IN
THE HIGH COURT OF SWAZILAND
CASE
NO. 1479/03
JABULANI
MASEKO PLAINTIFF
AND
SITHEMBA
PORTIA MASEKO DEFENDANT
CORAM
K.P. NKAMBULE –J
FOR
PLAINTIFF MR. J. MASEKO
FOR
DEFENDANT MR. M.H. MDLULI
JUDGEMENT
19/08/04
This
is an action for a restitution order, and failing compliance then for
a decree of divorce. The ground on which the claim is based is
malicious desertion in that:
Defendant
lacks respect for the plaintiff as her husband.
Defendant
excessively indulges in alcoholic beverages, resulting in unruly and
unbecoming behaviour causing injury to the plaintiff's name, dignity
and good repute.
Defendant
verbally and physically abuse plaintiff.
Defendant
physically assaults plaintiff.
Defendant
is persistently cruel to persons close to the plaintiff,
particularly the plaintiff's minor children born out of wedlock;
which is not acceptable to the plaintiff.
According
to plaintiff, as a result of the defendant's unlawful conduct
aforesaid he was obliged to find alternative accommodation away from
the common home, saving himself the indignities he had gone through
at defendant's instance.
The
parties were married on 4th July, 1997 in Manzini. The husband was at
the time a state prosecutor. There is one child born of the marriage
- namely Phetsile Maseko, who is three years old.
In
summary, the evidence of the plaintiff was that as husband defendant
failed from the beginning of the married life to accord him respect
as expected of a married woman towards her husband. As a result in
March 2003 he was literally forced out of the matrimonial home.
According
to plaintiff, the defendant drank . alcoholic beverages excessively.
This embarrassed plaintiff in so far as his plans were concerned and
it did not augur well in so far as his status and his station in life
was concerned.
As
a result of her drinking sprees she would come at ungodly hours and
sometimes the early hours of the morning.
2
According
to plaintiff, though he cannot remember all the dates of abuse, he
however recalls a date on 11th January 2002 where he came after 1.00
a.m. and three days later, she came in at 11.00 p.m. In both
occasions defendant would be abusive both verbally and physically.
This was in the presence of the child who was only 2 years old.
As
a result of the abuse windows and doors were broken and at some stage
he would call the police who would come and calm her down. Sometimes
this would be done in full view of her friends and relatives who
would be visiting them.
According
to plaintiff when he was forced out of the matrimonial home the
windows were all broken as a result of defendant throwing stones at
them. The doors had dents and cracks. Plaintiff found this to be very
embarrassing taking into account the neighbourhood they were living
in.
Defendant
denies having verbally or physically abused the plaintiff. She told
the court that when they started drinking they were drinking
together. Plaintiff started going away and drinking with his friends.
Defendant denies that she lacks respect of her husband.
According
to defendant, plaintiff did not tell her that she was drinking
heavily and he did not tell her that he did not want her to drink
anymore. Defendant stated that she never physically or verbally
abused plaintiff, but that it was plaintiff who used to assault her.
From
the foregoing it is clear that there was indeed a feeling of
animosity between the couple. It is also clear that this emanated
from the drinking sprees by defendant which are not denied. It is
also clear from plaintiff's evidence that the defendant would come
in the early hours of the
3
morning.
This was the cause of the quarrel as there was a two year old child
who needed both her parents to take care of her.
Defendant
does not deny that she would go drinking. She however says they
started drinking together with her husband. She also does not deny
the fact that she would come in the early hours of the following day.
She however says that her husband did not tell her that she was
drinking heavily.
It
is basically settled, I think, that conjugal love embraces three
components;
eros
(passion)
philia
(companionship)
agape
(self-giving, brotherly love).
And
in the view of Young Jin TVT 1968 (3) SA 554 at 555 (E) "a final
denial of one or more of these elements, done maliciously and without
good cause could constitute desertion for the purposes of the law of
divorce".
The
question for determination in this matter is whether the second
component existed between the two parties at the time plaintiff left
the matrimonial house. From the evidence clearly there was no
companionship. It is further clear that the conduct of the defendant
of excessive drinking and total disregard of the feelings of her
partner destroyed the companionship which is the basis of conjugal
love.
4
From
the foregoing it is the opinion of this court that plaintiff has been
able on a balance of probabilities to prove malicious desertion.
K.P.
NKAMBULE
JUDGE
5
