CIV/T/456/82

IN__THE
HIGH COURT OF LESOTHO

In the
Matter of

'MALITSE8E
PALESA MOTHEBESOANE .... Plaintiff

and

ENOCH
MOTHEBESOANE.............. Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 11th day of November, 1987.

On 11th
November, 1982, Plaintiff herein filed with the Registrar of the High
Court summons commencing an action in which she sued
Defendant for a
decree of divorce on the ground of aultery, division of the joined
estate, costs of suit, further or alternative
relief, ALTERNATIVELY
an order for restitution of conjugal rights failing compliance
therewith a decree of divorce on the ground
of malicious desertion,
division of the joined estate, costs of suit, further or alternative
relief

On 12th
November, 1982 the summons was duly served personally upon the
Defendant who on 16th November, 1982 intimated his intention
to
defend the action and filed his plea. On the same day, 16th November,
1982, Defendant also filed a counter-claim in which he
claimed
against the Plaintiff restitution of conjugal rights failing
compliance therewith a decree of divorce, for­feiture
of the
benefits arising from the marriage and costs of suit.

It may be
mentioned that although on 2nd March, 1983 Plaintiff filed a notice
of Exception this was abandoned at the commencement
of the trial when
the Respondent also abandoned his counter-claim.Consequently

2

only
Plaintiff's claim and Defendant's plea remained.

It is
common cause from the pleadings that on 17th April, 1970 Plaintiff
and Defendant entered into a civil marriage. The marriage
was in
community of property and still subsists. No children were born of
the marriage.

According
to Plaintiff's declaration to the summons Defendant had since May
1981 and with a settled intention to terminate the bonds
of marriage,
called her a harlot, accused her of having illicit love affairs,
ordered her not to go into the kitchen as he believed
she wanted to
poinson or bewitch him, assaulted her, denied her conjugal rights and
almost daily told her to leave the matrimonial
home for he no longer
loved her. For these reasons Plaintiff contended that Defendant had
wrongfully and maliciously deserted her.
Furthermore, Defendant had,
during the period between the 9th and 11th April, 1982 at the marital
house of the parties situated
at 620 Hoohlo extention committed
adultery with one Thandie Lilian Mqoma which adultery she had not
condoned. Wherefore, Plaintiff
prayed for relief as aforementioned.

In his
plea defendant denied the allegationa con­tained in Plaintiff's
declaration to the summons and prayed that her claim
be dismissed
with costs.

As
regards Defendant's alleged adultery, it is common cause that some
time towards the end of March or the beginning of April, 1982,

Plaintiff and Defendant were invited to attend an official opening of
a new hotel belonging to Chief Retselisitsoe Sekhonyana who
is
married to one of Plaintiff's younger sisters. Defendant declined the
invitation but allowed Plaintiff to attend the feast.

According
to her, Plaintiff left for the feast on a Thursday and returned home
on the following Monday, On arrival at home she was
informed by the
domestic

3

servant,
one 'Manthabiseng Letsie, that during her absence defendant had a
female visitor in the house. Shortly, thereafter, Plaintiff
had the
occasion to go and throw dust into the dust bin. She then noticed
pieces of a torn letter in the dust bin. She picked the
pieces and
patched them together. She discovered that the pieces were of a love
letter dated 14th April, 1982, written to a certain
Thandie, She kept
the letter which was handed in as Exhibit "A" in her
evidence. She later found in one of the books
in the house an envelop
addressed to a Miss Thandie Mqoma of McCords Hospital in Durban, in
the Republic of South Africa. She again
kept the envelop which was
handed in as Exhbit "C" in her evidence. Both Exhibits "A"
and "C" were
written in the handwriting of the defendant
From the two exhibits and the information she had received from the
domestic servant,
Plaintiff concluded that defendant had a love
affair with Thandie Mqoma with whom he had been committing adultery
at the matrimonial
home during her (Plaintiff's) absence.

According
to defendant, he had allowed Plaintiff to attend the feast for just
one day. She, however stayed away from home for several
days. He was
offended and wanted to hit back at the Plaintiff. He, therefore,
wrote Exh "A" and "C" which he
thought would make
Plaintiff believe that in her absence there was another woman keeping
him busy at home. On second thought he
decided that it was
unnecessary to hit back at the plaintiff and tore away Exhibit "A".
He placed the torn pieces of
Exhibit "A" in an ash-tray on
the table and not the dust bin. He, however, forgot exhibit "C"
in one of the
books he had been reading. Thandie Mqoma was just a
fictitious person who was never at the matrimonial home during
Plaintiff's
absence. Defendant denied, therefore, Plaintiff's
evidence that he had committed adultery during the latter's absence
from the
matrimonial home.

The
Domestic servant, 'Manthabiseng Letsie, testified before this court
as D.W.2 and denied Plaintiff's allegation that she ever
informed her
that during her absence defendant had a female visitor in the
matrimonial

4

home.
Defendant did, however, tell her that he was annoyed by Plaintiff's
delay to return home from the feast. He then wrote a letter
by which
he said he was pretending that there was another woman in his life so
as to offend Plaintiff. She discouraged defendant
against writing
such a letter and the latter actually fore away the letter of which
pieces he threw into an ashtray which was on
the table. However, it
would appear that before she could clean the house and throw away the
pieces of the torn letter, Plaintiff
found and kept them

I must
say I observed D.W.2 as she testified before this court and she
certainly did not impress me as a very reliable witness.
Whenever
there was a discrepancy between her evidence and that of Defendant
she was asked who was telling the truth between herself
and the
defendant. The reply was invariably "I shall not speak for the
defendant." She was clearly reluctant to tell
the court that to
her knowledge defendant was not telling the truth. In my view her
evidence must be approached with caution.

Be that
as it may, it seems to me that defendant may well be telling the
truth when he said he was annoyed by Plaintiff's delay
to return from
the feast and he wrote Exhibit "A" and "C" merely
to hit back at her. If Thandie Mqoma did exist
and defednat had
illicit love affair with her there was nothing that could have really
prevented him from posting exhibits "A"
and "C"
to her. I am not convinced that these two exhibits which were not
even posted to her are conclusive evidence
that defendant had
committed adultery with Thandie Mqoma.

Plaintiff
further told the court that on 25th September, she went to town
leaving D.W.2 and defendant who was cleaning his golf
sticks. On her
return from town she found all the curtains of the house drawn and
the doors locked. She knocked at the front door
but there was no
response. She went round and entered the house through the back door
of which she had the key in her possession.
On entering the house she
noticed two glasses,

5

a half
bottle of brandy and dusters on a coffee table in the sitting room.

Confident
that there was nobody in the house, Plaintiff passed on to the toilet
room from where she went into her bedroom. As she
went out of the
wash-room, she heard voices from one of the rooms used by D.W.2 in
the house. She did not recognise whose voices
they were. She,
however, called out from her bedroom the name of D.W.2 who them
unlocked the door of her bedroom and came to Plaintiff's
main
bedroom. When she came to Plaintiff's bedroom D.W.2 was wearing only
a petticoat and explained that she had been washing herself.
Asked
with whom she had been taking in her bedroom, D.W.2 replied that she
had not been talking to anybody. At that time Plaintiff
heard the
toilet flushing and defendant coming out. On the following day D.W.2
came to her and asked for Plaintiff's forgiveness
as defendant had
betrayed her. By that Plaintiff understood D.W.2 to mean that
defendant had betrayed her into a love affair. She
therefore
concluded that defendant had been committing adultery with D.W.Z. She
however, never confronted Defendant with that incident
for fear that
he would kill her.

Both
defendant and D.W.Z denied that on 25th September, 1982 Plaintiff
found them in a house whose curtains were all drawn and the
doors
locked. Defendant told the court that on Saturdays he normally played
golf and on the Saturday in question he was probably
at the golf
ground. He drank gin and not brandy. If he had been drinking at all
it would have been gin and not brandy. In any event
he would not hove
left his drink on the table in his house.

D.W.2
denied that Plaintiff ever called her to her main bedroom on the
Saturday in question when she went to her dressed in a petticoat.
She
denied that she ever told Plaintiff that defendant had betrayed her
into a love affair nor did she asked Plaintiff's forgiveness
for
that.

If it
were true that defendant and D.W.2 were committing adultery in the
latter's room and all the doors were locked,

6

I fall to
understand why they would have to draw all the curtains of the house.
Bearing in mind that Plaintiff lived in the same
house with defendant
and D.W.2,I see no reason why she could not have recognised their
voices if they were in fact talking in the
letter's room. If it were
true that D.W.2 confessed to her that she was having a love affair
with defendant, it seems to me that
would have made Plaintiff angry
with her. But in her own words after she had left the matrimonial
home, Plaintiff had been telephoning
D.W.2. After D.W.2 had returned
to her home at Phamong, Plaintiff had written to her inquiring about
diamonds which the former
was supposed to obtain for her. That in my
view does not depict Plaintiff as a person who was angry with D.W.2.
For these reasons
I find Plaintiff's story that defendant had
committed adultery with D.W. unconvincing. I have no hesitation,
therefore, in rejecting
it as false.

On the
question of restitution of conjugal rights defendant told the court
that on two occasions he discovered that Plaintiff was
keeping, in
the house, Sesotho herbs or medicines which she said she was using to
fortify herself in her position at work. As the
medicines had been
intro­duced into the house without his consent or knowledge
defendant resented it very much. He admitted
that because of this he
called Plaintiff a witch. Although Plaintiff denied that she had
introduced the Sesotho medicines in the
house, defendant's evidence
was corroborated in that regard by that of D.W.Z. I have already said
D.W.2 did not impress me as a
reliable witness and I shall not,
therefore attack much weight on her evidence. However, apart from
defendant's explanation that
he called Plaintiff a witch because she
had introduced Sesotho medicines into the house without his
knowledge, there was no other
explanation why he did so. In the
absence of any such explanation I find no good reason why defendant
would call Plantiff a witch
unlearn she had introduced Sesotho
medicines in the house without his knowledge. She should not hove
introduced such things into
the house without the knowledge of the
defendant who was the head of the family. If defendant had called her
a witch

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she had,
in the circumstances called for it and she cannot now be heard to
complain.

It is
common cause that in May, 1981, the parties bought on hire purchase
furniture from Bradlos, in Bloemfontein, According to
Plaintiff she
was responsible for paying the monthly instalments, a fact which was,
however, denied by the defendant. In August
1981 and before the
furniture could be fully paid, the parties bought a kitchen scheme.
However, defendant refused to assist her
to pay for the instalments.
That was again denied by defendant who told the court that Plaintiff
bought the kitchen scheme without
his consent or knowledge.

In any
event, Plaintiff told the court that after the kitchen scheme had
been bought she was unable to pay for the monthly instalments
of both
the furniture and the kitchen scheme. On 30th July, 1981 she started
borrowing money with which to clear the debt for the
furniture. She
approached Chief Sekhonyana who agreed to assist and accordingly
issued a cheque in full settlement of the debt
for the furniture.

Well, if
Plaintiff were telling the truth that the kitchen scheme was bought
in August 1981 she obviously did not tell the truth
when she said on
30th July, 1981 she started borrowing money because she could not
afford to pay the monthly instalments of both
the furniture and the
kitchen scheme. The reason for that is simple. As of 30th July, 1981
the kitchen scheme had not yet been
purchased and no instal­ments
were, therefore, to be paid for it.

Be that
as it may, it was common cause that in August 1981 defendant found
out that Chief Sekhonyana had paid for his furniture.
He disapproved
of another man paying for the furniture of his house. According to
Plaintiff defendant then assaulted her. She,
however, reported the
assault to neither the police nor any of the relatives. Nor, indeed,
did she go to a doctor for medical treatment.

I find it
highly improbable that Plaintiff could have been assaulted and yet
she reported to neither the

8

police
nor any of the relatives, nor, indeed, went to see a doctor for
medical treatment. If, at all, it did happen the assault
must have
been so insignificant that it could hardly be said to have been
carried out with a settled intention to terminate the
marriage.

It is
common cause that after he had found that chief Sekhonyana had paid
for the furniture,defendant decided to trade it in for
another
furniture which he would pay for with his own money. According to
Plaintiff that was done without her knowledge. She was
only surprised
to see, on 9th November 1982, Bradlos truck arriving with a new
furniture which the driver wanted to deliver at
the matrimonial home
in exchange for the old one. She did not allow it. Shortly after the
Bradlos truck had left with the new furniture,
defendant who had
already gone to work returned home and was angry with her for having
turned away the people he had authorised
to deliver the new furniture
in exchange for the old one. Because of the fury in which defendant
was, Plaintiff believed that that
was the day on which he was going
to kill her.

She
therefore decided to go and see a lawyer. On her return to the house
she found defendant with two police officers. While she
was taking
off her uniform and removing blankets from the wardrobe so that they
might not be taken away with the furniture, defendant
warned her that
she would leave the house with nothing but the dress she was wearing.
Plaintiff then returned to her lawyer from
where she went to her
place of work to ask for a day off. From there she never returned to
the matrimonial home. She went to the
home of one of her brothers
where she stayed for over a year before renting a house in which she
was currently living. She told
the court that having stayed away from
him for so long she was afraid of defendant and no longer wanted him
to restore conjugal
rights.

According
to defendant when he decided to trade in the old furniture and buy a
new one with his own money he did inform the Plaintiff
who however
vowed that her old furniture would neverleave the house. On the day
the new furniture was to be delivered at and the
old one removed

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from the
matrimonial home,he received a report that Plaintiff had expelled the
people who had come to make delivery. Realising that
there was going
to be trouble between him and Plaintiff over the furniture,defendant
asked for the assistance of the police. So
as to avoid the
anticipated trouble two police officers were accordingly detailed to
be present at the matrimonial home when the
old furniture was removed
and the new one delivered. Defendant conceded that when she came to
the house and found the police officers,Plaintiff
went to the
bedroom. After a short while he also went into the bedroom and found
that Plaintiff, who had already removed her uniform,
was taking
blankets from the wardrobe. When he asked her what she was doing with
the blankets Plaintiff said they were borrowed
blankets and she was
taking them to their owners. He then returned to the two police
officers who were sitting in the living room.,
Shortly thereafter
Plaintiff appeared from the bedroom and said "Mothebesoane,
'Manthabiseng and you policemen Mapeshoane
and Makhakhe farewell, we
shall come to see you" whilst he was trying to figure out what
she meant by those words Plaintiff
walked out and never returned to
the matrimonial home. He denied that he had ever warned Plaintiff
that she would leave the house
with only the dress she was wearing.

Assuming
for the benefit of Plaintiff that after she had prevented the
furniture people from removing the old furniture and delivering
the
new one defendant returned to the matrimonial home and was angry with
her it is to be borne in mind that she herself conceded
that shortly
thereafte police officers were present at the home. She must have
realised, therefore, that it was unlikely that defendant
would harm
her in the presence of those police officers. Her suggestion that she
left the matrimonial home because she believed
defendant was going to
kill her on that day sounds unconvincing.

On the
evidence, it seems to me the real reason why Plaintiff left the
matrimonial home was because defendant had, without her approval,

decided to trade in the old furniture for the new one. It must,
however, be borne in mind that as Plaintiff and defendant are
admittedly

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married
in community of property the letter is the sole administrator of
their joint property. Defendant had, therefore, every right
to trade
in the old furniture for the new one if he so decided. It is simply
unacceptable in our law, that Plaintiff should be
allowed to prevent
defendant from exercising his lawful rights as the sols administrator
of the joint property.

In our
law divorce is still based on only two matrimonial wrongs viz.
adultery and desertion. In the circumstances of this case
I am not
satisfied that Plaintiff has proved desertion, be it malicious or
constructive on the part of the defendant.

Having
failed to prove either of the matrimonial wrongs it seems to me that
Plaintiff's claim for divorce ought not to succeed.
That, in my view,
disposes of the whole case for it will now be purely academic to deal
with the other points raised in the Plaintiff's
claim.

I would
accordingly dismiss this case. This being a family dispute I make no
order as to costs.

JUDGE

11th
December, 19/37.

For
Plaintiff Mr. Pheko

For
Defendant ' Mr. Seotsanyana.