CIV/T/804/85
IN THE HIGH COURT OF LESOTHO
In the Matter of :
SECHABA MOJAU Plaintiff
vs
KOSEA KUENA Defendant
JUDGMENT
Delivered by the Honourable Acting Chief Justice Mr. Justice J L. Kheola on the 16th day of April. 1987.
The Plaintiff in this action is the husband of one Elsie Mojau (nee Pheko), He alleges that he married her by civil rights at Mohale s Hoek on the 26th January, 1966 and that the marriage still subsists. The Defendant and the Plaintiff's wife are at present living as man and wife at No, 278 Thabong Location, Welkom in the Republic of South Africa. The Plaintiff is claiming damages in the amount of M12,000-00 by reason of the defendant's wrongful and intentional interference with plaintiff's right to the consortium of his wife and costs of suit.
In his declaration the plaintiff avers that three children were born out of the marriage, namely, 'Mamojau aged 19 years, Malile aged 18 years and Morakane aged 8 years From January to June 1984 the Plaintiff was away in Britain for further studies; during this period. the Plaintiff has now learnt that an illicit love affair took place between Defendant and Plaintiff's wife, and a plan was hatched between
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the two by which Plaintiff's wife was to leave Plaintiff and settle with defendant at defendant's house in Welkom.
On the 4th June, 1986 the defendant filed a Notice of Appearance to defend and on the 9th June, 1986 he filed a request for further particulars. Further particulars were supplied on the 12th June, 1986 and on the same day the Plaintiff filed a Notice requiring the defendant to furnish security for plaintiff's costs of action in the sum of M1,000-00 by reason of the fact that the defendant is not a resident of Lesotho. On the 15th December, 1986 the defendant was ordered by the Court to furnish security for costs within 21 days. The defendant failed to comply with the Court's order. On the 23rd February, 1987 the plaintiff barred the defendant from filing any further pleadings and applied for a default judgment.
The plaintiff called the defendant's wife as his witness. She testified that her husband lives at No. 278 Mosiako Street, Thabong. Welkom in the Republic of South Africa. She used to live there with her husband till November. 1981 when the defendant chased her away. Although she is now living in Maseru she regularly goes to Welkom for certain church services. During her visits to Welkom she noticed that the defendant and plaintiff's wife were living together as man and wife at her matrimonial home at No. 278 Mosiako Street, Thabong,Welkom.
The law is very clear that "a husband has a right to the consortium of his wife, and the wife to the consortium of her husband, and each has a cause of action against a third party who, without justification, destroys that consortium." (Place v. Searle(1932) 2 K.B. 497 at p. 512; Rosenbaum v. Margolis, 1944 W.L.D. 147 at p. 151; Best v. Samuel Fox & Co, Ltd. (1952) A.C. 716 at p. 729)..
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In Pearce v. Kevan, 1954 (3) S.A. 910 at p. 912 Selke, J. stated the law in the following words:
"As I understand it, the law material for the purposes of my decision may be stated briefly as follows: It is the duty of a wife to reside and cosort with her husband, and any third person, who intentionally causes her to violate this duty, commits a wrong against the husband for which the latter is entitled to recover damages unless the third person acted from lawful motives, e.g. to protect her from her husband's ill treatment, real or genuinely supposed. It is obvious that there must be a causative connection between the conduct of the third person and the dereliction by the wife of the duties she owes her husband, and the law as I have endeavoured to state it potentially embraces the conduct of a man who, whatever his immediate objects may be perseveres in behaving towards another man's wife in a way which he realises is having the effect of alienating her affections from her husband, and which ultimately produces that result, and brings about an estrangement."
In the instant case the plaintiff has not led any evidence from people who were present in Lesotho during the period from January to June to prove that the defendant visited his wife during weekends and coaxed his wife away or enticed or persuaded her to leave him. In paragraph 3 of further particulars the plaintiff alleges that he has ample evidence to prove the illicit love affair between his wife and the defendant while he was in Britain. He has not called any witness to prove this very important part of his case (Van Den Berg v. Jooste, 1960 (3) S.A.71). However, when the plaintiff returned to Lesotho he tried hard to have his wife back. He went to the Commissioner's office in Welkom and also asked the District Secretary for the district of Maseru to write to the District Commissioner of Welkom asking him to cause the plaintiff's wife to return to Lesotho. As a result of the steps he took when he returned to Lesotho, the plaintiff made it quite clear to the defendant that his wife had left him without his consent but the defendant continued to harbour her and lived with her as man and wife. The cohabitation continues to date.
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In Woodiwiss v. Woodiwiss, 1958 (3) S.A. 609 at p. 617 Milne, J. said:
"It would not be enough for the plaintiff to prove that the first defendant left him after frequent and continued association
with the second defendant, or even in consequence of such association, for a wife might leave her husband of her own will in order to make herself more accessible to the other man especially if he had, up till then; had some scruples about "breaking up a
happy home." It seems that the plaintiff in these cases must prove that the third party has acted, and done so successfully, with the deliberate object of enticing the wife to leave her husband and thus deprive him of her consortium (Pearce v. Kevan, at pp 914, 915 Best v. Samuel Fox & Co., 1952 (2) A.E.R. 394 (H.L.))".
The wife of the plaintiff in the present case is alleged to have approached her employers in Maseru and to have asked them to transfer her to Welkom where she would be near her parents because the plaintiff would be away from home for five years to further his studies
overseas. She may have done this on her own free will so that she could be near the defendant and have easy access to him. As I said earlier in this judgment the plaintiff has failed to prove that his wife left the common home as a result of persuasion or enticement by the defendant.
It does not follow that where the plaintiff has failed to prove enticement or persuasion on the part of the defendant the whole case must-be dismissed. As Milne, J. said in Woodiwiss v. Woodiwiss, supra, at page 616,
"The case of harbouring a wife is different in character. The action apparently lies even where the wife has left her husband
without any persuasion or enticement on the part of the third party but the defendant would, it appears, only be, liable for harbouring
after he had had notice that she was absenting herself from her husband without his approval. That seems to have been the view taken by McCardie, J. in Place v. Searle, 1932 (2) K.B. at p. 499."
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It seems to me that by harbouring the plaintiff's wife after the present defendant became aware that she had left her husband without his approval the defendant is wrongfully and intentionally depriving the plaintiff of the consortium of his wife.
The plaintiff has claimed the following:
M5,000-00 for wrongful and intentional interference with plaintiff's right to the consortium of his wife;
M5,000-00 by reason of defendant's intentional harbouring of plaintiff's wife without plaintiff's consent or approval;
M2,000-00 for unjustified humiliation of and wrongful injury to plaintiff's feelings.
It seems to me that the damages claimed in (a) and (b) above should be treated under one heading of deprival of consortium. Although the damages under this heading are aggravated by the fact that the defendant is openly living with the defendant's wife as man and wife, I am of the view that they are grossly inflated (Valken v. Berger, 1948 (3) S.A.532 (W). Under this heading I would award M4,000-00. Under (c) I would award M1,000-00.
In the result judgment is entered for plaintiff in the amount of M5,000-00 with costs.
J.L. KHEOLA
ACTING CHIEF JUSTICE.
16th April, 1987.
For Plaintiff - Mr. Addy
