, and with the fixed and settled
intention to bring the marriage relationship to an end.

(S.A. Law of Husband and Wife - Hahlo Second Edition
379).

The plaintiff has not proved to my satisfaction that
when her husband left for Israel in 1970 he was in fact deserting
her. Indeed
the converse appear to be the case. She as his wife
refused, without sufficient cause, to Join her husband at the place
he had chosen
to establish the matrimonial home. The defendant's
failure to communicate with his wife for the past ten years may be
evidence of
a change of attitude on his part but it is not
conclusive. In view of what occurred he is entitled to assume that
his wife does
not wish to join him. While this Court has sympathy
with the plaintiff in her present predicament, she is to a large
extent the author
of her own misfortune.

In the present circumstances I can only suggest that the
plaintiff's attorneys make efforts to trace the whereabouts or fate
of the
defendant.

F.X. ROONEY JUDGE

23rd January, 1981.

Attorney for the Plaintiff : W.C.M. Maqutu & Co.
Attorney for the Defendant :