IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 4095/08
In the matter between:
NONHLANHLA VIRGINIA SACOLO APPLICANT
CHRISTOPHER SACOLO 1ST RESPONDENT
MAGISTRATE SABELO MAGAGULA 2ND RESPONDENT
ATTORNEY GENERAL 3RD RESPONDENT
CORAM MAMBA J
FOR APPLICANT NO APPEARANCE
FOR 1ST RESPONDENT MR. Z. MAGAGULA
 The first respondent and applicant who are both Swazis are husband and wife respectively by virtue of a civil rites marriage contracted in Nhlangano on 11th May, 1979. two children, who are now majors, were born of the marriage.
 On the 30th March 2006, the first respondent filed a divorce summons in the Magistrate’s Court in Manzini alleging that the applicant had committed acts of constructive desertion. He also made the allegation that “…the relationship between the parties has irrevocably broken down.” Having based his action for divorce on (constructive) desertion, he was, in terms of our law bound to apply or pray for an order for the restoration of conjugal rights, failing which a final decree of divorce based on the applicant’s desertion. He complied with this requirement. He was able to satisfy the court in respect of the restoration and the court granted him the order for restoration of conjugal rights. Fresh and further trouble, however, ensued when the applicant attempted to comply with the order. The first respondent would not hear of it. He frustrated, successfully, applicant’s compliance therewith.
 On the return date, it was argued on behalf of the first respondent, without there being evidence led, that the marriage relationship between the parties had irretrievably broken down and further cohabitation between them was no longer possible and any further contact or cohabitation was dangerous. It was submitted that “the parties … are so polarized that it would be dangerous and a bit reckless for the court to order that a decree of divorce should not be granted.”
 In her evidence before the issue of the restituion order, the Applicant testified under oath and admitted some of the acts complained of by the first respondent. These included consulting and receiving medical assistance from traditional healers in respect of a variety of issues within the family and in particular in respect of sicknesses experienced by the children born of the marriage. She testified though that this was either done by the parties jointly or by her alone with the first respondent’s prior knowledge and consent. She accused him of being a serial adulterer. She had, however, forgiven him for his sins. She stated that she was desirous of making the marriage work and was committed to play her part in this regard.
 After hearing argument on the return date and hearing no evidence at all from anyone, the trial magistrate held that “when the order to restore conjugal rights was issued by this court, the defendant complied. However, the plaintiff could not accept her. No return was filed by the plaintiff in this regard.
What is clear from the above is that the parties are so polarized towards each other such that there would be big difficulty if they were allowed to stay together as husband and wife. Inasmuch as they have not complied with certain requirements of the law it would be worthless to force them to do so. There are no chances that the marriage relationship will ever work out between the two of them.
The plaintiff has defied… an order which it sought in that it refused to allow the defendant to restore conjugal rites (sic). On the other hand the defendant had done a lot of other things which if viewed closer are not conducive for a healthy and harmonious marriage relationship.”
(The underlining and emphasis has been added by me).
He thus acceded to the first respondent’s entreaties and decreed a final divorce order based on irreconcilable differences between the parties or irretrievable breakdown of the marriage relationship between them.
 No doubt aware that irretrievable breakdown of the marriage was as such not a ground for divorce in our law and no doubt further, realizing that the judgement he had rendered was irreconcilable with our marriage laws, he called for a reform of our law so that “…it is compatible with modern times and gives effect to the constitutional dispensation of our times.” It is this judgement that the applicant wants reviewed and set-aside.
 It is the applicant’s contention that the 2nd respondent acted irregularly and thus arrived at a wrong decision or conclusion by failing to hear evidence especially from the applicant on the return date. The applicant argues further that 2nd respondent took into account irrelevant factors such as the unproven allegation that the marriage between the parties had irredeemably broken down. Irretrievable breakdown of marriage is, in terms of our law, not a ground for divorce. Further, having found as a fact that the Applicant’s attempt to comply with the restitution order was frustrated by the first respondent, the trial court should not have found in favour of the first respondent and granted a final decree of divorce. I proceed to examine the law in this regard.
 Our law of marriage is based on Roman Dutch – Law which recognizes only two grounds of divorce; namely malicious desertion and adultery. A plaintiff must, in order to be successful allege and prove one of these grounds against a defendant. The plaintiff has to allege and prove that the defendant has committed one or both of these and that there has been no condonation on his part. It is largely for this reason that we say an action for divorce in our law is based on fault. The position under South African Law was changed by statute; the main one being “the Divorce Act 70 of 1979, which replaced fault with failure, the matrimonial offence with irretrievable marriage breakdown, as the main ground of divorce. There are now only two grounds of divorce: irretrievable marriage breakdown and mental illness or continuous unconsciousness of one of the spouses. …In practical importance, of course, the former far outranks the latter.”(The South African Law of Husband and Wife 5th edition HR Hahlo at 330).
In fairness to the 2nd Respondent he fully acknowledged the correct position of our law and the distinction between our law and South African Law. It was because of this awareness that he called for a reform of our law to conform to modern day principles and jurisprudence.
 Whilst I am in total agreement with the learned Magistrate that our matrimonial; and in particular, our divorce law is totally outmoded or outdated in its content, underlying principles and reasoning, I am constrained to disagree with the notion, implicit in his judgment, that the courts are at liberty to ignore such laws and instead implement foreign laws that are clearly inconsonant with ours but plainly consonant with modern day jurisprudence on the issue. If a law is clear and unambiguous and not inconsistent with or contrary to our Supreme law; the Constitution, it is the duty of the court to give effect to it. I would add this though. Where a law is clear and unambiguous but plainly unfair and unjust or unreasonable or absurd, it is the duty of the courts to point this out and call upon the legislative arm of Government to remedy the situation. For a court to replace an unreasonable law with a foreign one that is reasonable would, in my judgment, be legislation by judicial decree – which is a usurpation of the Legislative function. Proponents of judicial Activism do not support it either, I believe. Oft-times courts will find some measures in the law to ameliorate or mitigate the impact or effect of an unjust or unfair law. In casu, it is perhaps to be regretted that the trial court did not explore or consider the possibility of an order of judicial separation, though of course temporary in its nature. It remained a possibility nonetheless.
 It is common ground that the court held that :
the applicant had “complied” with the order for the restoration of conjugal rights and that
the first respondent had “defied” the order of restoration of conjugal rights he had sought and obtained. By so holding, the learned Magistrate did not say that the applicant’s attempt to restore conjugal rights was not genuine or was a sham or farce. Indeed he would have needed to hear evidence to come to such a conclusion. What is very clear from the court’s ruling is that the first respondent defied the court order by not allowing the applicant to restore conjugal rights. That should have been enough, in terms of our regrettably archaic law, to have the action dismissed. In or by defying the restitution order, the 1st respondent changed from being the deserted to being the deserter. He was at fault. The law does not permit him to benefit from his own sins or transgressions. He was thus not entitled to a decree of divorce.
 Having heard no further evidence on the return date, it is inexplicable and rather curious and puzzling why the court granted the order for restoration of conjugal rights in the first place. It served no purpose at all if the court was already of the firm view that the marriage was beyond redemption. In Hlatshwayo v Hlatshwayo 1979-1981 SLR 177 at 178A Nathan CJ stated:
“It is a well-settled principle, indeed almost elementary, that the whole object of issuing a restitution order is to afford a defendant spatium deliberandi, and it is only when the court is satisfied that he has disregarded that order and is thereby indeed guilty of malicious desertion that the court will grant a final order of divorce. …The grant of a restitution order is not, as the magistrate appears to have believed, a mere formality….”
 In this application, having correctly determined the applicable law, the learned Magistrate misdirected himself in following his heart rather than his mind in the order that he made. He took into consideration matters that were irrelevant in the determination of the issues before him. He erred. His decision was therefore set aside with no order for costs made.
 As an epilogue, I would add one word on this matter. I entirely share the second Respondent’s view that our divorce laws are outdated, archaic and completely out of touch with modern Swazi jurisprudence on matrimonial matters. A complete and radical rethink is desperately needed. Tying together a couple whose marriage has irretrievably broken down is a potent recipe for domestic violence or collusion. Where there is collusion, there is almost always dishonesty or perjury. The law thus drives couples who are otherwise law abiding into committing unsavoury or criminal acts, just for them to escape from an unbearable or untenable rut. The words of ROPER J uttered over sixty years ago in KUHN v KARP, 1948 (4) SA 825 (T) at 827-8 are apposite in this regard:
“The upholding of the marriage state is only one of the several objects of public policy. …where a marriage has been wrecked beyond hope of salvage, the argument of public policy loses much of its force. …To keep the parties tied to one another in the bonds of a marriage which has become a sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.”
 In 1845 Punch Magazine offered the following advice to persons about to marry – “Don’t”.
Those who know how difficult it is to obtain a decree of divorce under our law have heeded this advice and have been compelled to resort to less formal partnerships like cohabitation. Without any doubt, this is incompatible with Swazi Public Policy and jurisprudence and the finger must point to where the blame rests or resides : Parliament.