Thamae v Thamae (CIV/T 591 of 88) [1995] LSCA 38 (14 February 1995)

CIV/T/591/88 IN THE HIGH COURT OF LESOTHO In the matter between: TUMAHOLE JULIUS THAMAE PLAINTIFF V MANKHALA LEONEA THAMAE DEFENDANT Before the Hon. Chief Justice B. P. Cullinan. For the Plaintiff For the Defendant : : Mr. H. Nathane Mr. N. Putsoane JUDGMENT - Cases referred to: (1)R v Pan der Merve (19 52)1 S. A. 647(0); (2)Van Lutterreveld v Engels (1959)2 S. A. 699(A); . (3) Murison- v Murison (1930) A. D. 157; (4) Monapathi v Monapathi C of A (CIV) No. 18 of 1 9 8 9, U n r e p o r t e d; (5) Gates v Gates (1940) N. P. D. 361; (6) Smith v Smith (1937) W. L. D. 126. . : The p a r t i es w e re m a r r i ed on 2 5 th A p r i l, 1 9 6 6. T h ey c o h a b i t ed until May 1 9 6 6, w h en the p l a i n t i ff returned to his e m p l o y m e nt on the m i n e s. A male child of the f a m i l y, T h a m ae T h a m ae was born to the d e f e n d a nt on 10th S e p t e m b e r, 1 9 6 6, as a r e s u lt c o - h a b i t a t i on b e f o re m a r r i a g e. U n f o r t u n a t e ly the child was s h o rt lived, and died on 2 0 th S e p t e m b e r, 1 9 6 6. T h e r e a f t e r, in O c t o b er 1 9 6 6, the d e f e n d a nt left the m a t r i m o n i al h o m e, that is, the h o me of the p l a i n t i f f 's m o t h e r, and n e v er r e t u r n e d. The p l a i n t i ff u l t i m a t e ly filed an a c t i on for d i v o r c e, b a s ed on m a l i c i o us d e s e r t i o n, a l m o st t w e n t y - t wo years l a t e r, in 1 9 8 8. T he d e f e n d a nt filed a plea c l a i m i ng that the p l a i n t i ff had c o n s t r u c t i v e ly d e s e r t ed h e r, in that he had a d v i s ed her to r e t u rn to her m a i d en h o m e, due to " c o n t i n u o us q u a r r e ls b e t w e en her and her m o t h e r - i n - l a w ", s a y i n g , " t h at he would f e t ch her as s o on as he found a n o t h er p l a ce of r e s i d e n c e, but up to d a te p l a i n t i ff h as not d o ne s o ". W h en it c a me to the h e a r i n g, h o w e v e r, the C o u rt w as a d v i s ed that the m a t t er w as u n c o n t e s t ed a n d, on the p l a i n t i f f 's e v i d e n c e, m a de an - order of r e s t i t u t i on of c o n j u g al r i g h t s. T h e re w as a f u r t h er d e v e l o p m e nt on the r e t u rn d a y. -3- Mr. P u t s o a n e, who had not drafted the p l e a, appeared for the d e f e n d a nt to a n n o u n ce that the d e f e n d a nt had i n f o r m ed him that, c o n t r a ry to her p l e a, in w h i ch she had admitted the p l a i n t i f f 's claim that " T h e re are no children born of the said m a r r i a g e ", a n o t h er child had in fact been born of the m a r r i a g e. The p l a i n t i ff had sought an order of f o r f e i t u r e, so the Court proceeded to hear e v i d e n ce adduced by both p a r t i es on the a s p e c ts of the children of the m a r r i a ge and the d i v i s i on of the m a t r i m o n i al e s t a t e. The aspect of d i v o r ce itself remained u n c o n t e s t ed and the C o u r t, after e v i d e n ce from the p l a i n t i ff of n o n- r e s t o r a t i on of conjugal r i g h t s, granted him a decree of divorce on the ground of the d e f e n d a n t 's m a l i c i o us d e s e r t i o n. The d e f e n d a nt c l a i m e d, in her e v i d e n c e, that a further male child of the m a r r i a g e, M a l e f a ne P a u l us T h a m a e, was born to her on 11th D e c e m b e r, 1971. The p l a i n t i ff testified that he had never c o - h a b i t ed with the d e f e n d a nt or had sexual i n t e r c o u r se with her after he had returned to the m i n es in M a y, 1 9 6 6, and that the said child was not his child. He testified that the d e f e n d a nt never told him about her second c h i l d, that he did not -4- know the c h i l d 's n a me and that, he had learnt of the b i r th from the d e f e n d a n t 's b r o t h e r, M a k o t o k o, who also w o r k ed on the m i n e s, s o m e t i me in 1 9 7 2. It was n o t, i n c i d e n t a l l y, the p l a i n t i f f 's c a se that he had never seen the d e f e n d a nt a f t er 1 9 6 6: he testified, that in those days he w as g r a n t ed leave from the m i n es at i n t e r v a ls of two y e a rs and that a c c o r d i n g ly he met the d e f e n d a nt on his r e t u rn to L e s o t ho in 1 9 6 7, 1969 and in 1 9 7 1. That was his u l t i m a te p o s i t i o n, h o w e v e r. I n i t i a l l y, in his e v i d e n ce in c h i e f, he t e s t i f i ed that the r e t u r n ed to L e s o t ho " t o w a r ds the end of 1 9 6 7 ", no m o re than t h a t. In c r o s s - e x a m i n a t i on he r e c a l l ed that he also " m a ke a point of c o m i n g" to L e s o t ho in 1 9 7 2, a f t er the report from the d e f e n d a n t 's b r o t h er of the birth of the d e f e n d a n t 's c h i l d, w h en he v i s i t ed her p a r e n ts in o r d er to v e r i fy such b i r t h. It w as put to him that he had a l so r e t u r n ed to L e s o t ho in 1969 and a g a in in 1 9 7 1: he could not r e m e m b er if he had r e t u r n ed in 1 9 69 and he d e n i ed r e t u r n i ng in 1 9 7 1. He d e n i ed c o m m u n i c a t i ng with the p l a i n t i ff since 1 9 6 6. He s t a t ed h o w e v er that "I met her p a r e n t s. I d i d n 't meet her p h y s i c a l ly e x c e pt once w h en she w as w i th her p a r e n t s. T h en he c o n c e d ed "On the -5- second occasion I met her at a Local Court". After an adjournment, he conceded that after he had gone to the defendant's maiden home in 1967, he had again met her in 1969 "at the Chief's p l a c e ". While he had testified that he got leave every two y e a r s, he again denied that he had come to Lesotho in 1971. With the next question, however, he conceded, " In 1971 I came in February only for a week, and my boss wanted me to come back quickly." Then he added, "I just came home for a few days and went back." That contrasted with his evidence, in r e- . examination, that, "After each 24 months I used to get two or three months l e a v e ". He added however, "It used to differ. In 1967 I came home as I had asked for some few days from work. In 1971, I came home as I had just asked for a week from work." -6- The d e f e n d a n t 's p o s i t i on was put to the p l a i n t i f f, but he r e p e a t e d ly denied that he had c o h a b i t ed with the d e f e n d a nt during April and May 1971 at L n k h a l o a n e ng in M a s e ru or that he was the father of the d e f e n d a n t 's second c h i l d. T he d e f e n d a nt testified that she met the p l a i n t i ff twice in 1 9 6 7, o n ce at M o t s e k u oa and once when he came to her m a i d en home at B o l e k a. On the latter o c c a s i on he asked her m o t h er to r e l e a se the d e f e n d a nt to him, but her mother r e q u e s t ed him to first f e t ch his mother and s i s t e r, w i th whom the d e f e n d a nt had q u a r r e l l e d. The plaintiff d e p a r t ed but did not r e t u r n. In 1969 the p a r t i es a g a in met t w i c e, the d e f e n d a nt t e s t i f i e d. T he p l a i n t i ff o n ce again c a me to her m a i d en h o m o, o n ce a g a in r e q u e s t i ng his w i f e 's r e t u r n, saying that his m o t h er was s i c k. T he d e f e n d a n t 's m o t h er refused his r e q u e st and the d e f e n d a nt h e r s e lf c h o se not to r e t u rn with h i m, w h i ch latter e v i d e n c e, i n c i d e n t a l l y, served to confirm the a s p e ct of d e s e r t i o n. The d e f e n d a nt testified- further that their second m e e t i ng in 1969 took place at the Local C o u r t, w h e re she had instituted a claim for m a i n t e n a n c e. -7- In 1 9 7 0, the d e f e n d a nt t e s t i f i e d, she left her maiden home for M a s e r u, w h e re she found work in a shop at L e k h a l o a n e n g. T h e re she rented a room in a house owned by one T s e l i s o. Her brother K h a t h a so also Look lodgings in the same h o u s e. T h e re she was joined by the p l a i n t i f f, w h i le on biennial leave, in March 1 9 7 1. She testified that the p l a i n t i ff had been informed of her w h e r e a b o u ts by her brother M a k o t o k o. The plaintiff wanted her to return to the m a t r i m o n i al h o m e, but she refused saying "he should first bring his m o t h e r ". He offered to take her to other than his m o t h e r 's h o m e. To this she a g r e e d, s a y i ng n o n e t h e l e ss that "he should go back and p r e p a r e ", b u t, she t e s t i f i e d, " t he case is still awaiting his m o t h er and s i s t e r ". N o n e t h e l e s s, as he had said that "We should m a ke p e a c e ", and that he wished "to c o n s o le m e, since he had not seen me for a long time due to his mother and s i s t e r ", she " a c c e p t ed his offer of p e a c e" and cohabited with him again at L e k h a l o a n e n g. -8- She testified that the p l a i n t i ff stayed with her at L e k h a l o a n e ng from a d a te near the end of M a r c h, 1 9 7 1, t h r o u gh A p r i l, to May 1 9 7 1, w h en he returned to the m i n e s. During that t i m e, they shared the same bed and had s e x u al i n t e r c o u r se on a regular and frequent b a s i s. She recalled that she must h a ve c o n c e i v ed in A p r i l, as she failed to m e n s t r u a te t o w a r ds the end of that m o n t h. She informed the p l a i n t i ff of this aspect and indeed he a c c o m p a n i ed her on a s u b s e q u e nt visit to the d o c t o r, the latter a p p a r e n t ly c o n f i r m i ng the p r e g n a n c y. In any e v e n t, the p l a i n t i f f, she t e s t i f i e d, was aware of her p r e g n a n cy when he r e t u r n ed to the mines t o w a r ds the end of May 1 9 7 1. She met him a g a in in June 1971 "at the bus s t o p ", a p p a r e n t ly in M a s e r u, when she was " v i s i b ly p r e g n a n t ". She did not m e et the p l a i n t i ff a g a in in 1 9 7 1. A m a le child w as born to her from that p r e g n a n cy on 11th D e c e m b e r, 1 9 7 1, and he was named M a l e f a ne P a u l us T h a m a e. The first two n a m e s, being Thamae family n a m e s, were supplied by the d e f e n d a n t 's mother and the l a t t e r 's u n c le E d w a r d, w h en the d e f e n d a n t 's b r o t h er K h a t a so visited them to i n f o rm them of the b i r t h. The n a m es w e re w r i t t en on a piece of p a p er a d d r e s s ed to the d e f e n d a n t 's -9- m o t h e r. S u b s e q u e n t ly the p l a i n t i f f 's m o t h er p e r f o r m ed c u s t o m a ry r i t es upon the n e w ly born c h i l d, that i s, at the d e f e n d a n t 's m a i d en h o me at B o l e k a, even though s u ch rites are u s u a l ly p e r f o r m e d, it s e e m s, at the home of the p a t e r n al g r a n d p a r e n t s. In this r e s p e ct the d e f e n d a nt t e s t i f i ed that such r i t es had also been p e r f o r m ed at her m a i d en h o me in r e s p e ct of her f i r s t - b o rn child. S he t e s t i f i ed f u r t h e r, as to c u s t o m a ry r i t e s, that M a l e f a ne had stood over the g r a ve at the burial of his g r a n d m o t h e r, that i s, the p l a i n t i f f 's m o t h e r. It, w as put to the d e f e n d a nt that the f a m i ly had not a l l o w ed M a l e f a ne to p o ur soil as custom d e m a n d s: the d e f e n d a nt t e s t i f i e d, h o w e v e r, that this w as s o, as M a l e f a ne w as only a g r a n d c h i l d, and a n o t h er c h i ld had b e en n o m i n a t ed to r e p r e s e nt the c h i l d r en in the m a t t e r. D e s p i te all t h i s, the d e f e n d a nt t e s t i f i ed that the p l a i n t i ff n e v er r e t u r n ed to h er a f t er May 1 9 7 1, and that he had n e v er m a i n t a i n ed the child M a l e f a n e. For that m a t t e r, he did not m a i n t a in h e r. S he had sued him for m a i n t e n a n ce in 1969 b o th in C h i ef S e e i s o 's court and in the L o c al C o u r t, as he w as h o me on l e a ve at the time and she w as a w a re of his p h y s i c al a d d r e s s. She failed to sue -10- him for the m a i n t e n a n ce of M a l e f a ne as she w as n ot s u p p l i ed w i th his a d d r e ss by h is f a m i l y, w h i le he w as on the m i n e s. She t e s t i f i ed i n d e ed that the p l a i n t i f f 's m o t h er w as u n a b le to s u p p ly the a d d r e s s, as the l a t t er m a i n t a i n ed that the p l a i n t i ff w as not w r i t i ng to h e r. It w as put to the d e f e n d a n t, of c o u r s e, that her plea h ad m a de no m e n t i on of the c h i ld M a l e f a n e. She r e p l i ed t h at she had i n f o r m ed L e g al A id C o u n s el of this a s p e c t, the plea h a v i ng been d r a wn up s o me y e a rs ago by o t h er than Mr. P u t s o a n e. T he d e f e n d a nt c a l l ed her b r o t h er K h a t a so as a w i t n e s s. He c o r r o b o r a t ed h er e v i d e n ce as to c o h a b i t a t i on w i th the p l a i n t i ff in M a r c h / A p r i l / M ay 1 9 7 1, as he a l so lodged in T s e l i s o 's h o u s e. T h e re w as one s i g n i f i c a nt d i f f e r e n ce h o w e v e r: it w as h is e v i d e n ce that T s e l i s o 's h o u s e, w h e re the p a r t i es c o - h a b i t ed and he r e s i d e d, w as at B o r o k h o a h e ng in M a s e r u. . He t e s t i f i ed that the p l a i n t i ff had i n f o r m ed h im of the d e f e n d a n t 's p r e g n a n c y. H is e v i d e n ce as to d a t es w as s o m e w h at c o n f u s e d, d i f f e r i ng from that of the d e f e n d a n t 's in p l a c e s: he t e s t i f i ed for e x a m p le that the p l a i n t i ff had d e p a r t ed in A p r il 1 9 7 1. But t h en I w o u ld not e x p e ct h is e v i d e n ce to tally e x a c t ly -11- with that of the d e f e n d a n t. Quite c l e a r l y, it did not tally when it came to their p l a ce of r e s i d e n c e: in this respect he m a i n t a i n ed that he worked in the same shop as the plaintiff in L e k h a l o a n e n g, but that they both resided at B o r o k h o a n e n g, which a p p a r e n t ly is not a d j a c e nt to L e k h a l o a n e n g. In this r e s p e ct a l s o, a n o t h er w i t n e ss for the d e f e n d a n t, P o l i c e w o m an Mary M o e k e t s i, testified that she had first met the p a r t i es in 1984 and in p a r t i c u l ar she had met the d e f e n d a nt and her child. M a l e f a n e, "at her (the d e f e n d a n t " s) home in B o r o k h o a n e n g ". The w i t n e ss herself was a n e i g h b o ur of the d e f e n d a n t, residing at B o r o k h o a n e n g. As to the r e g i s t r a t i on of the birth of M a l e f a n e, the d e f e n d a nt testified that "I registered the c h i l d 's birth at Q . E. II H o s p i t a l" in M a s e r u. "The c e r t i f i c a te is at h o m e ", she a d d e d, "I can p r o d u ce it, even t o - d a y ". A p p a r e n t ly the r e g i s t r a t i on there referred was an a d m i n i s t r a t i ve r e g i s t r a t i on for the p u r p o s es of the Q u e en Elizabeth II H o s p i t a l. A g a i n, the c e r t i f i c a te referred to was a p p a r e n t ly a b a p t i s m al c e r t i f i c a t e, w h i ch w as examined by both C o u n s el that a f t e r n o o n, but was not produced in e v i d e n c e. In any e v e n t, it seems that there -12- had b e en no s t a t u t o ry r e g i s t r a t i o n, as n i ne d a ys l a t er a b i r th c e r t i f i c a te w as p r o d u c ed in e v i d e n c e, w h i ch h ad b e en m a de but two d a ys e a r l i e r, i n d i c a t i ng that the b i r th had b e en r e g i s t e r ed on t he s a me d a y, that i s, s e v en d a ys a f t er t he d e f e n d a nt h ad c o n c l u d ed h er e v i d e n c e. T he c e r t i f i c a te i n d i c a t es t h at M a l e f a ne P a u l us w as b o rn of the d e f e n d a nt on 1 1 th D e c e m b er 1 9 71 at Q u e en E l i z a b e th i H o s p i t a l, the f a t h e r 's n a me b e i ng r e c o r d ed as that of t he p l a i n t i f f. T he d e f e n d a n t, h o w e v e r, is r e c o r d ed as b e i ng the i n f o r m a n t. As t he b i r th w as r e g i s t e r ed m o re t h an a y e ar a f t er the b i r th ( s ee s e c t i on 15 of the R e g i s t r a t i on of Births and Deaths A c t, 1 9 7 3) the d e f e n d a nt w as r e q u i r e d, as a r o u t i ne a d m i n i s t r a t i ve r e q u i r e m e n t, to s w e ar an a f f i d a v it in t he m a t t e r. N o n e t h e l e s s, t he c e r t i f i c a te is but prima f a c ie e v i d e n ce of its c o n t e n ts ( s ee s e c t i on 13 of t he A c t) a nd t a k es the c a se no f u r t h er t h an t he e v i d e n ce b e f o re t he C o u r t. I n d e e d, t he f a ct that t he d e f e n d a nt w a i t ed s o me 20 y e a rs to r e g i s t er t he b i r t h, m u st m i l i t a te a g a i n st h e r. As a g a i n st t h a t, t he b i r th of the c h i ld w as a d m i n i s t r a t i v e ly r e g i s t e r ed at t he H o s p i t al and b o th C o u n s el i n f o r m ed the C o u rt t h at t h e re is a b a p t i s m al c e r t i f i c a te in e x i s t e n c e, but the C o u rt h as no k n o w l e d ge in e i t h er c a se as to w h o se n a me w as was supplied as being that of the father of the child. -13- Three other u n s a t i s f a c t o ry aspects arise in the defendant's e v i d e n c e. There is the aspect that her pleadings, as I have said, are contrary to the case she now wishes to p r e s e n t. While her evidence in the m a t t er is not supported, the point is that she now a p p e a rs before the Court and testifies that the plaintiff is the father of her child. A g a i n, there is the contradiction between the evidence of the d e f e n d a nt and her brother as to the location of the c o - h a b i t a t i on between her and the plaintiff in 1 9 7 1. In this respect she testified: " In 1970 I came to Maseru for w o r k. I found work at L e k h a l o a n e n g. I was working in a shop. I lived at the r e s i d e n ce of one T s e l i s o. I never met the plaintiff in 1 9 7 0. In 1971 we met in M a r c h. I met the plaintiff at Lekhaloaneng where I stayed. We stayed together until I had this child Malefane T h a m a e ." -14- T he d e f e n d a nt e x p l a i n ed that by the word "had" s he had m e a nt " c o n c e i v e d ". In any e v e n t, the p a s s a g es q u o t ed i n d i c a te that she b o th w o r k ed and r e s i d ed at Lekhaloaneng at the t i m e. ft m ay be that the p l a i n t i ff did not c o n s i d er it n e c e s s a ry to d i f f e r e n t i a te b e t w e en her place of w o rk and p l a ce of r e s i d e n c e. It m ay b e, h o w e v e r, that she s u b s e q u e n t ly m o v ed to B o r o k h o a n e n g, w h e re P o l i c e w o m an M o e k e t si m et her in 1 9 84 and thus it may be that the e v i d e n ce of the d e f e n d a n t 's b r o t h er K h a t a so is c o n c o c t e d, that i s, as to his p r e s e n c e, and that he p l a c ed the c o h a b i t a t i on at B o r o k h o a n e n g, as that at one s t a ge w as the d e f e n d a n t 's h o m e. E v en if the d e f e n d a n t 's b r o t h er is l y i n g, h o w e v e r, that d o es not n e c e s s a r i ly m e an that the d e f e n d a nt h e r s e lf is l y i n g. A f u r t h er a s p e ct is that of the d u r a t i on of the p r e g n a n c y. The d e f e n d a nt was q u i te e m p h a t ic that M a l e f a ne w h en born w as ' f u l l - t e r m '. S he m a i n t a i n ed indeed that both her c h i l d r en w e re full term. S he t e s t i f i e d: "I reckon I conceived in first week of A p r i l. I went over 8 m o n t h s. [Malefane w a s] born in the 9th month. -15- T h a m ae the first child was full term - normal w e i g h t. Malefane Paulus was a big baby. He wasn't underweight." Assuming that M a l e f a ne was full-term, that would place conception early in M a r c h, rather than A p r i l, 1 9 7 1. It may be, however, that some 20 years later., the . defendant cannot give exact e v i d e n ce as to such m a t t e r s, It may be, for e x a m p l e, that she met the plaintiff in February, when he himself says he was in L e s o t h o, rather than M a r c h. In any event, those are the unsatisfactory a s p e c ts in the defendant's e v i d e n c e. But what of the evidence of the plaintiff? He was clearly evasive as to his m o v e m e n ts to and from L e s o t h o. In particular he at first continued to deny that he had come to Lesotho in 1 9 7 1, until forced in c r o s s - e x a m i n a t i on to admit that he had. In this respect his e v i d e n ce of taking only a w e e k 's leave or "a few d a y s" leave in 1 9 7 1, is i n c o n s i s t e nt w i th his e v i d e n ce of two or t h r ee m o n t h s' b i e n n i al l e a v e. -16- T he point is that the p l a i n t i f f, even on his own e v i d e n c e, pursued the d e f e n d a nt on his annual leave in 1967 and a g a in 1 9 6 9. He had not d e s e r t ed h e r; she had d e s e r t ed him and c l e a r ly s h e, then, in 1 9 7 1, aged 28 y e a r s, w as still a t t r a c t i ve to him, aged 33 y e a r s. It is only n a t u r al to e x p e ct t h e r e f o re that he would a g a in p u r s ue her on his a n n u al leave in 1 9 7 1. She was then r e m o v ed from her m a i d en h o mo and her m o t h e r 's i n f l u e n ce and s u p e r v i s i on and if he failed to e n t i ce her b a ck to his h o m e, it would not be s u r p r i s i ng that he might w i sh to s p e nd his leave from the m i n es in t he company of his wife at her l o d g i n g s. T he point is a g a in that there is no e v i d e n ce that the d e f e n d a nt ever g a ve birth to other than the two c h i l d r en T h a m ae and M a l e f a n e. It is surely then a c o i n c i d e n ce that in t w e n t y - f i ve y e a rs of s e p a r a t i on from the p l a i n t i f f, she g a ve b i r th to only one c h i l d, M a l e f a n e, whose c o n c e p t i on took place at a time w h en the p l a i n t i ff was on b i e n n i al leave in L e s o t h o. /... -17- in and that p a r t i c u l ar d e m o n s t r a t i ng It was the d e f e n d a nt t h r ee T h e re is again the a s p e ct of the. child's n a m e s, d e m o n s t r a t i ng a link with the plaintiff and his family, the defendant had m a i n t a i n ed ab initio that the p l a i n t i ff w as w ho the father of her c h i l d. deserted the p l a i n t i ff in 1 9 66 and did not wish to r e t u rn to him. I imagine that if it w as the case t h a t, five years l a t e r, she had g i v en b i r th to another man's c h i l d, she would not wish to g i ve the child the p l a i n t i f f 's name, but rather her o wn m a i d en n a m e, or the name of the p u t a t i ve father. Instead of that we have the e v i d e n ce that M a l e f a ne a t t e n d ed the funeral of the p l a i n t i f f 's m o t h e r. I can well u n d e r s t a nd that he was not allowed to pour s o i l, as p l a i n ly the p l a i n t i ff did not w i sh to a c k n o w l e d ge p a t e r n i t y. N o n e t h e l e s s, the very p r e s e n ce of M a l e f a ne at the g r a v e s i de and his very wish to pour s o i l, d e f e n d a n t 's is i n d i c a t i ve of the c o n s i s t e n cy of the position throughout. It was the plaintiff's own evidence that he "made a point of r e t u r n i n g" to L e s o t ho in 1 9 7 2, to v e r i fy the birth of M a l e f a n e. T h at I c o n s i d er would have b e en somewhat u n u s u al b e h a v i o ur if the d e f e n d a n t, a w i fe -18- e s t r a n g ed and s e p a r a t ed for over five y e a r s, had g i v en b i r th to a n o t h er m a n 's c h i l d. If the p l a i n t i ff was so c o n c e r n ed with such a d u l t e r y, why then did he wait s o me s e v e n t e en y e a rs b e f o re f i l i ng suit for d i v o r ce and in p a r t i c u l a r, why did he not a l l e ge a d u l t e ry in h is p l e a d i n g s? Mr. N a t h a ne s u b m i ts that that was a m a t t er . w i t h in the d i s c r e t i on of the p l a i n t i f f. Of that there is no d o u b t. But it w as c l e ar all along to the p l a i n t i ff that the d e f e n d a nt m a i n t a i n ed that M a l e f a ne was his c h i l d. The p r e s u m p t i on of l e g i t i m a cy a p p l i e d, and the onus w as clearly u p on the p l a i n t i ff to d i s p r o ve l e g i t i m a c y, and in that e v e nt to f r a me his p l e a d i n gs a c c o r d i n g l y. The s u g g e s t i on then a r i s e s, that the p l a i n t i ff at a d i s t a n ce on the m i n es in S o u th A f r i c a, w i s h ed to evade h is r e s p o n s i b i l i ty in respect of M a l e f a n e, and that he d e l a y ed s e v e n t e en y e a rs in f i l i ng a c t i o n, as he did not w i sh to give r i se to such a s p e c ts b e f o re the Court and h e n ce w h en he did file, a c t i on it bore no r e f e r e n ce to any a l l e g ed a d u l t e r y. It will be s e en t h e r e f o re that there a re i n c o n s i s t e n c i e s, in the e v i d e n ce for b o th p a r t i e s. W h en it c o m es to c r e d i b i l i t y, I c o n s i d er that the d e f e n d a nt -19- fared better than the p l a i n t i f f, who as I have said was plainly evasive and c o n t r a d i c t o ry in places. But I do not see that that is the ultimate test. At the end of the d a y, as I have said, the onus lies upon the plaintiff, on a balance of p r o b a b i l i t i e s, to disprove legitimacy (see e.g. R v Kan der Merwe (1) and Kan Lutterveld v Engels ( 2 ). That being the case, 1 am not satisfied that M a l e f a n e 's birth was other than legitimate. 1 have not been asked for a declaration in the m a t t e r. Suffice it to say that 1 find that the child Malefane Paulus T h a m a e, born of the defendant on 11th December, 1971, that is, conceived and born in lawful wedlock is the legitimate son of the plaintiff. I turn then to the aspect of forfeiture. There is a prayer for such in the statement of claim and the Court has no discretion in the matter (Murison v Murison (3) at p. 1 6 1 ). Accordingly I order that the defendant forfeit the benefits of the m a r r i a g e. W h en it comes to f o r f e i t u r e, there was no evidence of the three valuations referred to by the Court of Appeal in Monapathi v M o n a p a t hi (4) per Schutz P. at p . 6. /../.. -20- Clearly the p l a i n t i ff w as chiefly to blame for this s i t u a t i o n, as he a d d u c ed no e v i d e n ce w h a t e v er in chief as to the m a t r i m o n i al e s t a t e. T he d e f e n d a nt testified that the p l a i n t i ff had a c q u i r ed some l i v e s t o ck before they s e p a r a t e d, and tried u n r e a l i s t i c a l ly and u n n e c e s s a r i ly to persuade the Court that the identical l i v e s t o ck and their progeny were still in e x i s t e n ce 25 y e a rs later. In any event n e i t h er party put a ny v a l ue on the c o n t e n ts of the m a t r i m o n i al e s t a t e. T he p l a i n t i ff claimed that when the d e f e n d a nt d e p a r t ed in O c t o b e r, 1 9 6 6, she took m a t r i m o n i al property with h e r. He w as on the m i n es at the time. H is s i s t e r, M r s. M a m a b o l a o a ne T s o b o, w as present in the m a t r i m o n i al home at the t i m e, and she testified that the d e f e n d a nt on two o c c a s i o ns removed p r o p e r t y: she carried the p r o p e r t y, h o w e v e r, on her head and M r s. T s o b o 's e v i d e n ce i n d i c a t es that the d e f e n d a nt took no more than clothing and b e d d i ng and some pots and p a n s, though the d e f e n d a nt denied t a k i ng any u t e n s i l s: it.. The defendant testified that the matrimonial home contained a 3-door kitchen unit, table with 4 chairs, bed, wardrobe, lounge suite and also 8 sheep, 4 head,of cattle and 2 horses. The defendant herself testified however that -21- "All the property I have mentioned was bought by my husband. It remained behind when I left. They were his property as he used to give the money to his mother to buy them. She used to show me the money saying be had said she should buy the animals and after she had bought she used to show them to me." Again, the defendant testified that the plaintiff commenced in 1966 to build a house which he completed in 1983. The parties cohabited for no more than six months and it is the defendant's own evidence that she made no , contribution to the property purchased by the plaintiff and presumably therefore to the building materials to start the building of the house. Any property which she did bring in, namely her clothing and bedding, she subsequently removed. In the case of Gates v Gates ( 5 ), referred to in Monapathi ( 4 ), Selke J observed at pp.364/365 that it was necessary to ascertain "the value of the joint estate as it exists at the dale of the order for divorce" and the value of the contributions made respectively to the estate by each spouse. The learned Judge went on at p.365 to observe: -22- of the that value existing " I f, after such proof has been given, it appears the defendant's contributions is equal, or greater than, that of the p l a i n t i f f ' s, then there is no forfeiture in fact, and the existing estate is divided between them in equal shares, exactly as if no forfeiture had been decreed. If, on the other hand, the value of the contributions proved to have been made by, or on behalf of the plaintiff, exceeds that proved to have been made by, or on behalf of the defendant, then the forfeiture consists of half of difference between the values thus established." In the present case it can safely be said that during the first" six months of the marriage the sole contribution to the joint estate made by the defendant was the clothing and bedding which she brought to the matrimonial home. This she took away with her. Thereafter, even though the parties were separated, the Court is concerned not just with the estate in the plaintiff's possession but with the joint estate, that is, including the property in the defendant's possession, which formed part of the joint estate as at the date of /... -23- d i v o r c e. The Court has heard no evidence of any p r o p e r ty in the d e f e n d a n t 's p o s s e s s i o n. That she was able to support herself is e v i d e n t: indeed she also supported M a l e f a n e. She was e m p l o y ed during 1970 and 1971. T h e r e a f t er it seems she sold fruit, as she gave her o c c u p a t i on as a fruit s e l l er and she testified that she supported Malefane by the sale of a p p l e s. W h en it comes to the v a l ue of the c o n t r i b u t i on of each party to the joint e s t a t e, it can be said that the value of the property in the possession of, that is, owned by each party on the date of the order of d i v o r c e, r e p r e s e n ts the value of the respective party's c o n t r i b u t i on to the joint e s t a te (see smith v Smith ( 6 ) ). The practical effect of an order of forfeiture is that the guilty party r e t a i ns the value of his or her c o n t r i b u t i on to the e s t a t e, except where that c o n t r i b u t i on exceeds fifty per cent of the e s t a t e: in that event the guilty party retains no more than fifty per c e n t. Assuming for the moment that the property owned by the d e f e n d a n t " is valued at less than fifty per cent of the joint e s t a t e, it seems to me that the order of f o r f e i t u re would be s a t i s f i ed by ordering each party to r e t a in the p r o p e r ty r e s p e c t i v e ly owned by them. -24- T he truth of the m a t t er is h o w e v er that the p r o p e r ty owned by the d e f e n d a nt d o es not r e p r e s e nt her sole c o n t r i b u t i on to the m a t r i m o n i al e s t a t e. She has c o m p l e t e ly s u p p o r t ed M a l e f a n e, a child of the f a m i l y, for 21 y e a rs and indeed e d u c a t ed h i m. T h at c o n t r i b u t i on is r e p r e s e n t ed by a d i m i n u t i on in the v a l ue of the p r o p e r ty owned by h e r. To put it a n o t h er w a y, had the p l a i n t i ff s u p p o r t ed M a l e f a n e, the d e f e n d a nt w o u ld have amassed more p r o p e r t y. No doubt such a s p e ct could be dealt with by an order for p a y m e nt of a r r e a rs of m a i n t e n a n ce of M a l e f a n e. But it s e e ms to me that s u ch an o r d e r, made after 21 y e a r s, w o u ld be u n r e a l i s t i c, i n v o l v i ng e x t r e me c o m p l e x i ty of c a l c u l a t i o n. In Gates (5) S e l ke J. held at p p . 3 6 5 / 3 66 that the Court was e n t i t l ed to take the s e r v i c es of the wife in m a n a g i ng the joint h o u s e h o ld and caring for the c h i l d r en into a c c o u nt in c a l c u l a t i ng her c o n t r i b u t i on to the j o i nt e s t a t e. I cannot see that the d e f e n d a nt made any c o n t r i b u t i o n, in a m o n e t a ry s e n s e, to the m a n a g e m e nt of the joint h o u s e h o l d, over a period of only six m o n t hs in the h o me of her m o t h e r - i n - l a w. But q u i te clearly she made a s i g n i f i c a nt c o n t r i b u t i on to the joint e s t a te in -25- caring for and in the m a i n t e n a n ce of M a l e f a n e. T he d i f f i c u l ty is to a r r i ve at a p e r c e n t a ge of the value of the joint e s t a te w h i ch would r e p r e s e nt such c o n t r i b u t i o n. Doing the best I c a n, I would, a s s e ss that c o n t r i b u t i on at fifteen per cent of the value of the joint e s t a t e. The d e f e n d a n t 's c o n t r i b u t i on to the joint e s t a te is a c c o r d i n g ly r e p r e s e n t ed by the v a l ue of the p r o p e r ty owned by h e r, plus a sum e q u i v a l e nt to fifteen per cent of the said p r o p e r ty owned by the p l a i n t i f f, that i s, fifteen per cent of the joint e s t a t e. As the order of f o r f e i t u re is m a de a g a i n st the d e f e n d a n t, she is not entitled to the b e n e f i ts of the p l a i n t i f f 's c o n t r i b u t i o n: she is of c o u r se e n t i t l ed to r e t a in her own c o n t r i b u t i o n, that i s, the p r o p e r ty owned by h e r, plus an amount (or p r o p e r ty in the same v a l u e) e q u i v a l e nt to fifteen per cent of the v a l ue of the joint e s t a t e, as also r e p r e s e n t i ng her c o n t r i b u t i o n. Should the property owned by her exceed in v a l ue fifty per cent of the joint e s t a t e, the joint e s t a te shall be divided equally b e t w e en the p a r t i e s. A g a i n, w h e re the p r o p e r ty owned by her is less than fifty per cent of the joint e s t a t e, but the a d d i t i on of f i f t e en per cent of the joint estate would -26- have the effect of i n c r e a s i ng her share of the joint estate to more than fifty per c e n t, then the a d d i t i o n al sum will have to be reduced so that the d e f e n d a n t 's resultant share of the joint e s t a te shall not exceed fifty per cent. T h e re is then the aspect of the actual value of the property owned by each p a r t y, and hence the actual value of the joint e s t a t e. Not an iota of evidence was adduced on this point. Clearly it is d e s i r a b le and would, us Schutz P. observed in Monapathi (5) at p. 6, reduce c o s t s, if the parties were to agree such v a l u a t i o n s. Failing such a g r e e m e n t, h o w e v e r, I order that the property owned by each party on the date of the order for divorce be . valued by an i n d e p e n d e nt u m p i r e, the identity of such umpire to be agreed by the p a r t i e s, or, in default of such a g r e e m e n t, the u m p i re to be appointed by the C o u r t. W h en the umpire has thus a s c e r t a i n ed the value of the p r o p e r ty owned as a f o r e s a id by each party and thus the v a l ue of the joint e s t a t e, three possible s i t u a t i o ns may a r i s e, n a m e l y, where (i) each party owns fifty per cent of the joint e s t a t e, or -27- (ii) the properly owned by the defendant is valued at more than fifty per cent of the joint e s t a t e, or (iii) the property owned by the defendant is valued at less than fifty per cent of the joint estate. Those situations shall be dealt with as follows: (i) where the joint estate is thus equally divided, the parties shall each retain the property respectively owned by them; or (ii) where the property owned by the defendant is valued at more than fifty per cent of the joint e s t a t e, the plaintiff shall retain all the property owned by him and the defendant shall pay to the plaintiff such amount, or shall transfer to him such -28- p r o p e r t y, as shall have the effect of decreasing the d e f e n d a n t 's proportion of the joint estate and increasing that of the plaintiff to fifty per cent thereof; or (iii) where the property owned by the defendant is valued at less than fifty per cent of the joint estate the defendant shall retain the property owned by her and the plaintiff shall pay to the defendant such a m o u n t, or shall transfer to her such property as shall represent fifteen per cent of the value of the joint estate; provided that where such payment or transfer by the plaintiff would have the effect of increasing the defendant's share of the joint estate to more than fifty cent thereof, such payment or transfer shall be limited in extent to the effect that the defendant's resultant share of the joint estate shall be equal to fifty per cent thereof. As to costs, the plaintiff as the main breadwinner should bear them. 1 award costs to the defendant. -29- Dated this 14th Day of' February, 1995. B. P. CULLINAN CHIEF JUSTICE