Ntsoane v Ntsoane (C of A (CIV) 19 of 12) [2012] LSCA 44 (19 October 2012)

IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO.19/12 In the matter between: MOSAJA NTŠOANE APPELLANT and ‘MAMABINA NTŠOANE RESPONDENT CORAM: RAMODIBEDI, P MELUNSKY, JA SCOTT, JA : HEARD DELIVERED : 9 OCTOBER 2012 19 OCTOBER 2012 SUMMARY Husband and Wife – Divorce – The High Court granting the following relief to the respondent, as plaintiff, namely, (1) divorce on the ground of malicious desertion (2) custody of the minor child of the marriage (3) maintenance for the minor child at the rate of M1000.00 per month and (4) forfeiture of the benefits of the marriage – On appeal the order of forfeiture confirmed – The appeal against the order for maintenance upheld – The matter remitted to the Maseru Magistrate’s Court for a determination of the appropriate quantum of maintenance after hearing both parties – Each party to bear its own costs. JUDGMENT RAMODIBEDI P [1] In this appeal the appellant challenges the decision of Guni J in the High Court granting the following relief against him and in favour of the respondent, as the plaintiff, namely (1) divorce on the ground of malicious desertion (2) custody of the minor child of the marriage (3) maintenance for the minor child at the rate of M1000.00 per month and (4) forfeiture of the benefits of the marriage. [2] At the hearing of the appeal in this Court the appellant pursued only two grounds of appeal, namely:- (1) that the learned Judge a quo misidrected herself in granting a maintenance order “in the absence of sufficient evidence establishing the quantum thereof” and (2) that the learned Judge erred and misdirected herself in granting an order of forfeiture of the benefits of the marriage despite the fact that the respondent had in her evidence asked for division of the joint estate only. [3] It will be convenient to deal first with the complaint relating to forfeiture as this is, in my view, a complete non- starter and can quickly be disposed of. But before doing so it is necessary to give a brief summary of the relevant facts pertaining to the case. [4] The parties were married to each other by civil rites and in community of property on 9 September 1998. There is one minor child of the marriage, namely, Mothepane, a girl born on 20 August 1997. She was admittedly legitimated by the subsequent marriage of the parents. [5] Barely twenty (20) months after its solemnisation, the marriage apparently became so strained that the respondent instituted proceedings against the appellant for an order of separation which was granted on 21 September 2000. In December of that same year, however, the parties reconciled. They lived together until November 2005 when trouble between them surfaced once again. The pleadings are replete with accusations and counter accusations of infidelity by each party against the other. These culminated in the present proceedings which were instituted by the respondent against the appellant on 23 October 2006. [6] After a largely unexplained long delay, the matter finally proceeded before Guni J in the appellant’s absence on 29 October 2009. The learned Judge issued a restitution order on the same day. [7] Quite strangely, in my view, there was a further unexplained delay of almost three (3) years until 18 May 2012 when the matter resumed before the learned Judge a quo. In the meaintime, on 11 November 2009, the appellant had filed an affidavit in which he deposed to having attempted to restore conjugal rights. Importantly, the record shows that the appellant was not before court on 18 May 2012. His counsel, Adv Thulo, who is also counsel of record in this Court, appeared on his client’s behalf. The respondent led her entire evidence in the absence of the appellant. In these circumstances counsel was, as he said, unable to cross-examine the respondent. He is recorded as having made the following submission to the learned Judge a quo, quoted verbatim:- “DC: Well my Lady in view of the fact that may I put it on record that my efforts to try to find my client have failed as such I am in no position to cross-examine this witness not that I don’t have any cross- examination but I am not in a position now. HL: Declined. Ok yes Mr Sepiriti.” Adv Sepiriti, counsel for the plaintiff who is also her counsel in this Court, was then allowed to make final submissions in the matter. Adv Thulo was not given such opportunity. The learned Judge then granted the respondent an order of divorce with the ancillary relief as fully set out earlier. [8] It is necessary to stress that the very long unexplained gap of three (3) years between the restitution order and the final return day when the learned Judge a quo disposed of the matter in the absence of the appellant is in my view sufficient proof on a balance of probabilities that Adv Thulo had lost contact of his client. It would, therefore, work an injustice to let prejudicial orders against the appellant to stand in these circumstances. But I must point out at once that an order of forfeiture of benefits in this case stands on a different footing. I proceed then to deal briefly with this aspect of the matter. FORFEITURE OF BENEFITS [9] The legal position under the common law, as I have always conceived it to be, is that forfeiture of benefits in a divorce for misconduct follows automatically if claimed by the plaintiff. See, for example, Harris v Harris 1949 (1) SA 254 (A); Phutheho Mahase v ‘Mamahooana Mahase C of A (CIV) 38/2010 (unreported). This is such a case. The respondent, as plaintiff, was therefore entitled to a forfeiture order. This Court cannot change that order which must be confirmed. MAINTENANCE [10] As is evident from the foregoing summary of facts, it is not in dispute that the learned Judge a quo granted a maintenance order against the appellant in his absence. In the event, there was no proper determination of the appropriate quantum of maintenance. The court a quo only had the respondent’s version before it. This, through no fault of the appellant since there is no evidence on record that he was aware of the notice of set down after a delay of three (3) years as mentioned earlier. Although Adv Sepiriti initially urged the Court to determine the quantum of maintenance on the record as it stood at the hearing in this Court, he very fairly and properly conceded, in my view, that the matter be remitted to the Magistrate’s Court, a proposition which Adv Thulo gladly accepted. [11] In the result the following order is made:- (1) The appellant’s appeal against the court a quo’s order of forfeiture is dismissed. That order is confirmed. (2) The appeal against the order for maintenance is upheld. The order of the court a quo is set aside. (3) By consent the question of maintenance is remitted to the Maseru Magistrate’s Court for determination of the appropriate quantum of maintenance after hearing both parties. (4) Each party shall bear its own costs. __________________________________________ M. M. RAMODIBEDI PRESIDENT OF THE COURT OF APPEAL I agree: I agree: ______________________________ L. S. MELUNSKY JUSTICE OF APPEAL ____________________________ D. G. SCOTT JUSTICE OF APPEAL For the Appellant For the Respondent Adv P. R. Thulo : : Adv R. A. Sepiriti