The 2018 landmark judgement by Francistown High Court Justice Lot Moroka that practically legalised adultery could do little to save a Molepolole based convicted adulterer seeking relief from paying damages.
Lobatse High Court Justice Reuben Lekorwe recently dismissed with costs an appeal by Amos Khudu who had hoped to overturn an earlier decision by the Customary Court of Appeal.
The appellant, Khudu, had been convicted of an offence of adultery against the respondent Joseph Nkone, by the Molepolole Customary Court.
According to particulars of the case, the incident happened the night the respondent, Nkone, was mourning the loss of his mother and was preparing for her burial.
Following the evening prayer session, Nkone’s wife left their home to go and close their shop. When his wife took longer than expected, the Court heard, Nkone suspected that she could be in trouble and he got into his car and went to the shop where he could not find her.
“He drove to a certain of their employees who told him that his wife had long left the shop in the company of the appellant (Khudu). Somehow the respondent (Nkone) took the route that his wife and the appellant also used and as fate would have it, Nkone encountered Khudu and his wife. They were in Nkone’s motor vehicle, of a sedan make, which had pulled over by the roadside and with its headlights on.”
According to the case, Nkone’s wife was lying on her back on a reclined passenger front seat. “The respondent said at the time he saw them; his wife was pulling up her pants while the appellant ran.” According to the case, Khudu had initially pleaded guilty to a charge of adultery in front of a Goora Tshosa Ward Headman and agreed to pay Nkone damages amounting to P8 000 .
He was granted three months to pay the money. “It appears that in the intervening period the appellant reflected on his admission and reneged on the agreement to pay the respondent. That he no longer wished to pay the respondent. The appellant later explained himself that he had initially made the admission because he was afraid, though he did not disclose what really induced his fear,” the Court heard.
Khudu’s unwillingness to pay prompted him to take the matter further to the Customary Court in Molepolole where Kgosi N Bakwena ruled against Nkone citing lack of tangible evidence.
Nkone escalated the matter further to a higher Customary Court still in Molepolole.
Kgosi Keineetse Sebele set aside the decision of the lower Customary Court and substituted a verdict of “guilty of adultery”, with a consequent damages order, for the order of dismissal of the claim.
Khudu then continued to the Customary of Appeal where he unsuccessfully appealed Sebele’s judgement. Despite his earlier confession at the Ward level, Khudu subsequently denied having intercourse with Nkone’s wife claiming they were only friends.
Nkone’s wife however, according to Court records, categorically admitted they were in a love relationship but denied they had sex that day.
In his Judgement Justice Lekorwe concurred with Nkone’s attorney Thabiso Tafila of Thabiso Tafila Attorneys that circumstances or factors exist which ineluctably point to a finding that sexual intercourse occurred between the two.
“The admission by both the appellant and the respondent’s wife that they were in a love relationship. The parking of the motor vehicle beside the road in the dark. The respondent’s wife was lying on her back in the seat dressing herself up. The appellant running away from the scene instead of waiting and explaining the situation and circumstances to the respondent if at all nothing wrong had taken place.”
Justice Lekorwe said the circumstances of the case did not call for his immediate consideration of Francistown Justice Moroka’s judgement.
He said the matter had been decided by the lower courts long before the Moroka decision and as such he could not retrospectively nullify Nkone’s claim.
“Secondly, as Mr Tafila rightly pointed out, the Kgaje (Moroka Judgement) did not address the validity of such claims under customary law set up,” Jusitice Lekorwe said.
“The Appeal is dismissed with costs,” he ruled.
In his 2018 judgement Justice Moroka ruled, partly, that “the delict (offense) of adultery is no longer consistent with the boni mores (good morals) of contemporary Botswana. The actio iniuriarum (infringements of personality rights) based on adultery which affords the innocent spouse a claim for contumelia (disrespect) and loss of consortium (companionship) is no longer wrongful and thus no longer available as part of our law.”
The South African Constitutional Court this week also gave a ruling this past Friday legitimising adultery. The judges ruled unanimously that a wronged spouse could no longer sue for damages, saying that marriage was based on the concept of two willing parties and it did not seem appropriate in this day and age to have the law intervene in personal affairs. The court said one could not attach a monetary value to marital fidelity and the third party involved in the infidelity could not be sued for damages.