CIV/T/224/82

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

SALUKAZI
MOLAPO Plaintiff

V

KEKETSO
EUGENE MOLAPO Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 22nd day of April. 1985.

This is a
restitution action. I do not propose to deal with the merits of the
case in anyway beyond saying that the defendant, according
to the
note made on the file by the Chief Justice, withdrew his opposition
to the plaintiff's claim i.e. the action proceeded as
undefended.

After
hearing viva voce evidence from the plaintiff, the Chief Justice
issued an order (rule nisi) calling upon the defendant to
restore
conjugal rights to the plaintiff on or before a fixed date, and
failing compliance therewith, to show cause on another
fixed date why
a decree of divorce should not be granted on the grounds of the
defendant's malicious desertion. The former date
was fixed for the
14th day of March 1983 while the latter was fixed for 22nd day of
March 1983. After the said order was made the
matter was, thereafter,
postponed on several occasions.

On the
return day of a rule nisi in a divorce action all issues raised
during the trial are res judicata except the ancilliary prayers
not
canvassed at the trial such as the question of custody, maintenance
of the children etc. or in exceptional cases where the
defendant
alleges fraud or

2

new
information is brought to the notice of the Court, (Chouler v
Chouler. 1973(4) S.A. 218(W).

In the
present case before me the plaintiff has filed an affidavit of
non-return in which it is alleged that the defendant came
to the
plaintiff's house with one Khethisa on "Sunday the 20th day of
March 1983" and the said Khethisa informed the
plaintiff that he
had been "sent

by his
father........to bring the defendant to her in terms of the Court
Order." She further alleges that the defendant never
"tendered
on his own to restore conjugal rights." She therefore believes
that his return is not genuine. He has therefore
not complied with
the Court's order.

The
defendant has filed no affidavit.

At this
stage of the proceedings the sole task of the Court is to determine
whether or not its restitution order was properly served
and whether
or not defendant has complied with it. (Juszkiewicz v Juszkiewicz.
1945 T.P.D US at 52; De Young v De Young 1971(2)
S.A. 90 (C);
Benvenuti v Benvenuti, 1972(3) S.A. 587(W) at 588).

In the
present case before me I have been specifically requested to
determine or make a ruling as to whether there has been compliance

with the Court's order of restitution.

The
defendant has made a physical return which however is well outside
the time pre-determined by the Court, Within that time limit
set by
the Court's order he is given ample opportunity to make up his mind.
Moreover, the importance of the issue of a rule nisi
in these cases
is intended to afford the defendant a spatium poenitentiea in the
hope of preserving the marriage and it can never
be looked upon as a
mere formality. In the case of Wessels v Wessels, 1950(3)

3

S.A.
85.2(0) Horwitz, J., emphasised (though in the Afrikaans language)
that the order directs the defendant to return to' the plaintiff
and
for the latter to receive the former. It is only when the defendant
has not complied with the restitution order that he is
to give
reasons, on the return day, why he has not complied with the said
order and why the normal consequences of the order shall
not follow,
namely the granting of the decree of divorce. The defendant has
chosen not to tell the Court why he has returned to
the plaintiff
well out of time and not even informing his plaintiff-wife that he
has come to restore conjugal rights albeit so
late. It could not lie
in his mouth to say that he came in compliance with the Court's
Order.

I say so
because the defendant was present in Court when the restitution order
was granted. The importance of his presence lies
herein that he heard
the period mentioned within which he could save his marriage if he so
wished even if his instructions were
to await formal receipt of the
Court's Order an aspect which as I mentioned earlier, is not
contested. The plaintiff, of course,
could on the return day decide
that she does not wish the rule nisi to be made final. In that case
the rule nisi would be discharged.
This is what actually occured in
the case of Bereng v Berena, 1978(2) LLR. 567 at 569).

If the
defendant is serious about demonstrating his animus revertendi the
onus surely is on him. (Manyokho v Manyokho. 1979(1) LLR.
638;
Ackerman v. Ackerman, 1941 W.L.D. 39; Coetzee v Coetzee. 1945 W.L.D.
122). If the defendant wished to allege fraud or tell
the Court of
any other reason why he did not comply with the. Court's order he
should have done so. Again he has chosen not to.

4

The
defendant has returned to the plaintiff after the date set by the
Court for his return. It is not without significance that
the words
"on or before" are used before the date on which the
restitution has to be complied with. These words are by
no means
uncommon in legal usage and they are understood to mean that the
person directed to do or perform an act is under an obligation
to do
so "on the date fixed but has the option of discharging it at
any earlier time selected by him." per Parker, J.,
in Re:
Tewkesbury Gas Co. (1911)2 Ch. 279, 284; Dagger v Shepherp, (1946)
K.B. 215, C.A. at 223). This return is thus not in compliance
with
the Court's order. The onus is surely on the defendant to show why
the rule should not be confirmed. He has not done so. (Stone
v Stone.
1957(3) S.A. 188(R)). Like the Rules of Court, its orders have to be
strictly carried out. They cannot be varied by any
other person.
(Mokutlulu v Solicitor-General & Others. 1981(2) LLR. 405). They
are not made as a mere matter of formality but
to serve a practical
purpose. They cannot, therefore, be ignored without serious
consequences resulting therefrom.

The Court
was not requested to concern itself with the question of the service
of the restitution order and I shall therefore assume
that the
parties were perfectly satisfied with the mode of service employed.

In the
premises plaintiff ought to be entitled to the confirmation of the
rule and the plaintiff is hereby granted a decree of divorce
with
costs.

JUDGE

22nd
April, 1983.

For the
Plaintiff : Mr. Buys

For the
Defendant : Mr. Sello