Namane v Namane (CIV/T 14 of 91) [1994] LSCA 43 (3 March 1994)

1 CIV/T/14/91 IN THE HIGH COURT OF LESOTHO In the matter between PASEKA JAFTHA NAMANE Plaintiff and 'MAMORONGOE 'MANGOAJANE NAMANE Defendant JUDGMENT Delivered by the Honourable Mr Justice T Monaoathi Acting Judge on the 3rd day of March 1994 In this claim the Plaintiff asks for (a) A decree of divorce on the grounds of Defendant's adultery; (b) Custody of the two minor children, (c) Forfeiture of the benefits arising out of the marriage, (d) Further and/or alternative relief T h is action was defended On the date of hearing three w i t n e s s es were led namely the P l a i n t i f f, the Defendant and D e f e n d a n t 's f a t h e r. The e v i d e n ce that took the whole day, This was not only w a s t e f ul of the Court's time but did not just d e m o n s t r a te a correct a p p r o a ch to m a t r i m o n i al matter where a m a r r i a ge is but an empty shell It is the duty of a litigants to cut short unduly prolix p r o c e e d i n gs and to bring litigation to a speedy c o m p l e t i on It is equally in the interest of the parties and of the state to e x p e d i te l i t i g a t i on Courts ought to guard against anything tending to delay p r o c e e d i n gs I need to quote the whole p a r a g r a ph 6 of the P l a i n t i f f 's d e c l a r a t i on and the reply thereto in p a r a g r a ph 3 of the D e f e n d a n t 's plea to show how u n w h o l e s o me it is s o m e t i me for p r a c t i t i o n e rs not to strive to settle deserving m a t t e rs P L A I N T I F F 'S D E C L A R A T I ON "6 With a settled mind to terminated the said m a r r i a g e, Defendant has without r e a s o n a b le cause done the following wrongful and unlawful acts to wit (a) Some time in 1983 D e f e n d a nt committed adultery with one M O K E B E, whose further p a r t i c u l a rs are to Plaintiff u n k n o wn as a result of which a child was b o r n, and Plaintiff condoned the said a d u l t e r y; (b) On or around D e c e m b e r, 1 9 6 3, D e f e n d a nt left the matrimonial home without reasonable cause, and has despite numerous requests refused to come back to- date, (c) During this period of desertion, Defendant committed adultery with a man to the Plaintiff unknown as a result of which another child was born, and the said adultery was not condoned by Plaintiff," (my underlining) DEFENDANT'S PLEA "3. AD PARA 6 THEREOF Contents of this paragraph are denied and Plaintiff is put to the proof thereof, in as much as, (a) The said Mokebe is not known to the Defendant and the so called adulterine child has not been named, and it is not stated what happened to it, (b) In December, 1983, the Defendant left the matrimonial home because Plaintiff was not maintaining her and the children, instead Plaintiff continually assaulted the Defendant whenever he was from visiting his concubine 'MANTSOTISENG LETSIE with whom Plaintiff is now cohabiting and Defendant has not condoned that, (c) On the 23rd day of J u n e, 1987 D e f e n d a nt gave birth to an i l l e g i t i m a te child named NEO and prays the H o n o u r a b le Court to condone it is as m u ch as P l a i n t i f f 's hands are not c l e a n ." (my u n d e r l i n i n g) It b e c a me a b u n d a n t ly clear that the D e f e n d a nt ought to have adopted a d i f f e r e nt a t t i t u de when it came to hearing of e v i d e n ce to rebut the e v i d e n ce of the P l a i n t i ff But that was not to h a p p en P l a i n t i ff was not only very c o n v i n c i ng on the alleged a d u l t e ry of the child born on the 22nd June 1 9 8 7, I d e f i n i t e ly formed an o p i n i on that this other child N G O A J A NE was most p r o b a b ly a d u l t e r i ne It did not m a t t er to me how m u ch P l a i n t i ff suggested that the child belonged to a m a r r i a ge of "his f a t h e r 's c a t t le " It is to be noted that it is this c h i l d, w h i ch w h en D e f e n d a nt was pregnant w i t h, a lover of the D e f e n d a nt wrote a letter to D e f e n d a n t, i n q u i r i ng w h e t h er P l a i n t i ff had not been a w a re or had not suspected the child to be not his child ( P l a i n t i f f ' s ), but was f a t h e r ed by that m a n, ( M O K E B E) Indeed the letter was not produced in Court A family m e e t i ng was called following the incident The p a r t i es agreed to r e c o n c i l e, P l a i n t i ff says he still regarded the child as a d u l t e r i ne Anyway I did regard the a d u l t e ry as having been c o n d o n e d. I left the child in D e f e n d a n t 's custody for other good reasons As said b e f o re that the child NEO was a d u l t e r i ne this was common cause P l a i n t i ff did not have much to do to proof his case The D e f e n d a n t 's father only came to seek to prove that the Plaintiff was a w e l l - t o - do man That he had inherited a large estate with small and large stock I suppose he was called in order to influence the Court's decision of the value of the estate to be divided I was not p e r s u a d e d. Since the D e f e n d a n t 's d e s e r t i on the two of the minor c h i l d r en of the m a r r i a ge namely M O R O N G O E, a girl born on the 22nd July 1978 and M O K O N E, a boy born on the 20th M a y, 1981 have been in the custody of the Plaintiff Defendant only saw them once at school and nowhere else I believed the Plaintiff that the children were well cared for by their father I had no credible e v i d e n ce or reason to urge me to find o t h e r w i s e. This Court as an upper guardian of the minor children was satisfied that the custody of the children had for good reason to be left w i th their father the Plaintiff That it is trite that adultery is a ground for divorce in this country was not questioned It was on this basis and as found proved above that I made the following order and informed Mr Nathane for the Plaintiff and Mr. Mathafeng for D e f e n d a nt that reasons therefore would follow The decree of divorce was granted on the ground of Defendant's adultery 2. Forfeiture of the benefits of the marriage was ordered in favour of the Plaintiff 3. Custody of the minor children MOROMGOE AND MOKONE was granted to Plaintiff, Custody of the minor child NGOAJANE was granted to Defendant T MONAPATHI Acting Judge April, 1994 For the Plaintiff Mr Nathane For the Defendant Mr Mathafeng