C. of A.
(CIV) NO. 1/81
LESOTHO COURT OF APPEAL
Appeal of :
NTSOAKI LOTAN Appellant
in this judgment for the sake of convenience refer to the appellant
as the Plaintiff, and to the Respondent as the Defendant.
an appeal from a judgment of the High Court dismissing a claim by the
Plaintiff against the Defendant, her husband, in which
she claimed an
order for restitution of conjugal rights and certain ancillary
relief, by reason of his having unlawfully deserted
the record of the evidence before the High Court is not available but
the judgment of that Court contains a sufficient
statement of the
evidence upon which I am able to base this judgment.
Plaintiff and the Defendant were married to each other in Maseru in
community of property on the 12th June 1970,
6th July, 1979 the Plaintiff obtained leave to sue her husband by way
of edictal citation for restitution of
rights. In her petition the Plaintiff alleged that the Defendant was
domiciled in Israel and that in or about the month
of July 1970 and
in Maseru he had maliciously deserted her. However, by virtue of the
provisions of section 2(1)(a) and (b) of
the Matrimonial Causes
Jurisdiction Act No. 21 of 1978, it is clear that the Courts of
Lesotho have jurisdiction because the Plaintiff
who was born in
Lesotho had been resident in Lesotho for a period of excess of one
year immediately prior to the date on which
the proceedings Were
a child born of the marriage between the Plaintiff and the Defendant.
When I say there was a child of the marriage it
appears that the
child Stella was actually born prior to the date of the marriage
namely the 17th May 1970.
originally been alleged that the child was born in November 1970, but
it appeared from the evidence which the Plaintiff gave
trial Court that the child was in fact born before the marriage.
time of the marriage, according to the evidence given by the
Plaintiff at the trial, her husband had been employed in Lesotho
his contract of employment in this country came to an end shortly
after the marriage. Consequently he left Lesotho and returned
Israel, This was in July 1970. At times there were letters received
by the Plaintiff from the Defendant in 1970, but the Plaintiff
unable to produce them at the trial. There were two hearings of the
trial, the first as early or as long ago as November 1979
second at the beginning of 1981. The defendant did not enter
appearance to defend the action.
Plaintiff stated and I quote from the judgment of the learned Judge
in the trial Court.
"that she wanted to go to Israel and join her husband there and
she had expected him to return to Lesotho".
not return to Lesotho but he did send her the sum of R350 so that she
could obtain an air ticket and go to Israel.
evidence emerged, at what I shall call the second hearing of this
matter, in January 1981. The Plaintiff stated
had no money with which to obtain a passport and apparently no money
with which to maintain herself or her child, so she
had used the
money for other purposes and had not heard from her husband since.
remains that the parties have not lived together since 1970. The
learned trial Judge was doubtful whether the Defendant
alive, but it seems to be clear from the fact that service was
effected on him that he is still alive.. The learned Judge
opinion correctly stated that he may no longer be interested in
receiving the Plaintiff as his wife. This I consider to be
understatement of the position.
the learned Judge said, the Plaintiff had to establish that her
husband had been guilty of malicious desertion. Whilst
it is true, as
found by the learned trial Judge, that it can hardly be said that the
Defendant deserted the Plaintiff in July 1970,
his conduct since that
time seems to me to be consistent only with an intention on his part
of deserting her and that he has actually
not communicated with his wife, the Plaintiff for years, he has sent
her no money for herself or the child, and he has made
no effort to
resume cohabitation with his wife. I am unable to agree with the
learned trial Judge that it is the Plaintiff who
is in fact guilty of
malicious desertion. Under these circumstances it seems to me that
the learned Judge erred in not granting
a restitution order and in my
judgment this appeal should be allowed.
I may say
that at the conclusion of his judgment the learned trial Judge
suggested that the Plaintiff should try to trace the whereabouts
the Defendant, this we were informed by Mr. Maqutu who appeared for
the Plaintiff had in fact been done and the documents he
before us shows that this indeed is the case.
Plaintiff does not claim the costs of the trial or of this appeal nor
does she desire in these proceedings to claim maintenance
following order is made : (a) The appeal is allowed.
defendant is ordered to restore conjugal rights to the Plaintiff on
or before the 19th June, 1982, failing which he is to
show cause on
the 19th July 1982 why a decree of divorce should not be granted,
forfeiture by him of the benefits of his marriage
to the Plaintiff
and why the Plaintiff should not be granted the custody of the child,
of this order is to be effected by registered post addressed to the
defendant care of BAR RAV HAY, ERDSTEIN & BAR RAV
32 HERZL ST. HAIFA ISRAEL.
L.de V. Van Winsen
L. DE V. VAN WINSEN
Judge of Appeal
Acting Judge of Appeal
on this 19th day of April 1982 at MASERU
Appellant : Mr. Maqutu
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