MABOTE and Another v. MABOTE 1999 (1) BLR 386 (CA)

Source:
Botswana Law Reports (1964 to 2020(2))/CHRONOLOGICAL LISTING OF CASES 2020/1999 (1)/Cases Reported/MABOTE and Another v. MABOTE 1999 (1) BLR 386
(CA)
URL:
http://jutastat.juta.co.za/nxt/gateway.dll/frbo/2/4724/4729/4778?f=templates$fn=default.htm
MABOTE and Another v. MABOTE 1999 (1) BLR 386 (CA)
Citation 1999 (1) BLR 386 (CA)
Court Court of Appeal, Lobatse
Judge Steyn J, Lord Allanbridge J and Korsah JA
Judgment July 23, 1999
Counsel M. Marumo for the appellants.

F. Ngandu for the respondent.
Annotations
Flynote
Husband and wife Divorce Adultery Evidential proof Proof of adultery by circumstantial evidence Inference to be drawn from surrounding
circumstances of familiarity, opportunity and inclination Evidence to be strong enough to C warrant inference.
Husband and wife Divorce Third party Damages Assessment of damages Contumelia and loss of consortium Award of damages against
third party Factors to consider Prior relationship between guilty parties Contumacious act committed after institution of divorce proceedings
Duration of marriage Stability of marriage Value base to which D spouses subscribe Defendant pleading that she found it intolerable to live
with plaintiff Whether court a quo erred in its award Whether appellate court should interfere with award.
Headnote
The first appellant (as plaintiff) sued the respondent (defendant) seeking a decree for divorce on grounds inter alia that the marriage between
them had broken down irretrievably due to the respondent's wrongful conduct, E and further division of the joint estate and custody of the
minor child to be awarded to the respondent subject to rights of reasonable access and costs of suit. The respondent wife filed a plea and
counterclaimed for divorce on the grounds of the appellant's adultery with the third party, custody and maintenance for the minor child, division
of the joint estate and damages against the third party being P20,000.00 for contumelia inflicted upon her and P30,000.00 for her loss of the
society, comfort and services of the appellant. The evidence adduced at the F trial was as follows: Between 1985 and October 1988, the
appellant and the third party were studying at the University of Botswana, Gaborone. They became friends and eventually lovers. In October
1988 they separated as the appellant went to study in U.K. and the third party went to study in the U.S.A. On 16 December 1993, the
appellant and the respondent married in Gaborone. In about the winter of 1995, the third party returned from the G U.S.A. and eventually met
the appellant again in about December 1995 and saw him on some occasions thereafter. On 3 April, 1996, the minor child of the appellant and
the respondent was born. In about June the child was hospitalised and the respondent stayed in hospital with him. On her return from the
hospital on 10 July 1996, the respondent was served on that same day at home with the appellant's divorce summons. On the nights of H 12/13
July 1996 and Saturday 13/14 July 1996, the appellant and the third party stayed at Thapama Hotel, Francistown, where it was alleged by the
respondent that they committed
1999 (1) BLR p387

adultery. The trial court found that the appellant had failed to prove on a balance of probabilities that the marriage A had broken down as a
result of the allegations made by the appellant and he dismissed his action for divorce with costs. He, however, found that the respondent had
proved on a balance of probabilities that the appellant and the third party had committed adultery and that accordingly the marriage had broken
down irretrievably as a result. He gave judgment for the respondent and awarded her the sum of P7,000 as damages for contumelia and P
13,000 as damages for her loss of consortium with her spouse, both sums to be paid to her by the third party. On appeal against the decision of
the court a quo,
Held: (1) a case based on adultery can be proved by circumstantial evidence alone. This is a frequent occurrence as very often there is no
direct eyewitness' evidence of adultery. The inference is drawn from all the B surrounding circumstances such as familiarity, opportunity and
inclination. However the evidence must be strong enough to warrant the inference, not merely that adultery might have taken place, but that it
actually did happen. Kleinwort v. Kleinwort 1927 A.D. 123 applied.
(2) The approach of the trial judge to the question of the adequacy of the circumstantial evidence in the case was C the correct one. It was
supported by the authorities to which he referred. The question at issue between the parties on this aspect of the case was one on which the
learned judge was entitled to accept the respondent as a reliable and credible witness and, having done so, to find sufficient evidence in the
surrounding facts and circumstances to infer proof of the fact that adultery did take place.
(3) There were many proved circumstances in the case which were all consistent with the respondent's D counterclaim of adultery being
established. Each by itself might amount only to suspicion or less but, like the strands in a strong cable, they were present in sufficient number,
when taken together, amply to justify the trial judge's decision to find the adultery in the counterclaim proved on a balance of probability.
(4) In its assessment of damages, the court a quo did not seem to have attached any weight to the fact that a prior relationship existed
between the parties and that they had been in love with one another for some three E years. It is against this background that the conduct of
the third party must have been assessed when she responded positively to the appellant's initiative which led to the resumption of their
relationship. The adultery was also committed on two nights after the appellant had already issued a summons and had it served on the
respondent. Also it was only after the institution of the divorce proceedings, and more specifically after the F allegation of adultery had been
made by the respondent, that the third party appeared to have abandoned discretion and allowed herself to be seen in public with the
appellant. Whilst those factors did not excuse the conduct of the third party, they were considerations which the court a quo should have
evaluated when quantifying the damages to be awarded against the third party in respect of contumelia.
(5) In so far as loss of consortium was concerned, the court a quo placed considerable emphasis on the fact G that according to the
respondent's testimony she still loved the appellant and would consider having him back if he changed his mind and terminated his relationship
with the third party. That evidence should have been viewed with caution. It was in conflict with the fact that the respondent evinced
considerable resentment because of the way her husband had behaved towards her during the last seven months of their marriage. Of even
greater H significance, however, was the fact that the respondent herself sued the appellant for divorce. In her counterclaim she alleged that
as a result of the adultery she would find it intolerable and did find it intolerable to live with the appellant. Her attitude in the pleadings tainted
her protestations of ongoing love and affection for the appellant and her willingness to resume cohabitation.
1999 (1) BLR p388

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(6) The damages awarded against the third party by the court a quo could not stand for two compelling reasons. A In the first place the
respondent that they committed
1999 (1) BLR p387

adultery. The trial court found that the appellant had failed to prove on a balance of probabilities that the marriage A had broken down as a
result of the allegations made by the appellant and he dismissed his action for divorce with costs. He, however, found that the respondent had
proved on a balance of probabilities that the appellant and the third party had committed adultery and that accordingly the marriage had broken
down irretrievably as a result. He gave judgment for the respondent and awarded her the sum of P7,000 as damages for contumelia and P
13,000 as damages for her loss of consortium with her spouse, both sums to be paid to her by the third party. On appeal against the decision of
the court a quo,
Held: (1) a case based on adultery can be proved by circumstantial evidence alone. This is a frequent occurrence as very often there is no
direct eyewitness' evidence of adultery. The inference is drawn from all the B surrounding circumstances such as familiarity, opportunity and
inclination. However the evidence must be strong enough to warrant the inference, not merely that adultery might have taken place, but that it
actually did happen. Kleinwort v. Kleinwort 1927 A.D. 123 applied.
(2) The approach of the trial judge to the question of the adequacy of the circumstantial evidence in the case was C the correct one. It was
supported by the authorities to which he referred. The question at issue between the parties on this aspect of the case was one on which the
learned judge was entitled to accept the respondent as a reliable and credible witness and, having done so, to find sufficient evidence in the
surrounding facts and circumstances to infer proof of the fact that adultery did take place.
(3) There were many proved circumstances in the case which were all consistent with the respondent's D counterclaim of adultery being
established. Each by itself might amount only to suspicion or less but, like the strands in a strong cable, they were present in sufficient number,
when taken together, amply to justify the trial judge's decision to find the adultery in the counterclaim proved on a balance of probability.
(4) In its assessment of damages, the court a quo did not seem to have attached any weight to the fact that a prior relationship existed
between the parties and that they had been in love with one another for some three E years. It is against this background that the conduct of
the third party must have been assessed when she responded positively to the appellant's initiative which led to the resumption of their
relationship. The adultery was also committed on two nights after the appellant had already issued a summons and had it served on the
respondent. Also it was only after the institution of the divorce proceedings, and more specifically after the F allegation of adultery had been
made by the respondent, that the third party appeared to have abandoned discretion and allowed herself to be seen in public with the
appellant. Whilst those factors did not excuse the conduct of the third party, they were considerations which the court a quo should have
(5) In so far as loss of consortium was concerned, the court a quo placed considerable emphasis on the fact G that according to the
respondent's testimony she still loved the appellant and would consider having him back if he changed his mind and terminated his relationship
with the third party. That evidence should have been viewed with caution. It was in conflict with the fact that the respondent evinced
considerable resentment because of the way her husband had behaved towards her during the last seven months of their marriage. Of even
greater H significance, however, was the fact that the respondent herself sued the appellant for divorce. In her counterclaim she alleged that
as a result of the adultery she would find it intolerable and did find it intolerable to live with the appellant. Her attitude in the pleadings tainted
1999 (1) BLR p388
learned judge erred when considering the factors to be taken into account when determining damages. The second reason why the appellate
court would exercise its discretion to reduce the award is that if regard is had to all the circumstances, including the aggravating features
correctly identified, the award was excessive. B
Case Information
Cases referred to:
(1) Kleinwort v. Kleinwort 1927 A.D. 123.
(2) Gates v. Gates 1939 A.D. 150.
(3) Viviers v. Killian 1927 A.D. 449.
(4) Valken v. Berger 1948 (3) S.A. 532 (W).
(5) Grobbelaar v. Havenga 1964 (3) S.A. 522 (N).
(6) Bruwer v. Joubert 1966 (3) S.A. 344 (A). C
(7) Strydom v. Saayman 1949 (2) S.A. 736 (T).

(8) Van der Westhuizen v. Van der Westhuizen 1996 (2) S.A. 850 (C).
(9) Bester Madumetse v. Robert Molapo 1982(1) B.L.R. 102.
(10) Thabane v. Thabane and Another 197173 L.L.R. 145.
(11) Ngakae v. Ngakae 197980 B.L.R. 248. D
APPEAL against judgment of the court a quo granting the defendant judgment for contumelia and loss of consortium against the third party and
ordering the plaintiff to pay monthly maintenance for the minor child. The facts are sufficiently stated in the judgment. E
M. Marumo for the appellants.
Judgment
Steyn J.A.:
In this matrimonial action the first appellant is the husband ("the plaintiff"), the second appellant is Ms Ramokhua ("the third party") and the
respondent is the wife ("the defendant"). F
By writ of summons dated 19 June 1996 the plaintiff sued the defendant, in terms of which he sought a decree for divorce on the ground that
the marriage had broken down irretrievably due to the defendant's wrongful conduct, and further, division of the joint estate, custody of the
minor child to be awarded to the defendant, subject to rights of reasonable access, costs of suit and further and/or alternative relief. G
On 6 September 1996, the defendant filed a plea and counterclaim for a decree of divorce on the ground of the plaintiff's adultery with the third
party, custody of and maintenance for the minor child, division of the joint estate, damages against the third party being P20,000 for contumelia
inflicted upon the defendant, P30,000 for her loss of comfort, society and services of the plaintiff. H
On 13 June 1997 the parties filed minutes of the pretrial conference, held on 12 May 1997, and in paragraph 2.1 of the minutes it is stated as
follows:
"the Plaintiff and the Defendant being in agreement that the marriage has broken down irretrievably the Honourable Court is requested to determine whether
the said breakdown is on the account of the reasons
1999 (1) BLR p389
STEYN JA
alleged by the Plaintiff or on account of those alleged by the defendant." A
The case finally went to trial in June 1997 before Dibotelo J. The only three witnesses to give evidence were the three parties themselves and
none of them called any other evidence. After the plaintiff had given evidence counsel for the defendant applied for absolution from the
instance as regards the plaintiff's case for divorce in B terms of Order 45, rule 7(1). On 17 June 1997 the trial judge refused the application with
costs and the defendant and the third party then gave evidence. After various adjournments, the evidence was completed in September 1997.
Put briefly, when this Court of Appeal is dealing with the case at this stage of proceedings, the main issues are: C
1999 (1) BLR p388
learned judge erred when considering the factors to be taken into account when determining damages. The second reason why the appellate
court would exercise its discretion to reduce the award is that if regard is had to all the circumstances, including the aggravating features
correctly identified, the award was excessive. B
Case Information
Cases referred to:
(1) Kleinwort v. Kleinwort 1927 A.D. 123.
(2) Gates v. Gates 1939 A.D. 150.
(3) Viviers v. Killian 1927 A.D. 449.
(4) Valken v. Berger 1948 (3) S.A. 532 (W).
(5) Grobbelaar v. Havenga 1964 (3) S.A. 522 (N).
(6) Bruwer v. Joubert 1966 (3) S.A. 344 (A). C
(7) Strydom v. Saayman 1949 (2) S.A. 736 (T).

(8) Van der Westhuizen v. Van der Westhuizen 1996 (2) S.A. 850 (C).
(9) Bester Madumetse v. Robert Molapo 1982(1) B.L.R. 102.
(10) Thabane v. Thabane and Another 197173 L.L.R. 145.
(11) Ngakae v. Ngakae 197980 B.L.R. 248. D
APPEAL against judgment of the court a quo granting the defendant judgment for contumelia and loss of consortium against the third party and
ordering the plaintiff to pay monthly maintenance for the minor child. The facts are sufficiently stated in the judgment. E
M. Marumo for the appellants.
Judgment
Steyn J.A.:
In this matrimonial action the first appellant is the husband ("the plaintiff"), the second appellant is Ms Ramokhua ("the third party") and the
respondent is the wife ("the defendant"). F
By writ of summons dated 19 June 1996 the plaintiff sued the defendant, in terms of which he sought a decree for divorce on the ground that
the marriage had broken down irretrievably due to the defendant's wrongful conduct, and further, division of the joint estate, custody of the
minor child to be awarded to the defendant, subject to rights of reasonable access, costs of suit and further and/or alternative relief. G
On 6 September 1996, the defendant filed a plea and counterclaim for a decree of divorce on the ground of the plaintiff's adultery with the third
party, custody of and maintenance for the minor child, division of the joint estate, damages against the third party being P20,000 for contumelia
inflicted upon the defendant, P30,000 for her loss of comfort, society and services of the plaintiff. H
On 13 June 1997 the parties filed minutes of the pretrial conference, held on 12 May 1997, and in paragraph 2.1 of the minutes it is stated as
follows:
"the Plaintiff and the Defendant being in agreement that the marriage has broken down irretrievably the Honourable Court is requested to determine whether
1999 (1) BLR p389
STEYN JA
(1) Whether the breakdown of the marriage was on account of the reasons alleged by the plaintiff, or
(2) Whether that breakdown was caused by the alleged adultery by the plaintiff with the third party,
(3) Whether the defendant suffered damages as alleged by her which are payable to her by the third party, D and
(4) Whether the plaintiff is liable to pay maintenance for the minor child as sought by the wife and in what amount.
In his well expressed and careful judgment, delivered on 12 December 1997, the trial judge analysed all these four questions in favour of the
defendant. In the first place, he found that the plaintiff had failed to prove on a E balance of probabilities that the marriage had broken down
as a result of the allegations made by the plaintiff and he dismissed his action for divorce with costs. In the second place, he found that the
defendant had proved on a balance of probabilities that the plaintiff and the third party had committed adultery and accordingly that the
marriage had broken down irretrievably as a result. The defendant's counterclaim for divorce therefore F succeeded with costs against both the
plaintiff and the third party.
In the third place, the judge awarded the defendant the sum of P7,000 as damages for contumelia and P13,000 as damages for her loss of
consortium with her spouse, both sums, which total P20,000, being payable to her by the third party. G
In the fourth place, the judge ordered that the plaintiff should pay maintenance for the minor child of P600 per month for the first 12 months
and thereafter to pay P1,200 per month.
The judge also made provision for the division of the joint estate following on divorce, on which the parties had failed to reach a settlement.
However, in the hearing before this court, counsel for the parties both agreed that H the court a quo's order on this matter is not now disputed
and that it should remain unaltered.
It is convenient to deal separately with each of these four questions both as regards the law and the judge's findings in respect of them. Before
doing so, a brief history of the relationship between the three parties, in so far as it is not in dispute, will set the scene.
1999 (1) BLR p390
STEYN JA
The histrory A
Between 1985 and October 1988 the plaintiff and the third party were studying at University of Botswana in Gaborone. They became friends and
eventually lovers. In about October 1988 they separated as the plaintiff went to study in the U.K. and the third party went to study in the
U.S.A.
On 16 December 1993, the plaintiff and the defendant married in Gaborone. The plaintiff was then aged 33 years and the defendant was aged
26 years. (The third party was aged 30 years when she gave evidence in June B 1997, some three and a half years later, so that she would be
much nearer in age to the defendant rather than to the plaintiff).
In about
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him on some occasions thereafter. C
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(1) Whether the breakdown of the marriage was on account of the reasons alleged by the plaintiff, or
(2) Whether that breakdown was caused by the alleged adultery by the plaintiff with the third party,
(3) Whether the defendant suffered damages as alleged by her which are payable to her by the third party, D and
(4) Whether the plaintiff is liable to pay maintenance for the minor child as sought by the wife and in what amount.
In his well expressed and careful judgment, delivered on 12 December 1997, the trial judge analysed all these four questions in favour of the
defendant. In the first place, he found that the plaintiff had failed to prove on a E balance of probabilities that the marriage had broken down
as a result of the allegations made by the plaintiff and he dismissed his action for divorce with costs. In the second place, he found that the
defendant had proved on a balance of probabilities that the plaintiff and the third party had committed adultery and accordingly that the
marriage had broken down irretrievably as a result. The defendant's counterclaim for divorce therefore F succeeded with costs against both the
plaintiff and the third party.
In the third place, the judge awarded the defendant the sum of P7,000 as damages for contumelia and P13,000 as damages for her loss of
consortium with her spouse, both sums, which total P20,000, being payable to her by the third party. G
In the fourth place, the judge ordered that the plaintiff should pay maintenance for the minor child of P600 per month for the first 12 months
and thereafter to pay P1,200 per month.
The judge also made provision for the division of the joint estate following on divorce, on which the parties had failed to reach a settlement.
However, in the hearing before this court, counsel for the parties both agreed that H the court a quo's order on this matter is not now disputed
and that it should remain unaltered.
It is convenient to deal separately with each of these four questions both as regards the law and the judge's findings in respect of them. Before
1999 (1) BLR p390
STEYN JA
The histrory A
U.S.A.
In about the winter of 1995, the third party returned from the U.S.A. and eventually met the plaintiff again in about December 1995 and saw
On 3 April 1996, the minor child of the plaintiff and defendant was born. In about June 1996 the child went to hospital and the defendant stayed
in hospital with him. On her return from the hospital on 10 July 1996, the defendant was served on that same day at home with the plaintiff's
divorce summons. D
On the nights of Friday 1213 July 1996 and Saturday 1314 July 1996 the plaintiff and the third party had stayed at Thapama Hotel,
Francistown, where it is alleged by the defendant they committed adultery.
The main issues
(1) Whether the conduct of the defendant caused the breakdown of the marriage. E
(1)(a) The law

Section 15(1)(b) of the Matrimonial Causes Act (Cap. 29:06) provides:
"The court hearing an action for divorce shall not hold the marriage to have broken down irretrievably unless the plaintiff F satisfies the court of one or more
of the following facts, that is to say. . .
(b) that the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant."
In this action the plaintiff is required to prove on a balance of probabilities that the marriage has broken down as a G result of the allegations
set out in his declaration as follows:
"10. The marriage between the parties, has broken down irretrievably by reason that defendant has behaved in such an unreasonable manner that the plaintiff
cannot reasonably be expect to continue living with her. In particular, H
10.1. Defendant is extremely quarrelsome and is fond of picking quarrels with Plaintiff for no reason. During such quarrels Defendant is fond of shouting at
Plaintiff using language which is abusive of Plaintiff and which demonstrates a lack of respect for Plaintiff.
1999 (1) BLR p391
STEYN JA
10.2. Defendant has on diverse [sic.] occasions falsely accused Plaintiff of infidelity and unfaithfulness and of having affairs A with other women. These
accusation [sic.] have caused pain to Plaintiff.
10.3. On at least one occasion Defendant has forcefully conducted a humiliating and degrading physical inspection on Plaintiff to find out, so Defendant stated,
whether Plaintiff had been sleeping with another woman. B
10.4. Defendant's behaviour seriously stifles Plaintiff in his attempts to improve his economic status. For example, Defendant has constantly resisted Plaintiff's
efforts to start a cattle post because, so Defendant stated, Plaintiff would use the pretex of going to the cattle post to see other women. C
10.5. Defendant picked a quarrel with Plaintiff over the latter's performance of his traditional Setswana role as the uncle of the bride during the marriage of
Plaintiff's niece. Plaintiff's feelings were greatly hurt by the Defendant's apparent lack of cooperation with and support for Plaintiff. D
10.6. Defendant is extremely extravagant and chooses to spend money on unnecessary things and refuses to account to Plaintiff for her expenditure.
10.7. Defendant is in the habit of telling her friends and relatives everything that goes on in the matrimonial home including things of an essentially private
nature. This humiliates and degrades Plaintiff and denies him his rights of reasonable privacy. E
10.8. Defendant is in the habit of going for long periods without speaking to Plaintiff.
10.9. No love exists between the parties and the marriage is but an empty shell." F
(1)(b) The evidence

As regards the evidence of the plaintiff in support of the allegations outlined in his declaration it is summarised by the judge a quo as follows:
"On the breakdown of the marriage, the Plaintiff elaborated on the allegations contained in his declaration and testified that G there is no longer any trust
between him and Defendant who he said had accused him many times of infidelity. He says the defendant is quarrelsome and has accused him of being 'his
mother's boy', which phrase he said meant he listened to his mother instead of to the Defendant. He said during their frequent quarrels the Defendant used
abusive language towards H him and that in August 1994 when his niece was getting married the Defendant never assisted him and further, that when he wanted
to buy cattle the Defendant refused, saying if he bought cattle he would use the pretext of going to the cattle post to visit or see other women. He however,
conceded that he subsequently bought the cattle.
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The histrory A
U.S.A.
In about the winter of 1995, the third party returned from the U.S.A. and eventually met the plaintiff again in about December 1995 and saw
On 3 April 1996, the minor child of the plaintiff and defendant was born. In about June 1996 the child went to hospital and the defendant stayed
in hospital with him. On her return from the hospital on 10 July 1996, the defendant was served on that same day at home with the plaintiff's
divorce summons. D
On the nights of Friday 1213 July 1996 and Saturday 1314 July 1996 the plaintiff and the third party had stayed at Thapama Hotel,
Francistown, where it is alleged by the defendant they committed adultery.
The main issues
(1) Whether the conduct of the defendant caused the breakdown of the marriage. E
(1)(a) The law

Section 15(1)(b) of the Matrimonial Causes Act (Cap. 29:06) provides:
"The court hearing an action for divorce shall not hold the marriage to have broken down irretrievably unless the plaintiff F satisfies the court of one or more
of the following facts, that is to say. . .
(b) that the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant."
In this action the plaintiff is required to prove on a balance of probabilities that the marriage has broken down as a G result of the allegations
set out in his declaration as follows:
"10. The marriage between the parties, has broken down irretrievably by reason that defendant has behaved in such an unreasonable manner that the plaintiff
cannot reasonably be expect to continue living with her. In particular, H
10.1. Defendant is extremely quarrelsome and is fond of picking quarrels with Plaintiff for no reason. During such quarrels Defendant is fond of shouting at
1999 (1) BLR p391
STEYN JA
(1)(b) The evidence

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According to the Plaintiff, the Defendant incurs debts without his consent with the result that he sometimes has to pay A debts which he never planned. He said
one evening when he arrived home at 8 p.m. from delivering a lecture the Defendant undressed him and proceeded to inspect his private parts to ascertain
whether or not he had been sleeping with other women. On being asked why he did not resist he said it was because he wanted the Defendant to satisfy herself
that he B had not been sleeping with other women. The Plaintiff also testified that there was no love between him and the Defendant and that he last had sexual
intercourse with the Defendant in July or August 1995. He said the Defendant discussed with her relatives or friends everything he discussed with the Defendant
privately and further that he knew the Defendant divulged C their secrets because the Defendant's relatives and friends would tell him what the Defendant had
told them. I should state here that in response to the Defendant's request for further particulars, the Plaintiff furnished at least four names of persons he alleged
the Defendant had divulged the family secrets to but at the trial the Plaintiff never called any of those persons to support his allegation that the Defendant had
the habit of divulging the parties' secrets. According to the Plaintiff D there was no possibility of reconciliation between him and the Defendant.
The Plaintiff was crossexamined at length by counsel for the defendant and in crossexamination he said, inter alia, that the Defendant started accusing him of
infidelity within two months of the marriage, i.e. in or about February 1994; that Defendant started being quarrelsome in February 1994 accusing him of coming
home late and being stupid and that he E listened to and paid more attention to his mother than to the Defendant; that it took him a long time to institute divorce
proceedings against the Defendant because he was a religious person and was also trying to avoid embarrassing his parents with a divorce. Although the Plaintiff
said that the Defendant started causing problems to the marriage in February F 1994 he does not say anywhere in his evidence that the reason he took so long
to have the marriage dissolved was because he had hoped things would improve or that the Defendant would mend what the Plaintiff perceived as her
unreasonable behaviour so that the marriage might be saved.
The Plaintiff revealed during crossexamination that he used to give the Defendant money to please her which he alleged G she spent extravagantly on
clothing, on average he gave her P800 per month in order to show her that he loved her and so that peace might prevail in their home. He said the Defendant
became pregnant against his wishes because he did not want a child within two years of marriage but he accepted the child after birth. Although the Plaintiff
wants the Court to H believe that he did not want a child within two years of marriage, he failed to reveal a very pertinent fact that was revealed by the
Defendant that she was pregnant at the beginning of 1995 but unfortunately had a miscarriage. The Plaintiff also admitted that in July 1994 and December 1995
he arranged the celebrations of their wedding anniversary but said he did
1999 (1) BLR p393
STEYN JA
so in order to please the Defendant and further that he used to throw surprise parties for the Defendant in order to please A her."
In reply to the plaintiff's allegations regarding her conduct within the marriage, the defendant's evidence is summarised by the judge a quo as
follows: B
"When her turn arrived the Defendant testified that she is employed by the Water Utilities Corporation as a Computer Clerk and earns a net salary of P1,098
per month. She denied the allegations by the Plaintiff both in his declaration and evidence. She said the problems of their marriage started towards the end of
1995 when the Plaintiff began to come home late. According to the Defendant the Plaintiff had since December 1993 made or thrown surprise parties for her
during
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party for her where friends were invited and this allegation was not disputed when the Defendant was crossexamined. She said the Plaintiff was away in South
Africa in June 1995 and that when he returned he threw a D party for her to thank his friends who looked after his wife when he was away. The Defendant
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(1)(b) The evidence

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1999 (1) BLR p393
STEYN JA
follows: B
during her C birthdays and also brought her flowers on such occasions. For example, she testified that on Valentine day in 1995 the Plaintiff threw a surprise
further told the Court that on the 16 December 1995 the Plaintiff invited their friends to Cresta Lodge in Gaborone to celebrate their wedding anniversary; she
was insistent that she never nagged her husband to throw parties for her. According to the Defendant she was hospitalised at the beginning of 1995 after having
a miscarriage and during that period the Plaintiff looked after her quite E well and brought her flowers at hospital. The Defendant testified that the Plaintiff was
making false allegations against her because the Plaintiff had another woman in his life and that that woman was the third party.
According to the Defendant the Plaintiff last had sexual intercourse with her on 1 January 1996 and this allegation was not F disputed in crossexamination of
the Defendant and she denied humiliating the Plaintiff by inspecting his parts to ascertain whether he had been sleeping with other women. Instead, she said she
only touched the Plaintiff's private parts with his consent such as caressing him when they made love. The Defendant said after January 1996 the Plaintiff began
to G neglect her and stopped even kissing her although when she gave birth to their child on 3 April 1996 he was supportive. When she returned from hospital
after giving birth the Plaintiff moved into a separate bedroom and never touched her again. He also started coming home late and did not eat at home.
In June 1996, the child was hospitalised and the Defendant had to stay with him at the hospital and on their discharge from H hospital on 10 July 1996 the
Plaintiff went to fetch them and on arrival at home that day she was served with the divorce summons.
The Defendant was crossexamined at length but she stuck to her allegations that her marriage had been working well until towards the
1999 (1) BLR p394

STEYN JA
end of 1995 and early 1996 when her husband started seeing the 3rd party who had returned from her studies in the U.S.A. A As proof that she [sic.] loved
her he threw parties for her in April, June, and December 1995 where their friends were invited. She said she missed her husband who no longer loved and
wanted her because of the 3rd party and that if he were to have a change of heart she would consider going back to him." B
(1) (c) The decision

After rehearsing the evidence of the plaintiff and the defendant on this aspect of the case, the judge a quo gave his reasons for not accepting
the plaintiff's case that the breakdown of the marriage was caused by the defendant's conduct. In his submissions to this court, Mr. Marumo,
for the plaintiff, concentrated his attack on the C judge's decision that he found the adultery proved, but in his heads of argument and in his
submissions he did not depart from submitting that the judge a quo should have found the plaintiff's case against the defendant had been
established by the evidence. However, he did not elaborate on this matter in his argument and it really arose because when he was asked by
the court what would be the result if this court decided that it had not D been established that, neither the defendant's alleged conduct nor
the plaintiff's alleged adultery, had caused the the irretrievable breakdown of the marriage. Mr. Marumo had to accept that in that event the
parties would remain married, but he urged this court to find that it was in fact the defendant's conduct that caused the breakdown.
Having considered the matter and read the judge a quo's clearly expressed and justified reason for rejecting the E plaintiff's case, we have little
difficulty in upholding his decision on this part of the case. We accept and adopt the judge's reasons which were stated by him as follows:
"Having set out the evidence of each of the parties somewhat elaborately, I now have to determine whether the marriage has broken down and if it has,
whether it is on account of the reasons or allegations of the Plaintiff or whether such F breakdown is on account of the reasons or allegations of the Defendant. If
I come to the conclusion that the breakdown of the marriage is as a result of the reasons alleged by the Defendant, namely that the Plaintiff has committed
adultery with the 3rd party, I will have to determine whether the Defendant has suffered damages as a result of the adultery under any of G the headings in her
counterclaim and if I decided that she has suffered damages, to determine the amount of damages she would be awarded. Furthermore, if at the end of it all I
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arrive Company (Pty) Ltd.
the conclusion that the parties' marriage has broken down, I will also haveDownloaded
to determine: how
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the 27 2024
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is to be (South
divided and Africa Standard Time)
how much
maintenance per month the Plaintiff will have to pay for the minor child whose custody the Plaintiff and the Defendant have agreed should be awarded to the H
1999 (1) BLR p392
STEYN JA
1999 (1) BLR p393
STEYN JA
follows: B
1999 (1) BLR p394

STEYN JA

arrive at the conclusion that the parties' marriage has broken down, I will also have to determine how the joint estate is to be divided and how much
Defendant if their marriage is dissolved by this Court. I mentioned payment of maintenance for the minor child by the Plaintiff advisedly because although the
Defendant has told the court that she seeks maintenance for herself and the child, I am of the view that if the marriage is dissolved the
1999 (1) BLR p395
STEYN JA
Defendant will not be entitled to an order for maintenance for herself because the evidence shows she is not indigent. At A this state I must mention that the
Court is very grateful to both counsel for having submitted written heads of argument which were invaluable to the court.
In his evidenceinchief and under crossexamination on the breakdown of the marriage the Plaintiff maintained that their marriage started having problems
two months after the parties got married to each other or [sic.] in or about February 1994 B and that in spite of that he only instituted divorce proceedings in
July 1996. He said it took him so long to lodge the divorce action because he is a religious person and also he did not want to embarrass his parents with a
divorce. I do not believe the Plaintiff's allegation that their marriage started having problems in or about February 1994. The allegations that C he stayed in the
marriage for so long for fear of embarrassing his parents with divorce or because he is religious are in my view false. Nowhere in his evidence does the Plaintiff
allege that he remained in the marriage for so long because he hoped that the Defendant would improve on what he perceived as her unreasonable behaviour so
that the marriage might be D saved. If it was true that the Plaintiff continued with what he said was an intolerable state of affairs because he did not want to
embarrass his parents with a divorce, he would in my view have told the Court that when he finally decided to bring this action against the Defendant he had first
consulted with or at least told his parents to make them come to terms with the fact that his marriage had failed on account of the fault of the Defendant. The
Plaintiff has admitted that from the time of E the marriage in 1993 up to December 1995 he used to make or throw parties to celebrate certain events touching
on either the Defendant like her birthdays or their marriage, at times he even made or threw surprise parties for the Defendant where their friends were invited
to partake in the merriment. He admitted for example, that on Valentine Day in April 1995 he threw a surprise party for his wife; that when he returned to
Botswana from South Africa after being away for the whole F of June 1995 he threw a party where he invited his friends to thank them for looking after his wife
when he was out of the country. He also admitted that in December 1995 he invited their friends to Cresta Lodge in Gaborone for dinner to celebrate the couple's
wedding anniversary. When the defendant [sic.] found himself faced with the inevitable question of G why he went to what appeared to be great expenses in
making parties or celebrations for the Defendant whom he said had made his marriage miserable, he replied that the Defendant asked him for these celebrations
and that he threw the parties to please the Defendant so that there may be peace in their home although he said there was no longer any love between H them.
The Plaintiff is a qualified accountant and projected an image before this Court that he is careful with his finances and detests wastefulness. The questions that
arise from these facts in my view are these: If the Plaintiff no longer loved the defendant why did he throw or make these parties for her where friends were
© 2018 Juta and Company
invited? (Pty) Ltd.had behaved as badly as he
If the Defendant Downloaded : Sat Apr 27 2024 12:47:54 GMT+0200 (South Africa Standard Time)
1999 (1) BLR p393
STEYN JA
follows: B
1999 (1) BLR p394

STEYN JA

1999 (1) BLR p395
STEYN JA
invited? If the Defendant had behaved as badly as he
1999 (1) BLR p396
STEYN JA
painted her in his evidence, why was it necessary to celebrate the wedding anniversary with her and friends as late as in A December 1995? I do not believe
the Plaintiff's allegations in the light of those admissions. On the contrary I believe the Defendant's evidence which I will deal with shortly that problems with the
marriage started developing at the end of 1995 or the beginning of 1995 when the Plaintiff gradually started coming home late at night until matters got worse
after the B Defendant had given birth to their son in April 1996, when the Plaintiff stopped eating at home and talking to the Defendant.
According to the Plaintiff the last time he had sexual intercourse with his wife was in or about July or August 1995. Yet when the Defendant gave evidence, she
said this allegation was not true; on the contrary she asserted that they last had sexual intercourse on 1 january 1996. The Plaintiff did not cause this allegation,
which must have taken his counsel by C surprise, to be disputed in crossexamination. I reject the Plaintiff's averment that he last had sex with Defendant in
July or August 1995. This is not true because it conflicts with his own admission that in December 1995 he celebrated their wedding anniversary by having dinner
at Cresta Lodge with friends. I believe the Defendant's version that the Plaintiff had D sexual intercourse with her on 1 January 1996. On the facts and
circumstances this appears to me to be the more probable because it is clear that their marital relationship deteriorated after the beginning of 1996.
The Plaintiff also testified that the Defendant tricked him into having a child who must have been conceived in July/August 1995 because he was born on 3rd
April 1996. He said he had not planned to have the child within two years of marriage E and he blamed the defendant for discontinuing the use of contraceptives
without his knowledge. This allegation of the Plaintiff however fails because in his evidence the Plaintiff conveniently omitted to tell the court that the Defendant
had a miscarriage at the beginning of 1995, this fact was only revealed by the Defendant but was not disputed in F crossexamination of the Defendant. If it was
true that the Plaintiff did not want any children within two years of marriage he would in my view surely have attempted to shift the blame on to the Defendant
for the pregnancy that resulted in the miscarriage at the beginning of 1995. In my view up to the beginning of the 1996 the marriage may have had occasional G
difficulties or hiccups which are not uncommon in any marriage but these cannot be held to amount to the breakdown of the marriage. In the premises I find that
the Plaintiff has failed to proof [sic.] on a balance of probabilities that the marriage has broken down as a result of the allegations set out in his declaration and
his action for divorce is dismissed with costs." H
Before finally leaving consideration of this aspect of the case, it is to be noted that the judge a quo reached certain conclusions which may be
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third party. The most important of these factors is that the judge a quo clearly accepted
1999 (1) BLR p394

STEYN JA

1999 (1) BLR p395
STEYN JA
1999 (1) BLR p396
STEYN JA
factors to be taken into account when assessing the evidence relating to the allegations of the defendant as to the plaintiff's adultery with the
1999 (1) BLR p397

STEYN JA
the defendant's evidence that problems with the marriage started developing at the end of 1995 or the beginning A of 1996 when the plaintiff
gradually started coming home late at night. The judge a quo also accepted the defendant's evidence that the plaintiff last had sex with her on
1 January 1996.
(2) Whether the plaintiff and the third party committed adultery and caused the breakdown of the marriage B
(2) (a) The law

Section 15(1)(a) of the Matrimonial Causes Act (Cap. 29:06) provides:
"The court hearing an action for divorce shall not hold the marriage to have broken down irretrievably unless the plaintiff C satisfies the court of one or more
of the following facts, that is to say
(a) that the defendant has committed adultery and the plaintiff finds it intolerable to live with the defendant;. . ."
As regards the law, counsel for both parties accepted before this court that a case based on adultery can be D proved by circumstantial
evidence alone. That is a frequent occurrence as very often there is no direct eyewitness evidence of adultery. The inference is drawn from all
the surrounding facts and circumstances such as familiarity, opportunity and inclination. However, as stated by Innes C.J. in Kleinwort v.
Kleinwort 1927 A.D. 123 at p. 124, the evidence must be strong enough to warrant the inference, not merely that adultery might have E taken
place, but that it actually did happen.
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(Pty) Ltd. In the leading case of Gates v. Gates 1939 A.D. 150 :itSat
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whilst the standard of proof remained one based on the balance of probabilities that in cases of alleged adultery: F
1999 (1) BLR p395
STEYN JA
1999 (1) BLR p396
STEYN JA
1999 (1) BLR p397

STEYN JA
1 January 1996.
(2) (a) The law

The standard of proof is important. In the leading case of Gates v. Gates 1939 A.D. 150 it was suggested by Watermeyer J.A. at page 155, that
"the reasonable mind is not so easily convinced in such cases because in a civilised community there are moral and legal sanctions against immoral and
criminal conduct and consequently probabilities against such conduct are stronger than they are against conduct which is not immoral or criminal." G
We agree with the observation of counsel for the defendant in her very helpful written closing submissions prepared after evidence had been led
in this case, where she submitted that it was now 60 years since these observations were made by Watermeyer J.A. in Gates' case and that in
modern times and in this so called H "permissive age" there is now no inherent improbability per se about two persons in love, although not
married to each other, committing adultery. Mr. Marumo very properly conceded to us that this was now accepted as being the present day
view.
The approach of the trial judge, as indicated in his judgment, to the question of the adequacy of the circumstancial evidence in this case was
the correct one. It is supported by the authorities to which he referred. The
1999 (1) BLR p398
STEYN JA
question at issue between the parties on this aspect of the case was one on which the judge was entitled to A accept the defendant as a
reliable and credible witness and, having done so, to find sufficient evidence in the surrounding facts and circumstances to infer proof of the
fact that adultery did take place.
(2) (b) The facts B
It is convenient at this stage to consider the views of the judge on the credibility and reliability of the three separate parties before assessing
the nature and effect of their evidence.
The judge a quo's views on the evidence of the plaintiff is made plain in the extract from his judgment already quoted above under "The
Decision" on the first main issue. The judge said he did not believe the plaintiff's C evidence as to the date when the marriage first became
unhappy. He gives his reasons for not believing the plaintiff on this matter and on the contrary believed the evidence of the defendant. It is
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plaintiff and the third party in the extract hereinafter quoted from his judgement. D
1999 (1) BLR p396
STEYN JA
1999 (1) BLR p397

STEYN JA
1 January 1996.
(2) (a) The law

view.
1999 (1) BLR p398
STEYN JA
(2) (b) The facts B
true that he does not refer to "the demeanour" of any of the parties when giving evidence but he states in terms that he did not believe the
Mr. Marumo lodged very careful and exhaustive written submissions dated 1 October 1997 on behalf of the plaintiff and third party to assist the
judge who eventually gave his judgment on 12 December 1997. In those submissions Mr. Marumo made a number of criticisms of the defendant's
evidence and he repeated three of them in argument to us at the hearing of the appeal. The first was contained in paragraph 3.10(b) of his
submissions and was to the effect that the defendant contradicted herself in examinationinchief and in E crossexamination about the number
of times she saw the plaintiff and the third party together in the African Mall in Gaborone. We do not consider there is any substance in this
attack and it was specifically referred to in the judgment (as will be seen from the later extract from it) where the judge states he believed the
defendant in her evidence on this matter and explained she was "crossexamined closely on this point but never shaken". F
The second criticism of Mr. Marumo is to be found in paragraph 2.7(b) of his submissions and is to the effect that in evidenceinchief the
defendant stated the hotel bills were faxed from Thapama Hotel to her, whereas in crossexamination she said the bills were faxed to a friend
called Patrick because she did not want the fax sent to her work place. We see no real substance in this attack and attach no weight to it.
Lastly, Mr. Marumo drew G attention to what is described as the defendant being "positively dishonest" in her maintenance affidavit in respect
of the child and (see paragraph 2.7(h) of Mr. Marumo's written submissions) as regards her household expenses. The defendant was cross
examined at length about this matter and the judge a quo himself put some H questions to the witness and warned her of the consequences of
not telling the truth when under oath. As a result this aspect of the case must have been clearly in the mind of the judge when he came to
write his judgment but he does not refer to the matter as in any way affecting her credibility. That being so, it cannot assist in supporting Mr.
Marumo's attack on the defendant's credibility. Furthermore, the main
1999 (1) BLR p399
STEYN
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and Company (Pty) Ltd. Downloaded : Sat Apr 27 2024 12:47:54 GMT+0200 (South Africa Standard Time)
body of the evidence relating to the alleged adultery and especially the nights spent in the hotel in Francistown A came from the plaintiff
1999 (1) BLR p397

STEYN JA
1 January 1996.
(2) (a) The law

view.
1999 (1) BLR p398
STEYN JA
(2) (b) The facts B
1999 (1) BLR p399
STEYN JA
himself and the third party and not the defendant.
In all the circumstances we therefore reject the attack of Mr. Marumo on the defendant's credibility and conclude that the judge a quo, who
saw and heard her give evidence, was entitled to accept that evidence.
With this introduction we now turn to the evidence given relating to the alleged adultery. It is set forth in some B detail as regards the
plaintiff's evidenceinchief in the judgment as follows:
"On the allegations against him in connection with the third party, the Plaintiff denied committing adultery with her on 12th, 13th and 14th July 1996 at
Thapama Hotel in Francistown or at any time before or after these dates. He said he had known C the 3rd party from 1985 when they became lovers and that in
October 1988 their relationship was terminated by the 3rd party after they drifted apart, due to the fact that he was studying in the United Kingdom, whilst the
3rd party was studying in the United States of America.
The plaintiff told the Court that he was invited to a wedding of the 3rd party's sister at Tshesebe by the brother of the 3rd D party who was his long
outstanding friend. He said he booked at Thapama Hotel and further that as he did not know the way to Tshesebe he phoned the 3rd party asking for direction to
Tshesebe. On Friday 12th July 1996, he travelled in his car with the 3rd party to Francistown in a convoy of other vehicles of people who were going to attend the
wedding of 3rd party's sister in Tshesebe. On arrival at Thapama Hotel in Francistown the Plaintiff and the 3rd party checked into separate E rooms and their
rooms were numbers 220 and 221 situated on the same floor of the Hotel.
According to the Plaintiff, after checking in at Thapama Hotel, he went for dinner at the hotel restaurant where the 3rd party later joined him and after dinner
they each retired to their respective rooms to sleep. They had arranged to leave early for F Tshesebe and the next day, after they had breakfast together, the
3rd party joined him at the parking area from where they travelled in his car to join the convoy of other people and 3rd party's relatives to the wedding in
Tshesebe. They spent the whole day at Tshesebe mingling with people at the wedding. At about 7 p.m. on 13 July 1996 the Plaintiff informed the 3rd G party that
he was returning to Thapama Hotel, and she came with him in his car to Thapama Hotel where on arrival, they went to their respective rooms. According to the
Plaintiff there were only two of them in his vehicle when they returned to Thapama from Tshesebe and he said they never slept together on the night of 13 July
1996.
On 14 July 1996 the Plaintiff says the 3rd party had to see her family again and that morning he loaded his luggage in the F vehicle and waited for the 3rd
© 2018 Juta andatCompany
party (Pty)
the parking Ltd.who eventually arrived. He assisted her to load her luggage
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asked her to give him money and her hotel keys so that he could do the checking out of the hotel. The 3rd party gave him the money and keys and he went to
the reception where he
1999 (1) BLR p398
STEYN JA
(2) (b) The facts B
1999 (1) BLR p399
STEYN JA
1996.
party at the parking area who eventually arrived. He assisted her to load her luggage in his car. Whilst the 3rd party was still loading her luggage, the Plaintiff
1999 (1) BLR p400
STEYN JA
paid two separate accounts for room 220 occupied by himself and room 221 occupied by the 3rd party. The two accounts A were produced in evidence as
exhibits "D" and "E" respectively. Exhibit "D" being the account for room 220 that Plaintiff says he occupied, is issued by Thapama Hotel in the name of "Mr. and
Mrs. L. Mabote, NDB, Box 225, Gaborone" and was paid and signed by the plaintiff. On being asked by the court why his account was issued in the name "Mr and
Mrs L. B Mabote", when in fact he had not gone to Francistown with his wife and had not in fact stayed with his wife at Thapama Hotel, the Plaintiff replied that it
was a mistake that his account was addressed to "Mr. and Mrs. L. Mabote" because, according to him, when he checked in at Thapama he communicated with the
receptionist in Setswana who asked him in Setswana whether "A o na le mosadi", which he understood to mean "do you have a wife" to which question he
answered C in the affirmative. Exhibit "E" is issued in the name of "Ms O. Ramokhua", the 3rd party, and it shows it was paid and signed by the Plaintiff who
insisted in evidence that he paid this account with money given him by the 3rd party. The Plaintiff denied in his evidenceinchief that he committed adultery with
the 3rd party at Thapama Hotel. On 14 July 1996 the plaintiff returned to Gaborone with the 3rd party and some of her relatives in the Plaintiff's car." D
In the plaintiff's crossexamination, as regards the alleged adultery, the judge refers to his evidence as follows:
"Further under cross examination the Plaintiff said that he went to the 3rd party's place of work in December 1995 to greet E her after she returned from the
U.S.A, that when he phoned the 3rd party for directions to Tshesebe he told her he was booked at Thapama Hotel whereupon she also told him she had booked
at Thapama Hotel and that except for him and the 3rd party none of the 3rd party's relatives stayed at Thapama Hotel. He admitted that when he checked out at
Thapama he noticed that his account for room 220 was in the name of Mr. and Mrs. L Mabote and that he never took action to have the F hotel correct the
account to show he was not staying there in those names. He maintained that he paid the account of the 3rd party with the money she had given him and that he
signed both his account and that of the 3rd party. When the plaintiff closed his case the defendant's counsel applied for absolution from the instance." G
The defendant's evidence in evidenceinchief on the alleged adultery case is narrated in the judgment as follows:
"According to the defendant she received information that the Plaintiff was having an affair with the 3rd party. In June 1996 H the Defendant would go the
African Mall in Gaborone where the 3rd party was working and at lunch time she would observe the Plaintiff arrive there in his car to pick up the 3rd party and
they would then drive away. She observed this many times but told the Court she never asked the plaintiff about it because she was afraid of him.
1999 (1) BLR p401
STEYN JA
According to the defendant the Plaintiff never told her about the wedding of the 3rd party's sister, but when he did not come A home on 12 July 1996 she
suspected that he had gone to the wedding of the 3rd party's sister in Francistown. She later got information that the Plaintiff and 3rd party were seen together
staying at Thapama Hotel. On Tuesday 16 July 1996, i.e. Tuesday following the weekend of 14 July 1996, the defendant phoned Thapama Hotel and 'told them I
was Mrs. Mabote B and had been there with my husband and I wanted the invoice to claim from work. They faxed me the invoice written Mr. and Mrs. Mabote of
NDB and it showed to me that since my husband was always with Miss Ramokhua it means they were together at Thapama.' This was how the defendant came to
be in possession of a copy of exhibit 'D' which was C apparently used in Misca 434/95 in this Court in which the Defendant claimed maintenance for herself and
the minor child. Lastly the Defendant maintained that the Plaintiff had told her he was once in love with the 3rd party before the marriage and that their affair
ended in 1988. However she asserted that her husband was now having an affair with the 3rd party and that she usually sees them driving in or around
1999 (1) BLR p399
STEYN JA
1996.
party at the parking area who eventually arrived. He assisted her to load her luggage in his car. Whilst the 3rd party was still loading her luggage, the Plaintiff
1999 (1) BLR p400
STEYN JA
1999 (1) BLR p401
STEYN JA
Gaborone in his Mercedes Benz. She wanted a divorce against the Plaintiff D and damages against the 3rd party for committing adultery with her husband."
The third party's evidence in examinationinchief and in crossexamination is set out in the judgment as follows: E
"For her part the 3rd party told the Court that she works in the family business situate at the African Mall in Gaborone as an administrator and that she first
knew the Plaintiff in 1985 when they were students and lovers at the University of Botswana. Their love affair ceased in 1988 when she went to the U.S.A. and
the plaintiff to U.K. for further studies and she F is the one who terminated their affair in or about October 1988 after they drifted apart. She testified that she
next encountered the Plaintiff at the end of November 1995 when he phoned her because she said 'apparently his wife had told him I was back in Botswana.' In
December 1995 the Plaintiff visited her at her family business at the African Mall in Gaborone where they chatted about general matters and the Plaintiff again
visited her on two or so occasions in 1996. She G told the Court that she could have met with the Plaintiff three or four times between November 1995 and July
1996 and that during that period they never renewed their love affair.
The 3rd party denied committing adultery with the Plaintiff on 12, 13 and 14 July 1996 at Thapama Hotel. She said the H Plaintiff was invited to the wedding by
her brother and that a few days before the wedding at Tshesebe the Plaintiff telephoned her asking for directions to Tshesebe. She told him she did not know the
way to Tshesebe but informed him there could be a convoy of vehicles leaving on Friday 12 July 1996 for Francistown and then the next day from Francistown to
Tshesebe. The Plaintiff then told her that he would join the convoy and asked her to travel with him and she agreed. She admitted
1999 (1) BLR p402
STEYN JA
travelling with Plaintiff in his car on 12 July 1996 to Francistown and said she discovered that he had booked at Thapama A Hotel three weeks before the
wedding, whilst she herself had booked there a week before the journey to Francistown.
On arrival at Francistown her family, relatives and other friends went to stay in town whilst she and the Plaintiff checked in into separate rooms at Thapama
Hotel with the Plaintiff getting 50 per cent discount as he had a Cresta Card and she also getting 50 per cent discount because the family into which her sister
was marrying had arranged with Thapama Hotel that B people coming to the wedding should get 50 per cent discount. The 3rd party admitted that their rooms
were on the same floor but said they were separated by the staircase. Later when she went for dinner she found the plaintiff already there and they had dinner
together. After dinner she retired to her room and that night she never visited Plaintiff's room or C slept with him. She confirmed the Plaintiff's testimony that the
next day they travelled together to Tshesebe where they spent the whole day at her sister's wedding and that in the evening she returned to Thapama Hotel with
the Plaintiff in his car. On arrival at Thapama Hotel she retired to her room and she confirmed that the next morning she left Thapama with D the Plaintiff in his
car to join her relatives and then returned to Gaborone with some of those relatives in the Plaintiff's car on 14 July 1996.
The 3rd party testified that when she was loading her luggage in Plaintiff's car in the parking area in the morning of 14 July 1996 she gave him money and her
keys at his own request so that he could pay and do the checking out of the hotel for E both of them. The Plaintiff paid and brought her a receipt signed by him
(exhibit "E"). The 3rd party also told the Court that she did not know if any member of her immediate family stayed at Thapama Hotel on 12 July 1996 but said
her friends did.
Under crossexamination the 3rd party said she did not find it strange that the plaintiff asked her for directions to Tshesebe F instead of her brother who had
invited the plaintiff to the wedding nor did she find it strange that the plaintiff requested her to travel with him in his car to Francistown. She said she went with
the plaintiff to Tshesebe and back to Thapama Hotel because they travelled together to Francistown. The 3rd party told the Court that after being served with the
papers in G which the Defendant accused her of committing adultery with the plaintiff she considered it futile not to be seen with the plaintiff or in his car in
Gaborone because the damage had already being [sic.] done by the accusations and further that even if she avoided being seen with plaintiff in his car that
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the defendant's attitude that she was committing adultery with her Downloaded
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(2)(c) The decision
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her friends did.
would not change the defendant's attitude that she was committing adultery with her husband." H
(2)(c) The decision

After setting out in his judgment the evidence of the parties on the alleged adultery in some detail, which was necessary as this was a case
based on circumstantial evidence, the judge then dealt with his decision on the counterclaim for divorce as follows:
1999 (1) BLR p403
STEYN JA
"I now proceed to deal with the Defendant's counterclaim for divorce. According to the Defendant late in 1995 or early in A 1996 the Plaintiff began to arrive
home late in the evenings and later stopped having any meals in the matrimonial home. The Plaintiff lost complete interest in the Defendant from the time of her
confinement in April 1996 onwards and he moved into a separate room in the matrimonial home. At that time the Defendant received information that the
Plaintiff was being B regularly seen in town picking up the 3rd party in his Mercedes Benz at her place of work and the Defendant suspected that the Plaintiff and
3rd party had rekindled their love affair which the plaintiff told her in the early stages of the marriage terminated in 1988.
When the Plaintiff continued to come late at night and not to have any meals at home, the Defendant in June 1996 carried C out some surveillance to verify
and confirm the information she had received that her husband was having an affair with the 3rd party. She went to the African Mall in Gaborone many times
during the lunch hour where she would conceal or hide herself so that neither the Plaintiff nor the 3rd party would be able to see her. She would then see her
husband arrive at the 3rd party's place of work driving his Mercedes Benz; the 3rd party would emerge from the building and get into the car D which would then
be driven away by the Plaintiff. The Defendant said this confirmed to her that her husband was committing adultery with the 3rd party but she never confronted
him because she was afraid of him. I believe the Defendant's evidence that she used to see the Plaintiff pick up the 3rd party in his car at African Mall in
Gaborone over the E lunch hour. She was crossexamined closely on this point but was never shaken and she stuck to her allegations that the Plaintiff used to
pick up the 3rd party in his Mercedes Benz and that they could not see her on those occasions because she hid from them.
When the Plaintiff did not come home after work on 12 July 1996, the Defendant suspected that he had gone to the 3rd F party's sister's wedding with the 3rd
party in Francistown. The Defendant investigated and received information that her husband was seen with the 3rd party or in the company of the 3rd party on
12, 13 and 14 July 1996 at Thapama Hotel in G Francistown. According to the Defendant on the Tuesday following the weekend of 14 July 1996 or on 16 July
1996, she phoned Thapama Hotel and told them she was Mrs. Mabote who had been staying at the Hotel with her husband from 12 H to 14 July 1996 and that
she had misplaced the account and wanted a copy of the same in order to claim a rebate from her employers. Thapama Hotel faxed her a copy of the account
which had been issued and paid in the name of Mr. and Mrs. L. Mabote for room 220 and it is the original of this account which was produced in evidence as
exhibit 'D'. The Defendant then concluded that her husband had been staying at the hotel under the name of Mr. and Mrs. Mabote with the 3rd party and that he
committed adultery with the 3rd party from 12 to 14 July 1996 at Thapama Hotel.
On the evidence I find it strange that although the 3rd party's sister was getting married, that sister and other relatives of the 3rd party were
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her friends did.
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staying with friends and relatives in town whilst the 3rd party chose to stay at Thapama Hotel where none of her relatives A were staying but where the
Plaintiff by some coincidence was also staying. The Defendant had on many occasions seen the Plaintiff picking up the 3rd party at her place of work in his car.
Whilst there is nothing wrong with the 3rd party staying at Thapama Hotel under normal circumstances, one would have expected her on this occasion to have
been staying where B her sister who was getting married and other relatives were staying. It will be recalled that the plaintiff and 3rd party admitted that they
used to be lovers until 1988. It is too much of a coincidence in my view that they were often seen together by Defendant in Plaintiff's car at the African Mall, that
they travelled together in Plaintiff's car to Francistown on 12 July 1996, that they both checked in at the same time at Thapama Hotel on 12 July 1996, and were
allocated rooms 220 and 221 on the same floor at Thapama Hotel. The Plaintiff's room was in fact registered in the name of Mr. and Mrs. C Mabote and the
Plaintiff who is a very intelligent person, in checking out was given and signed for and paid the account in the name of Mr. and Mrs. Mabote. He never queried
why his account was issued in those names or requested that "the mistake", if it was a mistake at all, should be corrected in his account. I find that when the
Plaintiff booked to stay at D Thapama Hotel, he booked in the name of Mr. and Mrs. Mabote knowing full well that he would not be bringing his wife to Francistown
but that he would be staying in the hotel with the 3rd party. I reject the Plaintiff's testimony that on arrival at Thapama Hotel the receptionist misunderstood him
to say he was with his wife in answer to a question when in effect all E he merely said was he was married.
I do not believe the Plaintiff was given money by the 3rd party to settle her account at Thapama Hotel. What I find probable is that the Plaintiff booked at
Thapama Hotel as Mr. and Mrs. Mabote where he had intended to stay and did stay in one F room with the 3rd party, and further that the room that was booked
in the name of the 3rd party was just for the purpose of covering up in the event the Plaintiff and 3rd party were caught staying together at Thapama Hotel by
the Defendant. What I also find happened is that the Plaintiff used his own money to settle and sign the accounts for rooms 220 and 221 and I reject both the
Plaintiff's and 3rd party's assertion that the 3rd party gave the Plaintiff money in order that the Plaintiff G should settle her account at Thapama Hotel in the
morning of 14 July 1996. As the holder of a Cresta Card, the Plaintiff was entitled to 50 per cent discount at Thapama Hotel and the 3rd party's assertion that she
was also entitled to 50 per cen discount because the family her sister was marrying into had arranged with Thapama Hotel to give discount to people H coming
to the wedding is in my view false. If that were the case many people who had gone to the wedding would have been staying at Thapama Hotel instead of only
Plaintiff and the 3rd party.
The Plaintiff and the 3rd party were very vague in their evidence when faced with questions as to what they did at Francistown and at Tshesebe, in particular as
to what happened at Thapama Hotel, and
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her friends did.
(2)(c) The decision

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perhaps understandably so. The Plaintiff in evidence told the Court in no uncertain terms that they were the only two people A amongst those that had
travelled from Gaborone to Francistown and Tshesebe for the wedding who were staying at Thapama Hotel. On this point the 3rd party said she did not know if
her immediate relatives stayed at Thapama Hotel on the night of 12 July 1996 but that some friends did stay at that hotel. I find it strange and do not believe the
3rd party that B she did not know if some of her immediate relatives stayed at Thapama Hotel, surely if any member of her immediate family stayed at
Thapama Hotel she would know. I therefore, find as a fact that except for her, none of the 3rd party's immediate relatives stayed at Thapama Hotel and that only
the Plaintiff and 3rd party stayed at that hotel as testified by the Plaintiff. C
The Plaintiff and the 3rd party went to the wedding at Tshesebe together in Plaintiff's car on 13 July 1997, they returned to Thapama Hotel in the evening of
that day together in Plaintiff's car, they spent the night on 13 July 1996 at Thapama Hotel whilst the rest of the people, including the 3rd party's parents and
relatives spent the night elsewhere in Francistown. In the D morning of 14 July 1996 they checked out of the Thapama Hotel after the plaintiff had paid the
accounts of both parties and they joined the rest of the people in town to return to Gaborone in a convoy with the 3rd party travelling, although this time with
some of her relatives, with the Plaintiff in his car. At Thapama Hotel they admitted that they had meals together E in public at least twice and when the plaintiff
sought directions to Tshesebe he phoned the 3rd party and not her brother, his friend, who had allegedly invited the Plaintiff to the wedding.
The Defendant's evidence in this case is circumstantial because there is no direct evidence that the Defendant caught her husband and the 3rd party in the act
of committing adultery. In Kleinwort v. Kleinwort 1927 A.D. 123 Innes C.J. held, inter F alia, that where a party relies on circumstantial evidence to prove
adultery 'the evidence must be strong enough to warrant the inference, not merely that adultery might have taken place, but that it actually did take place', at
page 124. This pronouncement of the law has been accepted in South Africa and the decisions of the South African courts which are not binding but highly
persuasive on this court have emphasised that: G
'a plaintiff seeking to establish adulterly by inference from the association or conduct of the allegedly guilty parties must put before the Court evidence to
satisfy the guarded discretion of a reasonable man that that association or conduct (a) afforded opportunity for commiting adultery; and, in addition, (b)
that it evinced a desire on the part of each of the parties to commit adultery with the other; and also (c) that it evinced a willingness to do so on the part
of each of them. Unless a H plaintiff satisfies the Court affirmatively on all these three heads, he must fail, for suspicion, even very grave suspicion, is not
© 2018 Juta and enough,
Company and if the
(Pty) Ltd.Court has any genuine doubt, the defendant is entitled toDownloaded
the benefit of: it."
SatSee
AprTruter v. Truter
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12:47:54 Another 1938 N.D.P.
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enough, and if the Court has any genuine doubt, the defendant is entitled to the benefit of it." See Truter v. Truter and Another 1938 N.D.P. 250 at pp.
2545.
1999 (1) BLR p406
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Taking into account all the above authorities and evidence, in my view the only reasonable inference to be drawn from all A the facts and circumstances in this
case is that the Plaintiff and the 3rd party committed adultery at Thapama Hotel and Casino in Francistown on 12, 13 and 14 July 1996. In my view that
Defendant's evidence satisfies all the three elements in Truter v. Truter supra and from the facts and circumstances I have no doubt that Plaintiff and 3rd party
committed adultery as alleged in the counterclaim. In the premises the Defendant has proved on a balance of probabilities that the Plaintiff and B 3rd party
committed adultery as alleged in her counterclaim. I therefore find that the marriage has broken down irretrievably on account of the reasons alleged by the
Defendant and accordingly the Defendant's counterclaim for divorce succeeds with costs against both the Plaintiff and 3rd party." C
To sum up, as already indicated, we are quite satisfied that not only did the judge approach the question of the adequacy of the circumstantial
evidence on the correct legal basis, but also that on that evidence he was fully entitled to draw the inference that the plaintiff and the third
party committed adultery as alleged in the counterclaim. The evidence given before him concluded in September 1997. The parties' written
submissions D were made available to him in October 1997 and his judgment was completed and delivered by him in open court on 12 December
1997. This was a very commendable and expeditious result in view of the extensive and complicated nature of the evidence in the action. We
are not aware of whether the typed record of proceedings was available to the judge, or whether he was required to rely on his own notes of
the evidence, when he wrote his judgment.The transcript of the whole evidence is now available to this court. A reading of it only serves to E
reinforce and amplify the correctness of the judge's decision.
One of the factors we regard as very important in this case is that the plaintiff and the third party were lovers when they parted in 1988 and
had been so for at least two years . There was then a separation of about seven years until the third party returned to live in Botswana in the
winter of 1995. She and the plaintiff then began to F see each other again. By the autumn of 1996 a dramatic deterioration occurred in the
marriage of the plaintiff and the defendant. With the benefit of hindsight, based on the events found to have occurred by the trial judge, it is
clear that the most probable explanation for this change was the renewed presence of the third party in Botswana and her increasing contact
with the defendant . G
Matters came to a head when the plaintiff and the third party departed for the wedding of the third party's sister on 13 July 1996 in Tshesebe.
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There is no need to rehearse the extraodinary series of coincidences which must have occurred if the relationship of the plaintiff and the third
party was then purely platonic, as was insisted upon by both of them in the witness box. The trial judge has highlighted all of them with care
and obvious insight in the extracts we have taken from his judgment. H
The most damning evidence of an adulterous relationship is to be found in the "Guest Accounts" for rooms 220 and 221 relating to the two
nights of Friday and Saturday, 12 and 13 July 1996. Both were paid for and signed by the plaintiff. The double room 220 was booked in the
names of the plaintiff and his wife (the defendant). The explanations by both the plaintiff
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and the third party for such cogent evidence were almost farcical and rightly disbelieved by the trial judge. A
There were many proved circumstances in this case which are all consistent with the defendant's counterclaim of adultery being established.
Each by itself might amount only to suspicion or less but, like the strands in a strong cable, they are present in sufficient number, when taken
together, amply to justify the trial judge's decision to find the adultery in the counterclaim proved on a balance of probablity. We therefore now
turn to consider the B question of any damages due by the third party to the defendant.
(3) Damages in respect of contumela and loss of consortium
Having decided that the court a quo was correct in coming to the conclusion that the respondent had proved the commssion of adultery by the
plaintiff and the third party it is necessary to consider the award made by the court C below in respect of contumelia and the loss of
consortium sustained by the defendant as a result of the breakdown of the marriage. The defendant claimed damages from the third party under
the two headings mentioned above as follows:
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(a) P20,000.00 for contumelia or insult and D
(b) P30,000.00 for loss of comfort, society and services, (consortium).

These are the damages the defendant alleges she suffered as a result of the adultery between the third party and the plaintiff.
The court a quo came to the conclusion that an appropriate award in respect of contumelia was an amount of E P7,000.00 and in respect of
the loss of consortium of her spouse P13,000.00 and awarded these amounts as damages to be paid by the third party.
In the notice of appeal the third party challenged the correctness of this award. The relevant paragraph in the notice reads as follows:
"even if the Court a quo was incorrect concluding that adultery had taken place, the damages awarded to the respondent F are far too excessive and are
without justification."
In its judgment the court analysed the law applicable and referred to The Law of Persons and the Family by G P.O.P Boberg at pages 183 and
184, where the learned author says the following:
"A person, whether male or female, who intentionally has sexual intercourse with someone whom he knows to be married, commits the delict of adultery
against the latter's spouse. Dubbed the corespondent, he incurs liability to compensate the H cuckolded spouse for contumelia (insult) he has inflicted on him,
and, where divorce ensues, for loss of consortium of his spouse."
The court proceeded to hold that because in the present case the adultery committed has resulted in divorce, the pronouncement by the
learned author in the passage cited above was therefore apposite in this case.
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1. The defendant proved that the third party was "usually seen in public with the plaintiff in his Mercedes Benz car in and around Gaborone."
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In assessing the quantum of the damages to be awarded, the court identified the following factors as being of an A aggravating nature:
2. The defendant had also established that the third party and plaintiff were together and were seen at her sister's wedding in public in
Francistown and Tshesebe. B
3. That the plaintiff and the third party "were staying together at Thapama Hotel and Casino from 12th to 14 July 1996".
4. The third party testified that "she did not find it strange to be seen many times in Gaborone with the plaintiff in his car even though she
knows that the plaintiff is married to the defendant, indeed she seems indifferent to the feelings of the defendant." C
It was with reliance on these factors that the court came to the conclusion that in its view they
"clearly show that the third party has inflicted an insult on the defendant by her conduct. And therefore that the defendant is entitled to payment of damages
by the third party." D
Finally, the court held that for the purposes of determining the quantum of damages for contumelia it had considered and taken into account
"The evidence of the defendant, particularly her testimony that she still loves the plaintiff and would consider accepting him E back if he changed his mind and
terminated his relationship with the third party."
Taken together these were the factors and circumstances which the court a quo took into account in concluding that the defendant was
entitled to the payment of P7,000.00 as damages payable by the third party for contumelia.
In respect of the award of damages for the loss of consortium the reasoning of the court a quo was the following: F
"The plaintiff is a qualified accountant employed by the National Development Bank which is a large parastatal organisation. The plaintiff therefore holds a very
high position in what is no doubt a prestigious organisation. He has even told this Court he needed to own and drive a Mercedes Benz because it accords with his
status at his place of G employment and a fortiori in the society. For as long as the defendant was married to the plaintiff she had greater chances in my view of
coming into contact and rubbing shoulders with the cream of the society and all such chances have now been shattered by this divorce."
The court concluded under this heading by saying the following : H
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"It is common cause that during the course of the marrige the Plaintiff used to make or throw parties for the defendant to celebrate special occasions that
affected her dearly such as her birthdays, all of which will now just become dreams for the defendant because of this divorce which has been caused by the
conduct of the third party."
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The court referred to the fact that the defendant's net salary was P1098 per month as a computer clerk, and that A she was married to a
husband who earned more than P9,000.00 gross salary and P4,800.00 net salary per month and that he admitted giving her at least P800.00 per
month during the course of the marriage.
It is all these factors and circumstances which the court regarded as "very aggravating" which it took into B account in coming to the
conclusion that the defendant should be awarded P13,000.00 as damages against the third party for loss of consortium, "or the loss of a
spouse" as a result of the third party's adultery with the plaintiff.
We have some concerns about the approach adopted by the court a quo as set out above. In the first place, the court appears to have
attributed all the blame for the adultery commited during the period of 12 to 14 July 1996 to C the third party. In this respect, it must be
pointed out that the initiative came from the defendant's husband the plaintiff. He suggested travelling with the third party and made all the
arrangements. The same consideration applies to the circumstances in which the parties (the plaintiff and the third party) made contact with
one another. It was common cause that it was the plaintiff who sought out the third party and initiated a resumption of their D relationship
after a separation of some seven years.
The court does not seem to have attached any weight to the fact that a prior relationship had existed between the parties and they had been
in love with one another for some three years. Indeed, they only drifted apart in 1988 because the one went to the U.K. and the other to the
United States to study. It is against this background that E the conduct of the third party must be assessed when she responded positively to
the appellant's initiative which led to the resumption of their relationship.
The evidence established that adultery was committed only during the two nights the two parties stayed at the hotel in Francistown. Of
importance in this regard is the fact that the plaintiff had already, two days previously, issued a summons and had it served on the respondent
before embarking on the trip to Francistown. In these F proceedings he alleged that the marriage had irritrievably broken down and sued for
divorce.
It is also clear that it was only after the institution of the divorce proceedings, and more specifically after the allegation of adultery had been
made by the defendant, that the third party appears to have abandoned discretion and allowed herself to be seen in public with the plaintiff. G
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"It is common cause that during the course of the marrige the Plaintiff used to make or throw parties for the defendant to celebrate special occasions that
affected her dearly such as her birthdays, all of which will now just become dreams for the defendant because of this divorce which has been caused by the
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divorce.
Whilst these facts in no sense excuse the conduct of the third party, they are considerations which we believe the court a quo should have
In so far as the loss of consortium is concerned, the court placed considerable emphasis on the fact that according to the defendant's
testimony she "still loves the plaintiff and would consider having him back, if he H changed his mind and terminated his relationship with the
third party."
It is our view that this evidence should be viewed with caution. It is in conflict with the fact that the defendant quite understandably
evinced considerable resentment because of the way her husband had behaved towards her during the last seven months of their marriage.
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Of even greater significance, however, is the fact that the defendant herself sued the plaintiff for divorce. In her A counterclaim she herself
alleges that "as a result of this adultery, defendant would find it intolerable and does find it intolerable to cohabit with the plaintiff". Her attitude
as reflected in the pleadings does, in our view, taint her protestatons of ongoing love and affection for the plaintiff and her alleged willingness
to resume cohabitation.
We also comment on the reasoning of the learned judge concerning the status and relative financial affluence of the parties. We would not like
to be thought to suggest that no weight should be attached to the status of those B whose marriage is destroyed by an adulterous affair.
However, care must be taken not to attach undue importance to this consideration. This is more particularly so in respect of the financial status
of those involved.
Human dignity is common to both the rich and the poor. Status is not the sole prerogative of the affluent or those C who are socially prominent.
The loss of consortium of the husband or wife is no less painful because the sufferer is poor rather than wealthy. The fact that one no longer
rubs shoulders with one's social set, drives in the Mercedes Benz and has parties thrown for one, does not necessarily place a claimant for
damages in an advantageous position vis `a vis her or his more humble, less affluent counterpart. D
We would suggest a great deal depends on the duration of the marriage, its stability, the character of the spouses and the value base to which
the parties concerned subscribe, rather than to the trappings of wealth or social status. A humble wife living in a small closeknit community,
who is respected for her commitment to the welfare of her family, and who has earned the respect of her peers, would suffer no less loss of
dignity and E deprivation by the breakdown of her marriage caused by an adulterous affair, than a wealthy urban socialite.
Finally, we point to the fact that the court does not appear to have applied its mind to the fact that the defendant was only about 30 years old
at the
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We proceed next to examine the approach the courts in Southern Africa, in general, and in Botswana, in F particular, have adopted when
1999 (1) BLR p409
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divorce.
Whilst these facts in no sense excuse the conduct of the third party, they are considerations which we believe the court a quo should have
In so far as the loss of consortium is concerned, the court placed considerable emphasis on the fact that according to the defendant's
testimony she "still loves the plaintiff and would consider having him back, if he H changed his mind and terminated his relationship with the
third party."
It is our view that this evidence should be viewed with caution. It is in conflict with the fact that the defendant quite understandably
1999 (1) BLR p410

STEYN JA
of those involved.
at the time of the divorce and might well remarry.
quantifying damages for adultery. The locus classicus in this regard is the judgment in the South African Court of Appeal by Solomon C.J. in
Viviers v. Kilian 1927 A.D. 449.
The learned Chief Justice sets out the legal principles upon which this form of delictual claim is based as follows at pages 455 to 456: G
"damages in a claim against the adulterer are recoverable on two entirely separate and distinct grounds; first on the ground of the injury or contumelia
inflicted upon the husband, and secondly on the ground of the loss of the comfort, society, and services of his wife. This is clearly laid down by Grotius in the
passage already cited, and his statement of the law was H adopted by the Privy Council in the case of Norton v. Spooner. In his judgment Lord Justice KNIGHT
BRUCE, says: 'Now the charge of adultery, as made the subject of an action, may be viewed possibly in two ways; one, where there is no damage proved but
the mere fact of the dishonour of the wife, bringing with it, more or less, according to circumstances, dishonour upon the husband without more
1999 (1) BLR p411
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substantial and tangible mischief; another where, in addition to the wound inflicted upon feelings of delicacy, there is also A what I have called substantial and
tangible mischief or actual and positive damage.' In the judgment Grotius' statement of the law was unreservedly accepted by the Privy Council, the LORD
JUSTICE saying: 'There is nothing, we believe , in any one of these jurists calculated to shake the confidence which their Lordships entertain in the accuracy of
the opinion of B Grotius.' And Grotius is clear that damages may be given on two gounds, first for the injury done to the husband, and secondly, for the actual
damage which the husband may have sustained. Such damage would be caused by the loss of the society, comfort, and assistance of his wife in consequence of
the adultery."
In dealing with the considerations that apply to the determination of the amount of the damages to be awarded C due to the injury or
contumelia inflicted upon the plaintiff by the adultery committed with his wife, the learned Chief Justice points to the fact that the quantum of
the damages recoverable may vary greatly. He goes on to say, ibid.:
"Take, for instance, the case of a refined woman to whom her husband is greatly attached, and who has been debauched D by some designing profligate. The
husband, out of his affection for her, is prepared to forgive her and condone her misconduct, but if he nevertheless decides to proceed against her seducer, there
is no reason why substantial damages should not be awarded. Again an extreme case on the other side would be where the husband is married to a prostitute;
in E such a case it is difficult to conceive of a Court awarding any damages."
Having calculated the factors to be considered in casu, the learned Chief Justice concludes by saying at p. 457: F
"a careful consideration of the circumstances of this case compels us to think that the trial Judges have been too liberal in their estimate of damage."
The learned Chief Justice continues: G
"It is not desirable that actions of this nature should be encouraged; but on the other hand it is only right that profligate men should realise that they cannot
commit adultery with married women with impunity."
The court then concludes by saying that: H
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of those involved.
at the time of the divorce and might well remarry.
quantifying damages for adultery. The locus classicus in this regard is the judgment in the South African Court of Appeal by Solomon C.J. in
Viviers v. Kilian 1927 A.D. 449.
The learned Chief Justice sets out the legal principles upon which this form of delictual claim is based as follows at pages 455 to 456: G
"damages in a claim against the adulterer are recoverable on two entirely separate and distinct grounds; first on the ground of the injury or contumelia
inflicted upon the husband, and secondly on the ground of the loss of the comfort, society, and services of his wife. This is clearly laid down by Grotius in the
passage already cited, and his statement of the law was H adopted by the Privy Council in the case of Norton v. Spooner. In his judgment Lord Justice KNIGHT
BRUCE, says: 'Now the charge of adultery, as made the subject of an action, may be viewed possibly in two ways; one, where there is no damage proved but
1999 (1) BLR p411
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the adultery."
"the justice of the case will be met by reducing the damages [awarded] in the court below [from £50] to £5".
Ramsbottom J. in the case of Valken v. Berger 1948 (3) S.A. 532 (W) at p. 536, viewed of particular significance the fact that the adultery was
accompanied by enticing away by the third party and that
1999 (1) BLR p412
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"The defendant has persisted in her adulterous relationship with the plaintiff's husband and lives openly with him and A pretends to be and calls herself his
wife. All this seems to me to constitute a very serious injuria."
He goes on to say:
"The defendant has shown a wanton and flagrant disregard for the rights and feelings of the plaintiff. She has ursurped the B plaintiff's position and has caused
the plaintiff to be relegated to the ignominious status of a deserted wife."
Having said explicity that it is "impossible to compensate a woman happily married for the suffering and loss C which she sustains when her
husband is enticed away from her by another woman" the court decided to award a sum of £1,000 as lump sum damages, in respect of both the
contumelia and the loss of consortium which it describes as "substantial" damages.
For recent developments in the South African jurisprudence see: R.G. Mckerron, The Law of Delict (7th ed.) p. D 167; Grobbelaar v. Havenga
1964 (3) S.A. 522 (N) at p. 525. Bruwer v. Joubert 1966 (3) S.A. 334 (A), Strydom v. Saayman 1949 (2) S.A. 736 (T) and Law of Damages by
Visser and Potgieter at pp.421 to 423 and the cases cited by the authors.
The most recent judgment in the South African courts is that of King J. in Van der Westhuizen v. Van der Westhuizen 1996 (2) S.A. 850 (C).
The third party in this case did not oppose the action and having heard E evidence from the plaintiff, King J. described various factors which,
taken together, caused the court to categorise the conduct of the third party as follows at p. 852G:
"In short one can hardly imagine a more callous disregard for the marriage relationship or a more blatant intrusion into a F previously happy and fulfilled
marriage."
The aggravating features identified by the learned judge at page 852 of the report, arose from the fact that the husband and wife were not
only married but jointly running a business. The third party commenced employment G as a receptionist in their joint enterprise. The marriage
deteriorated after a relationship developed between the plaintiff's husband and the third party. Prior to the latter's intervention the plaintiff
testified that they had a good marriage, they were very close, worked together, spent much time time together and were very happy. Despite
requests on the part of the plaintiff that her husband should discontinue the relationship he refused to do so. Indeed the opposite happened. He
brought the third party into the common home and they moved into the H bedroom. The plaintiff testified that her husband turned violet
towards her and eventually dismissed her from her employment. This led the court to comment as follows at p.852I:
1999 (1) BLR p413

STEYN JA
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plaintiff has undoubtedly suffered. She has experienced the disintegration of her marriage, the hostility of her husband A and the hurt and humiliation of
a woman whose marriage has been violated in the most grievous manner."
1999 (1) BLR p411
STEYN JA
the adultery."
"the justice of the case will be met by reducing the damages [awarded] in the court below [from £50] to £5".
Ramsbottom J. in the case of Valken v. Berger 1948 (3) S.A. 532 (W) at p. 536, viewed of particular significance the fact that the adultery was
1999 (1) BLR p412
STEYN JA
He goes on to say:
marriage."
1999 (1) BLR p413

STEYN JA
"The plaintiff has undoubtedly suffered. She has experienced the disintegration of her marriage, the hostility of her husband A and the hurt and humiliation of
The court continues and says at pp. 852 J853:

"Marriages remains the cornerstone, the basic structure of our society. The law recognises this and the Court must apply B the law. I regard this as a
disgraceful case of conscious and deliberate desecration of the marriage relationship, necessitating an award of damages (I intend to award one lump sum)
which will reflect the serious nature of the second defendant's misconduct." C
The court awarded R20,000.00 by way of damages.

The reported cases which we could find in Botswana are, firstly, the decision in Bester Madumetse v. Robert Molapo reported in 1982(1) B.L.R.
102. Having cited South African and Lesotho authorities, O'Brien Quinn C.J. said the following at p. 106: D
"Taking the South African decisions on damages and the Lesotho case one can see that an award of damages for contumelia must entirely depend on the
circumstances of each case, on the positions of the parties in society, on their characters, on the general view on adultery in the society in which the parties live
and on the ridicule, illwill and opprobrium suffered by the plaintiff as a result." E
The court concluded that because the plaintiff suffered no loss in his standing or dignity it could not find any contumelia or injuria and made no
award of damages.
In the course of his judgment O'Brien Quinn C.J. cited a Lesotho judgment in the case of Thabane v. Thabane F and Another 197173 L.L.R.
145. He quoted with approval a passage from this judgment delivered by Evans J. which reads as follows:
"As to contumelia, on the facts of this case it is difficult to conceive that the plaintiff's standing and dignity as a civil servant G were impaired because his
colleagues and neighbours may have been aware of the affairs between his wife and the second defendant, if they did know. . . . Dissolution of marriage takes
up an inordinate amount of time in this court. Parties appear disclosing in public a troubled and unhappy matrimonial life, known to their neighbours and friends,
but that does not mean that they are shunned or ostracized. The standard of morality has not improved over the years. Unfortunately, H cases such as this are
now quite commonplace; morals have deteriorated to such an extent that it has become a matter of public indifference."
The second Botswana decision is the case of Ngakae v. Ngakae and Another 197980 B.L.R. 248, in which Hannah J. held that the common law
right to claim damages against corespondent had not been abolished by
1999 (1) BLR p414
STEYN JA
statute. In assessing the damages to be awarded, the learned judge set out the facts of the matter as follows: A
"The parties were married on 10th February 1972, the Plaintiff then being 55 years of age and the first Defendant, 47 years. There are no children of the
marriage. The Plaintiff testified that after the marriage both he and the first Defendant lived happily together and he built a house for them at Mogoditshane.
They moved into that house on 2nd March 1977 and lived B there until 11th September 1978. On that day when the Plaintiff returned to the house he found that
the second Defendant had been installed there. It was made clear by both Defendants that the Plaintiff's presence was not welcome and the Plaintiff was forced
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or in
the veldt and his wife replied that he should return to Gaborone whilst the second Defendant said he should go away. Although the Plaintiff returned the following
day the first defendant insisted she did not want him there and it appeared to the Plaintiff that the second Defendant was ready to fight D him. Since that time,
1999 (1) BLR p412
STEYN JA
He goes on to say:
marriage."
1999 (1) BLR p413

STEYN JA


award of damages.
1999 (1) BLR p414
STEYN JA
to leave. He said he had little or no choice in the matter as the second Defendant was younger C and bigger. He said he asked whether he was in his house or in
according to the Plaintiff, both Defendants have lived together at the Mogoditshane house openly as man and wife."
He concluded as follows at p. 249:

"There is no evidence as to the length of the relationship between the two Defendants before 11th September 1978 or as to E the circumstances in which that
relationship began. I must approach the matter on the basis that the second Defendant managed to gain the wife's affection and then in an impudent and brazen
manner decided to move in and set up home with the wife in what was the matrimonial home. That this blatant conduct aggravated the distress and injury
suffered by the Plaintiff, I have no doubt. I must, however, bear in mind that damages should be awarded by way of compensation and are F not exemplary or
punitive."
The court went on to say "In assessing damages I take account of the Plaintiff's age and the unlikelihood that he will remarry." The court then
concluded by saying: G
"It perhaps goes without saying that it is impossible to convert, with any measure or [sic.] precision, the damage suffered through contumelia and loss of
consortium into a monetary award but bearing in mind all the foregoing factors I consider an award of P1 000 as adequate. . ." H
It is clear from the above analysis of the decisions cited and of the awards made by the courts in Southern Africa, including those in South
Africa, Lesotho and Botswana, that these courts have found it difficult to distil guidelines that have universal application when the amount of
the damages to be awarded for contumelia and the loss of consortium is assessed. The
1999 (1) BLR p415
STEYN JA
approach of our courts also mirrors a community's attitude towards adultery. There can be no doubt that in many A modern societies adultery
no longer carries the stigma that it did 50 years ago. This in turn has had an impact on the degree of the loss of dignity sustained by the
innocent spouse.
Having said that, the courts cannot be seen to ignore the fact that our common law gives recognition to the right of a party to claim delictual
damages for the harm and the injury sustained by a wronged spouse. The quantum B of such damages will however, inevitably be influenced
inter
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Whilst, therefore an action for damages for adultery is enforceable in law it is as Solomon C.J. said some 70 years ago (see the Viviers' case
1999 (1) BLR p413

STEYN JA


award of damages.
1999 (1) BLR p414
STEYN JA

punitive."
1999 (1) BLR p415
STEYN JA
innocent spouse.
inter alia, by the attitudes of a community towards the breach of the marital obligation to observe fidelity.
above) "not desirable that actions of this nature should be encouraged". C
Indeed good reasons exist why such actions should be discouraged. They are often a reflection of bitterness caused by the pain attributable to
a breakup of a marriage. Understandable as this is, such an attitude often permeates not only the relationship between the husband and the
wife but also between the spouses and their children, to the detriment of the wellbeing of the latter. D
It is our view that the legal profession has a clear duty in this respect. For example, in this case the parties would have been so much better
served by their legal advisers if they had vigorously pursued the negotiation of a settlement. This would have been in the interests not only of
the parties themselves but also of the minor child.
Finally under this head we need to deal with the very valid consideration raised by King J. in the passage cited E from his judgment in the Van
der Westhuizen case, i.e. that "marriage remains the cornerstone, the basic structure of our society."
That, this truism is relevant in every divorce case speaks for itself. However, we do not believe that an award of substantial damages made
against adulterers would have any significant deterrent effect, or that it would reduce F the incidence of marital breakdown.
We have concluded that the damages awarded by the court a quo against the third party in this case cannot stand for two compelling reasons.
In the first place, the learned judge having delivered a fair and carefully reasoned judgment on the merits of the case, in our view erred when
considering the factors to be taken into account when determining damages. We G have referred earlier to these, but summarise some of the
most important ones. They are:
1. He appeared wrongly to attribute the breakdown of the marriage exclusively to the wrongful conduct of the third party.
2. He attached no or insufficient weight to the fact that the defendant proved only that adultery occurred on one H occasion, i.e. between 12
and 14 of July 1996.
3. He failed to take into account the fact that the adultery occurred after cohabitation between the spouses had already ceased. They had for
all practical purposes been living apart for some six months before the proved adultery was committed. Indeed divorce proceedings had already
been
© 2018 Juta and Company (Pty) Ltd. Downloaded : Sat Apr 27 2024 12:47:54 GMT+0200 (South Africa
1999 (1)Standard
BLR p416Time)
1999 (1) BLR p414
STEYN JA

punitive."
1999 (1) BLR p415
STEYN JA
innocent spouse.
been
1999 (1) BLR p416

STEYN JA
instituted by the plaintiff, citing the breakdown of the marriage as a cause of action in the divorce suit. A
4. The court also seemed to have accepted without question the assertion by the defendant that she was willing to assume cohabitation with
her husband, when she had herself asserted that such cohabitation was impossible because of his infidelity and that she herself was seeking a
dissolution of the marriage. B
5. In our view the court attached undue weight to the affluence and to the status of the parties.
6 The court did not take into account the fact that the parties had only been married for two years when cohabitation ceased as from 1
January 1996. (They were married in December 1993). C
The second reason for exercising our discretion to reduce the award made is that, if regard is had to all the circumstances, including the
aggravating features correctly identified by the learned judge, the award is excessive. This is apparent from a review of the awards made in
Botswana and other Southern African courts.
We agree with the view expressed by Hannah J. in the Ngake case, cited above where he said that "it is D impossible to convert with any
measure of precision the damage suffered through contumelia and loss of consortium into a monetary award. . ." See also the comments of
Ramsbottom J. in Valken v. Berger cited above, at p. 537.
We have decided to reduce the damages awarded substantially with due regard to all the circumstances including the aggravating features
referred to by the court a quo. E
In the result, the third party's appeal against the damages decreed by the court a quo is upheld. The award of P7,000.00 as damages for
contumelia is set aside. In its place this court orders payment to the respondent by the third party as damages for contumelia in the sum of
P2,000. The award of P13,000.00 decreed by the court a quo as damages for loss of consortium is also set aside. In its place this court orders
the third party to pay the F respondent the amount of P5,000.00 under this head.
(4) The award made by the trial court as maintenance for the minor child of the marriage
TheJuta
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"A(I) The plaintiff shall pay maintenance of P600.00 per month for the minor child from 31 December 1997 to 30 november 1998.
1999 (1) BLR p415
STEYN JA
innocent spouse.
been
1999 (1) BLR p416

STEYN JA
The court's order under this heading reads as follows: G
(II) With effect from 31 December 1998 the Plaintiff shall pay P1 200 per month as maintenance for the child until this child reaches 21 years or completes
schooling, whichever is later. The Plaintiff shall also pay for all the educational expenses of H the child and ensure that the child is covered at all times in
Plaintiff's medical aid."
The reasoning advanced by the trial court for making this order reads as follows:
1999 (1) BLR p417
STEYN JA
"The last question for determination is the amount of maintenance the Plaintiff will have to pay for the minor child whose A custody the parties have agreed
should be awarded to the Defendant. The Plaintiff is currently paying P900.00 per month as maintenance for the Defendant and minor child which was ordered on
27 September 1996 in Misca 434/96 brought before this Court pendente lite in which the Defendant was claiming P2 300.00 as maintenance per month. The
Defendant B has urged this Court to award her P2 300.00 per month as maintenance for herself and the minor child on divorce and she says this amount is to
cover expenses such as the maid's salary, food, rentals, electricity, water and clothing. The Plaintiff on the other hand has told the Court that he cannot afford P2
300.00 maintenance. He says his net salary (take home pay) is P4 800 per month and from this amount he pays P1200.00 per month for the mortgage bond,
P900.00 per C month maintenance, P352.00 per month insurance premium for the minor child, P250.00 per month as wages for the herd boys, P100.00 per
month to support his mother and P200.00 for his child born outside wedlock whose mother is deceased. If the marriage is dissolved he said he would only afford
to pay P400.00 per month as maintenance for the minor D child and lastly he said he has to maintain his car which he says he needs to maintain his status at
work and in the society."
The trial court having considered all these facts then concluded as follows: E
"I have no doubt that the Plaintiff has substantial financial commitments. On the other hand however, the Plaintiff has primary responsibility to support his son.
I should point out that as soon as house No. 25084 Gaborone West is sold which at the most should be within 12 months, the need for the Plaintiff to pay P1
200.00 per month for the mortgage bond will fall away as the First National Bank debt will have been settled. Having taken all the factors and evidence into
account I am F of the view that the Plaintiff should be ordered to pay maintenance of P600.00 per month for the first 12 monthss and thereafter to pay P1
200.00 per month as maintenance for the minor child."
Counsel for the plaintiff challenged this award principally on the basis that, if regard is had to the financial position G of the plaintiff, to his
extensive
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Counsel for the defendant pointed to the fact that the trial court had due regard to all the relevant circumstances before making an award.
been
1999 (1) BLR p416

STEYN JA
The court's order under this heading reads as follows: G
(II) With effect from 31 December 1998 the Plaintiff shall pay P1 200 per month as maintenance for the child until this child reaches 21 years or completes
schooling, whichever is later. The Plaintiff shall also pay for all the educational expenses of H the child and ensure that the child is covered at all times in
Plaintiff's medical aid."
The reasoning advanced by the trial court for making this order reads as follows:
1999 (1) BLR p417
STEYN JA
"The last question for determination is the amount of maintenance the Plaintiff will have to pay for the minor child whose A custody the parties have agreed
should be awarded to the Defendant. The Plaintiff is currently paying P900.00 per month as maintenance for the Defendant and minor child which was ordered on
27 September 1996 in Misca 434/96 brought before this Court pendente lite in which the Defendant was claiming P2 300.00 as maintenance per month. The
Defendant B has urged this Court to award her P2 300.00 per month as maintenance for herself and the minor child on divorce and she says this amount is to
cover expenses such as the maid's salary, food, rentals, electricity, water and clothing. The Plaintiff on the other hand has told the Court that he cannot afford P2
300.00 maintenance. He says his net salary (take home pay) is P4 800 per month and from this amount he pays P1200.00 per month for the mortgage bond,
P900.00 per C month maintenance, P352.00 per month insurance premium for the minor child, P250.00 per month as wages for the herd boys, P100.00 per
month to support his mother and P200.00 for his child born outside wedlock whose mother is deceased. If the marriage is dissolved he said he would only afford
to pay P400.00 per month as maintenance for the minor D child and lastly he said he has to maintain his car which he says he needs to maintain his status at
work and in the society."
The trial court having considered all these facts then concluded as follows: E
"I have no doubt that the Plaintiff has substantial financial commitments. On the other hand however, the Plaintiff has primary responsibility to support his son.
I should point out that as soon as house No. 25084 Gaborone West is sold which at the most should be within 12 months, the need for the Plaintiff to pay P1
200.00 per month for the mortgage bond will fall away as the First National Bank debt will have been settled. Having taken all the factors and evidence into
account I am F of the view that the Plaintiff should be ordered to pay maintenance of P600.00 per month for the first 12 monthss and thereafter to pay P1
200.00 per month as maintenance for the minor child."
Counsel for the plaintiff challenged this award principally on the basis that, if regard is had to the financial position G of the plaintiff, to his
extensive and proven commitments and to his status the award is excessive.
Counsel for the defendant pointed to the fact that the trial court had due regard to all the relevant circumstances before making an award.
That this is so, he submitted, was evident from the fact that it did not burden the plaintiff with the full amount of the child's entitlement until
such time as the plaintiff's monthly obligations decreased by H P1,200.00 per month. This would occur when the house in Gaborone West was
sold. He allowed P600.00 of this decrease in expenditure to accrue for the benefit of the plaintiff, but considered that maintenance for the minor
child at P1,200 per month was fair and reasonable, more especially as no order was made for the maintenance of the defendant.
1999 (1) BLR p418
STEYN JA
In order to determine whether the award is appropriate or excessive, one has to have regard not only to what the A father of the child can
afford, but also what the needs of the child are.
On this aspect of the matter there was very little evidence. As can be discerned from the judgment, the court had made an interim order of
maintenance for the respondent and the minor child in an amount of P900.00. Although the respondent said in her evidence that she was
claiming P2,300.00 as maintenance for herself and the minor B child, the court made no award by way of maintenance for her. It only decreed
maintenance for the child.
An analysis of such evidence as was tendered at the trial, convices us that an award of P1,200.00 for the maintenance of the minor child only,
is excessive. The child was, at the time of the High Court's judgment, only C 18 month's old. In the absence of any evidence which justifies this
very substantial award, it would appear as if the court has tried to compensate for the disparity in the incomes of the parties, by awarding
substantially more by way of maintenance for the minor child than his needs required.
However, when he reaches the age of seven years his needs will probably have increased significantly and an upward adjustment would probably
be justified D at that time.
In these circumstances it seems to us that a fair award would be to postpone the increase in maintenance awarded by the trial judge from the
12 months ordered by him to such date as the child reaches the age of seven years, i.e. July 2003.
It follows that the award of maintenance for the minor child decreed by the trial court in paragraph 2(b), of the E order must be set aside. In
its place it is ordered as follows:
B. (I) The plaintiff shall pay maintenance of P600.00 per month for the minor child from 31 December 1997 to 30 June 2003.
(II) With effect from 1 July 2003 the plaintiff shall pay P1,200.00 per month as maintenance for the child until this F child reaches 21 years or
completes schooling whichever occurs later. The plaintiff shall also pay for the educational expenses of the child and will ensure that the child is
coverd at all times in the plaintiff's medical aid.
(5) Costs G
Finally, it is necessary for us to determine what award of costs should be made. Although we have altered the order as to the maintenance for
the minor child, the plaintiff has failed in his challenge in respect of the main issue which required a reproduction of the lengthy record.
Moreover, the argument on the maintenance issue occupied no more than 10 minutes on appeal. Accordingly the plaintiff is ordered to pay the
respondent's costs H of appeal.
child at P1,200 per month was fair and reasonable, more especially as no order was made for the maintenance of the defendant.
1999 (1) BLR p418
STEYN JA
In order to determine whether the award is appropriate or excessive, one has to have regard not only to what the A father of the child can
afford, but also what the needs of the child are.
On this aspect of the matter there was very little evidence. As can be discerned from the judgment, the court had made an interim order of
maintenance for the respondent and the minor child in an amount of P900.00. Although the respondent said in her evidence that she was
claiming P2,300.00 as maintenance for herself and the minor B child, the court made no award by way of maintenance for her. It only decreed
maintenance for the child.
An analysis of such evidence as was tendered at the trial, convices us that an award of P1,200.00 for the maintenance of the minor child only,
is excessive. The child was, at the time of the High Court's judgment, only C 18 month's old. In the absence of any evidence which justifies this
very substantial award, it would appear as if the court has tried to compensate for the disparity in the incomes of the parties, by awarding
substantially more by way of maintenance for the minor child than his needs required.
However, when he reaches the age of seven years his needs will probably have increased significantly and an upward adjustment would probably
be justified D at that time.
In these circumstances it seems to us that a fair award would be to postpone the increase in maintenance awarded by the trial judge from the
12 months ordered by him to such date as the child reaches the age of seven years, i.e. July 2003.
It follows that the award of maintenance for the minor child decreed by the trial court in paragraph 2(b), of the E order must be set aside. In
its place it is ordered as follows:
B. (I) The plaintiff shall pay maintenance of P600.00 per month for the minor child from 31 December 1997 to 30 June 2003.
(II) With effect from 1 July 2003 the plaintiff shall pay P1,200.00 per month as maintenance for the child until this F child reaches 21 years or
completes schooling whichever occurs later. The plaintiff shall also pay for the educational expenses of the child and will ensure that the child is
coverd at all times in the plaintiff's medical aid.
(5) Costs G
Finally, it is necessary for us to determine what award of costs should be made. Although we have altered the order as to the maintenance for
the minor child, the plaintiff has failed in his challenge in respect of the main issue which required a reproduction of the lengthy record.
Moreover, the argument on the maintenance issue occupied no more than 10 minutes on appeal. Accordingly the plaintiff is ordered to pay the
respondent's costs H of appeal.
In so far as the third party is concerned she has been substantially successful inasmuch as she has had the award of damages against her
substantially reduced. No additional costs were incurred as a result of her challenging the court's decision on the merits of the dispute.
1999 (1) BLR p419

The respondent is therefore ordered to pay the third party's costs of appeal. A
In summary the court orders as follows:

1. Save as is decreed in respect of the order of maintenance for the minor child, the appellant's appeal is dismissed with costs.
2. Second appellant's (the third party's) appeal is upheld to the extent that the damages awarded against her are 2 reduced from P20,000.00 to
P7.000.00;
3. The respondent is ordered to pay the second appellant's costs of appeal.
LORD ALLANBRIDGE J.A. I agree. C
KORSAH J.A. I agree.

First appellant's appeal dismissed D
except for order of maintenance.
Second appellant's appeal upheld.
M.T.
1999 (1) BLR p419

E
substantially reduced. No additional costs were incurred as a result of her challenging the court's decision on the merits of the dispute.
1999 (1) BLR p419
The respondent is therefore ordered to pay the third party's costs of appeal. A
In summary the court orders as follows:

1. Save as is decreed in respect of the order of maintenance for the minor child, the appellant's appeal is dismissed with costs.
2. Second appellant's (the third party's) appeal is upheld to the extent that the damages awarded against her are 2 reduced from P20,000.00 to
P7.000.00;
3. The respondent is ordered to pay the second appellant's costs of appeal.
LORD ALLANBRIDGE J.A. I agree. C
KORSAH J.A. I agree.

First appellant's appeal dismissed D
except for order of maintenance.
Second appellant's appeal upheld.
M.T.
1999 (1) BLR p419

E
M.T.
1999 (1) BLR p419

E

MABOTE and Another v. MABOTE 1999 (1) BLR 386 (CA)

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MABOTE and Another v. MABOTE 1999 (1) BLR 386 (CA)

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MABOTE and Another v. MABOTE 1999 (1) BLR 386 (CA)

Citation 1999 (1) BLR 386 (CA)

Court Court of Appeal, Lobatse

Judge Steyn J, Lord Allanbridge J and Korsah JA

Judgment July 23, 1999

Counsel M. Marumo for the appellants.

1999 (1) BLR p387

1999 (1) BLR p388

1999 (1) BLR p387

1999 (1) BLR p388

(7) Strydom v. Saayman 1949 (2) S.A. 736 (T).

1999 (1) BLR p389

1999 (1) BLR p388

(7) Strydom v. Saayman 1949 (2) S.A. 736 (T).

1999 (1) BLR p389

1999 (1) BLR p390

1999 (1) BLR p389

1999 (1) BLR p390

(1)(a) The law

1999 (1) BLR p391

(1)(b) The evidence

1999 (1) BLR p390

(1)(a) The law

1999 (1) BLR p391

(1)(b) The evidence

1999 (1) BLR p392

1999 (1) BLR p393

1999 (1) BLR p391

(1)(b) The evidence

1999 (1) BLR p392

1999 (1) BLR p393

1999 (1) BLR p394

(1) (c) The decision

1999 (1) BLR p392

1999 (1) BLR p393

1999 (1) BLR p394

(1) (c) The decision

1999 (1) BLR p395

1999 (1) BLR p393

1999 (1) BLR p394

(1) (c) The decision

1999 (1) BLR p395

1999 (1) BLR p396

1999 (1) BLR p394

(1) (c) The decision

1999 (1) BLR p395

1999 (1) BLR p396

1999 (1) BLR p397

(2) (a) The law

1999 (1) BLR p395

1999 (1) BLR p396

1999 (1) BLR p397

(2) (a) The law

1999 (1) BLR p398

1999 (1) BLR p396

1999 (1) BLR p397

(2) (a) The law

1999 (1) BLR p398

1999 (1) BLR p399

1999 (1) BLR p397

(2) (a) The law

1999 (1) BLR p398

The court continues and says at pp. 852 J853: