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CIV/T/653/86

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

SEBONOANG
AMELIA MONYAKE Plaintiff

And

DAVID
RABOROKO MONYAKE Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 23rd day of September,
1987

This is
an action for a decree of judicial separation a mensa et thoro and
custody of the two minor children.

Both
parties reside in Maseru and, although Mr. Pheko for the defendant
had seen his client and in­formed him that he should
attend Court
on the hearing day, the defendant in fact did not appear in the
morning , or the afternoon of that day. The Court
received no
communication from him to explain his absence. Hence the trial
proceeded without him.

The
parties are middle aged, the plaintiff aged 43 years and the
defendant about 49 years. They were married on 28 March 1970 at

Masianokeng Evangelical Church according to their marriage
certificate (exhibit 'A'). There were two children of the marriage,
a
boy M.R.M. who was born on [date] 1971,and

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a girl
M2.M. who was born on [date] 1973. Both of them are now teenagers and
attending school.

The
plaintiff testified about various incidents from 1980 to date
relating to her husband's attitude and conduct with regard to
herself
and their marriage.

Mrs
Monyake described how, by 1980, their marriage was not going well
mainly, due to the frequent extra­marital affairs of the

defendant and his arrogant and unrepentant attitude when the
plaintiff complained about this behaviour. Mrs Monyake testified that

by October 1980 "there was no more peace in the family" and
some friends advised her to try and conceive another child
in the
hope of bringing some happiness into the family.

One
morning in that month when she was undressed and washing herself in a
basin in their bedroom she made the suggestion to her
husband. For
some reason he reacted violently and kicked her in the chest and she
fell over. She said that she was surprised and
hurt. She has had no
sexual relations with him since that date.

In 1981
they had a young domestic servant called 'Maseabata Monyake who was,
in fact, an aunt of the defendant although much younger
than he. She
left and in 1982 wrote to the plaintiff that she had been made
pregnant by the defendant. This was admitted by the
defendant in his
written plea. There was a meeting of their parents in an attempt to
settle the matter. Apparently it was not successful.

The
plaintiff testified that she and the defendant

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travelled
to the meeting by car. On the way the defendant. -showed no remorse
and spoke arrogantly saying that he did not belong
to her family but,
rather, she belonged to his family. He admitted impregnating
'Maseabata but blamed the plaintiff for allowing
the girl to stay
with them. He did not apologise or ask to be forgiven and she had not
forgiven him.

Around
March 1983 the plaintiff said she was "brutally assaulted"
by the defendant who refused to let her take the children
across the
border on an outing to the zoo. He struck her with a big stick and
"disfigured" her thigh by leaving, not
a scar, but what she
called a "furrow". She had to seek the protection of the
police.

In August
1983 the plaintiff was summoned to hospital where she found the
defendant had been admitted with a stab wound. The plaintiff
related
that the de­fendant had been having an affair with the wife of
one Letsie, who had caught them both in the act and
stabbed each of
them. The defendant's version to her was that he had delivered some
goods in his motor vehicle to the man's wife
and he had asked for
payment. Letsie had found them together and had presumably assumed
the worst.

In July
1984, while the plaintiff was on a trip to Europe, the defendant gave
some sort of party at their home. It ended up with
him sleeping with
one woman, while a friend of his and another woman occupied another
bed in the same room. The children wrote
to their mother about it and
she later questioned him. The defendant merely

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explained
that the party went oh very late and there was nobody to take those
people home so he let them stay for the night. She
said that he
showed no signs of repentance. In the same year, on another occasion,
the defendant threatened her with a knife until
someone intervened.

The
plaintiff complained that the defendant had sexual relations with
each one of their successive housemaids. She said that in
1984 one of
them called Ntsoaki, left at the end of the year because the
defendant had threatened to kill her when she resisted
a sexual
assault upon her. She ran away to their neighbours. In 1986 another
house­maid, called 'Mamosolotsoane left because
the defendant
demanded that she should kiss him. When the plaintiff questioned him
about the incident he admitted it and added
that if the plaintiff
left the girl there, that is what she should expect from him. His
attitude towards the plaintiff was uncaring
and humiliating. She
referred to him as "an animal".

The
plaintiff stated that the defendant drank a lot and that he was no
longer able to keep a job, changing from one to another as
his work
was found to be unsatis­factory and he was discharged. He had a
regular job as a mechanic until 1982 but since then
he had been in
and out of work and frequently unemployed. He was not main­taining
her and the children and consequently the
family increasingly had to
rely on the plaintiff's earnings as a secretary with a firm of
quantity surveyors.

In
cross-examination Mr. Pheko pointed out to her that judicial
separation is a temporary arrangement on

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the way
to a divorce unless there is reconciliation be­tween the parties.
He asked the plaintiff what her in­tentions were
in this respect.
She replied that she had become a Catholic and so she did not believe
in divorce nor did she seek one. At the
same time she could no longer
live with her husband because she found their life together to be
intolerable and even dangerous
to her as a result of the defendant's
unlawful and unacceptable conduct. This, in fact, is just the
situation in which a judicial
separation decree can be granted,
provided that the Court is satisfied that it was the defendant's
con­duct which was the sole
or main cause of the state of danger
or intolerability.

The
plaintiff testified about the defendant's boasting of and admission
to adultery on a number of occasions, particularly with
their
domestic servants; his use of physical violence and threats of
violence against her, his arrogance and open contempt for
her and for
their marital state which was upsetting and humiliating for her and
the children. In addition, his excessive drinking
and inability to
hold down a job for very long contributed to the disruption of their
home life and the break-up of their marriage.
All this was much more
than is contemplated by the ordinary wear and tear of married life
and goes beyond what could reasonably
be tolerated in the
circumstances.

The
defendant did not come to Court to put his side of the affair so
there was no explanation or jus­tification of his actions
and no
attempt to dispute or disprove the plaintiff's testimony.

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Mr. Pheko
did his best on behalf of the defendant by cross-examining the
plaintiff at some length about all of her testimony. However,
$he
remained confident and unshaken throughout. She impressed me as being
a truthful and reliable witness not given to undue exaggeration.
She
was not asking or planning for a divorce in the future and she had
not lost sight of a chance of a reconciliation provided
the defendant
changed his ways completely. However, she had no real hope that he
would be likely to do so. Bearing in mind that
the defendant is now
about 49 years old, I would be inclined to agree with her that he is
probably too set in his ways and habits
by now. Their marriage
unfortunately appears to have broken down irretrievably.

As far as
this action is concerned I am satisfied that the evidence of the
defendant's conduct and behaviour is sufficient to justify
granting
the decree prayed for.

The
defendant apparently has two houses in addition to the matrimonial
home. One is still being built under a loan and he derives
rent from
the other, which apparently he would be able to occupy. According to
his written plea, in spite of being out of work,
he is still able to
provide for his children. He should therefore continue at least to
take a share in doing so. The plaintiff
is employed and can
contribute towards their maintenance also.

Accordingly,
judgment is entered in favour of the plaintiff in the following
terms:-

There will be a decree of judicial separation a mensa et thoro;

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2. The
   two minor children of the marriage, M. and M2., will remain in the
   custody of the plaintiff;

   
   

3. The
   defendant will contribute to the maintenance of these two children
   in the amount of M50 per child monthly;

   
   

4. The
   plaintiff and the children shall remain in the matrimonial home and
   their joint estate is to be divided equally taking this
   factor into
   account;

   
   

5. The
   plaintiff is to receive her costs in the suit.

   
   

P.A.P.J.ALLEN

JUDGE

23
September, 1987

Mr.
Moiloa for the Plaintiff

Mr. Pheko
for the Defendant