IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) N0.32/2009
In the matter between:
‘MANTSELI MATEKANE ..............................................APPELLANT
PUSETSO MATEKANE …..........................................RESPONDENT
CORAM: RAMODIBEDI, P
HEARD: 13 OCTOBER 2010
DELIVERED: 22 OCTOBER 2010
Husband and wife – Divorce – Constructive desertion – Not a ground for outright decree of divorce – The guilty party granted divorce as against the innocent party – Appeal upheld with costs.
 The appellant in this appeal challenges the correctness of a decision of the High Court granting divorce to the respondent on what the learned Judge a quo termed a “new form of constructive desertion.” If I may say so with respect at this stage, it is a bizarre decision in which the guilty party was granted a decree of divorce in the first place. This, in circumstances where he had not even prayed for restitution of conjugal rights, seemingly as a mark of his determination to sever the marital bond subsisting between the parties. A restitution order was issued by the court mero motu.
 The respondent, as plaintiff, issued summons against the appellant, as defendant. He sought relief in these terms:-
“(a) A decree of divorce on grounds of defendant’s
(b) Custody of the minor children be awarded to Plaintiff
with reasonable access by defendant;
(c) That Defendant be awarded the matrimonial home
and household property whilst Plaintiff should be
awarded Isuzu Van Registration No. C 9204, a Taxi
Registration No. CF 124, and two undeveloped
residential sites at Ha Thetsane and Hlotse
Costs of suit in the event of opposition hereof;
Further and/or alternative relief.”
 As can be seen from the respondent’s prayers for relief, he omitted to include a prayer for restitution of conjugal rights. In my view, this omission was by design as I shall endeavour to demonstrate shortly. This conclusion is inexorably supported by at least two factors:-
In his evidence in chief at the trial the respondent, testifying as PW1, tersely expressed his opposition to the appellant’s restitution of conjugal rights in the following terms:-
“PC: I want you to tell the court, is it your evidence that since April 2007 to date both of you have not enjoyed conjugal rights from one another?
PW1: No my Lady, I am now afraid.”
Elsewhere in the record of proceedings the respondent said the following:-
“PW1: Being forced or not forced by this court I do not want to stay with ‘Mantseli (the appellant).
HL: The court cannot force you to live with a person you don’t like.”
In paragraph 4 of his affidavit of non-return the respondent once against expressed his non-preparedness to accept the appellant’s restitution of conjugal rights. He said this:-
“I have read and understood Affidavit of Return filed by Defendant and verily aver that Defendant has misled this Honourable Court when she says she has restored conjugal rites (sic) to me because she has not even attempted to do so because she knows that I would not agree to do so as I had made my point clear during my evidence and under cross examination. She does not even say on what date she did what after service of the order nothing has changed.” (Emphasis supplied.)
 In his submissions in this Court Adv. Makholela for the respondent sought to justify the latter’s failure to include a prayer for restitution of conjugal rights on Rule 42(1) of the High Court Rules 1980. This Rule provides as follows:-
“42. (1) In any action for the restitution of conjugal rights the plaintiff may in the alternative claim a decree of divorce.”
In my view, this Rule does no more than restate the basic common law principle based on public policy that it is the policy of the courts to uphold the sanctity of marriage by ordering restitution and not an outright decree of divorce. In this regard, I am mainly attracted by the following remarks of Hoexter JA in Belfort v Belfort 1961 (1) SA 257 (A) at 259:-
“The second consideration is that the granting of a divorce is a matter of public policy and that the policy of the Courts is to uphold the sanctity of marriage and not lightly to put an end to what is the very foundation of the most important unit of our social life, the family. (see Daniels v Daniels, 1958 (1) S.A. 513 (A.D.) at p 532). It is for this reason, too, that the orbit of the doctrine of constructive desertion should not be extended.”
As can be seen, this principle was overlooked by both the respondent and the court a quo. In recognition of this principle a divorce action on the ground of malicious desertion consists of two actions rolled into one, namely, (1) a prayer for restitution of conjugal rights and failing
compliance by the defendant (2) a decree of divorce on the ground of defendant’s malicious desertion.
 Interestingly, the very reason why we are sitting on this appeal is because the Judge a quo extended the orbit of the doctrine of constructive desertion. In my book she erred in doing so. In this regard she said the following in her judgment:-
“W.C.M. Maqutu in his book, Contemporary Family Law of Lesotho 1992 p.255 in explaining what constructive desertion may mean say (sic), it is where
“one spouse performs acts that would reasonably torture the other spouse either physically or emotionally.” (my own emphasis)
The standard of education of the Defendant seems to have tortured the Plaintiff emotionally and has not been able to hide that fact.
I would therefore grant divorce on account of this new form of constructive desertion by the Defendant. I must say it has not been easy for this Court to come to this decision, but on considering the surrounding circumstances of this case and the end results if divorce was not granted, I realized that granting divorce was the right decision and the best.
I would therefore wish to be addressed on the questions of custody of the minor children, maintenance and the joint estate.”
 It is trite that our common law recognises only two grounds of divorce, namely (1) adultery and (2) malicious desertion. It follows that the court a quo was wrong to grant divorce on a non-existent ground of constructive desertion. It has no power to create a new ground as it purported to do. That function is reserved for the Legislature.
 The divorce order granted by the court a quo is bad for another reason. As indicated earlier, a decree of divorce was granted to the guilty party as against the innocent party. In her own words the Learned Judge a quo said the following in her judgment:-
“In casu, it has been clear from the evidence that Plaintiff is the one who is frustrating all efforts to save their marriage. He is the guilty party. He had based their marriage on education because he happened to be educated. As I said earlier on in this judgment he fell for the Defendant well aware that she was a Form C standard. He continued making children with her being well aware of that fact and even entered into marriage with her. There has been nothing wrong or bad that the Defendant has done save failing her Form D class and Plaintiff frustrating her efforts for attending afternoon classes by not paying for her fees. He was doing all these to the mother of his four children.
Plaintiff wants to have his cake and eat it. He is the guilty spouse and want to benefit from that and leave the innocent spouse frustrated and miserable. Plaintiff has no grounds for divorce, he is only just feeling too important over his wife.
It took me some time to decide on whether to grant or refuse divorce because the one asking for divorce is the guilty party.”
 It appears from her judgment that the real reason why the Learned Judge a quo granted divorce had to do with the perceived plight of the children of the marriage in the event of the marriage being allowed to subsist. She felt that the children “might develop a negative attitude towards marriage as a whole.” With respect, these considerations do not constitute grounds of divorce in our law.
 In the light of these considerations I am satisfied that the appeal should succeed. Accordingly, the following order is made:-
The appeal is upheld with costs.
The order of the court a quo is set aside and
replaced with the following:-
“(1) The plaintiff’s claim is hereby dismissed with costs.”
PRESIDENT OF THE COURT OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
For the Appellant: Adv. P.V. Tšenoli
For the Respondent: Adv. L.T. Makholela