SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
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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The two minor children of the marriage, M. and M2., will remain in the custody of the plaintiff;
The defendant will contribute to the maintenance of these two children in the amount of M50 per child monthly;
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;
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