C. of A.
(CIV) NO. 1/81

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

JOSEPHIN
NTSOAKI LOTAN Appellant

v

ABRAHAM
LOTAN Respondent

HELD AT.
MASERU

Coram:

MAISELS
P.

VAN
WINSEN J.A.

STEYN
A.J.A.

JUDGMENT

Maisels,
P.

I shall
in this judgment for the sake of convenience refer to the appellant
as the Plaintiff, and to the Respondent as the Defendant.

This is
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
her.

Regrettably
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.

The
Plaintiff and the Defendant were married to each other in Maseru in
community of property on the 12th June 1970,

On the
6th July, 1979 the Plaintiff obtained leave to sue her husband by way
of edictal citation for restitution of

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conjugal
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
instituted.

There was
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.

It had
originally been alleged that the child was born in November 1970, but
it appeared from the evidence which the Plaintiff gave
before the
trial Court that the child was in fact born before the marriage.

At the
time of the marriage, according to the evidence given by the
Plaintiff at the trial, her husband had been employed in Lesotho
but
his contract of employment in this country came to an end shortly
after the marriage. Consequently he left Lesotho and returned
to
Israel, This was in July 1970. At times there were letters received
by the Plaintiff from the Defendant in 1970, but the Plaintiff
was
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
and the
second at the beginning of 1981. The defendant did not enter
appearance to defend the action.

The
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".

He did
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.

This
evidence emerged, at what I shall call the second hearing of this
matter, in January 1981. The Plaintiff stated

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that she
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.

The fact
remains that the parties have not lived together since 1970. The
learned trial Judge was doubtful whether the Defendant
was still
alive, but it seems to be clear from the fact that service was
effected on him that he is still alive.. The learned Judge
in my
opinion correctly stated that he may no longer be interested in
receiving the Plaintiff as his wife. This I consider to be
an
understatement of the position.

However,
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
deserted her.

He has
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
of
the Defendant, this we were informed by Mr. Maqutu who appeared for
the Plaintiff had in fact been done and the documents he
placed
before us shows that this indeed is the case.

The
Plaintiff does not claim the costs of the trial or of this appeal nor
does she desire in these proceedings to claim maintenance
for the
child.

The
following order is made : (a) The appeal is allowed.

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(b) The
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,
Stella.

Service
of this order is to be effected by registered post addressed to the
defendant care of BAR RAV HAY, ERDSTEIN & BAR RAV
HAY, Advocates,
32 HERZL ST. HAIFA ISRAEL.

I.A. Maisels

Signed:

I.A. MAISELS

President

L.de V. Van Winsen

I agree
Signed:

L. DE V. VAN WINSEN

Judge of Appeal

J.H. Steyn

I agree
Signed:

Acting Judge of Appeal

Delivered
on this 19th day of April 1982 at MASERU

For
Appellant : Mr. Maqutu