Times Of Swaziland: COURT ORDERS WIFE TO  RESTORE CONJUGAL RIGHTS

COURT ORDERS WIFE TO  RESTORE CONJUGAL RIGHTS
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BY MBONGISENI NDZIMANDZE  on 13/06/2018 05:23:00


MBABANE - Public Service Pension Fund (PSPF) Chief Executive Officer (CEO)
Cleopas Sipho Dlamini has won the first round against his estranged wife.
High Court Judge Cyril Maphanga yesterday ordered the wife, Cynthia, to restore
conjugal rights by June 23, 2018 or give reasons why a decree of divorce should
not be granted to Dlamini.
This means that Cynthia has 11 days to restore conjugal rights or have their
marriage terminated.
Dlamini had instituted divorce proceedings against his wife because, among other
things, she allegedly practised religious beliefs obsessively and intolerably.
Another major source of disquiet was that Cynthia allegedly became extremely
preoccupied and would neglect her duties due to her heavy engagement in church
activities, which often entailed frequent church services even during the course
of the week and weekends, being away from home to attend prayer meetings for
days.
It emerged from Dlamini’s evidence that what really led to the marital
difficulties was the radical transformation in the attitude and personality of
the defendant (Cynthia) which he described as obsessive and overzealous.
He described some of the changes in his wife as including manifestation and
expression of beliefs in the prevalence of evil spirits. So deep seated these
beliefs and practices such that, it was alleged, Cynthia appeared to have
hallucinations about the alleged evil spirit and would allegedly wake up in the
middle of the night to blow a horn.
She allegedly did this for the purpose of warding off and exorcising these
spirits much to Dlamini’s consternation and with little, if any, regard to the
family.
The CEO’s further lamentations stem from the defendant’s annual pilgrimages
to Israel as part of the church organised events in complete disregard to
Dlamini’s disapproval of these trips.
Dlamini stated that he became concerned at the effects these travels were having
on Cynthia when he noticed that whenever she had been abroad, she allegedly came
back a completely changed and more obsessed person.
It has been 11 years since Dlamini and his wife had lived apart, but during the
hearing of the matter, Cynthia told the court that she was still waiting for him
to return. She said she was aware that Dlamini allegedly lives with a certain
woman.
The director of Kusile Enterprise said it did not matter that Dlamini was with
another woman and that he had an extra-marital child with the woman. Cynthia
said her husband made a vow that he would be at their matrimonial home.
Judgment
In his judgment, Judge Maphanga highlighted that it was common cause that since
around 2002, the parties had serious marital differences. He noted that as their
problems worsened, their crisis deepened, as such they became increasingly
estranged.  Consequently, during 2006, the plaintiff (Dlamini) left the marital
home which was situated at Malagwane Hill in the outskirts of Mbabane.  The
defendant remained at the marital home and had at all material times continued
to live there.
Dlamini’s case was premised on constructive desertion on the part of the
defendant and to this end he asserted that he was impelled to leave the
matrimonial home on account of the defendant’s alleged incessant intolerable
behaviour and her withdrawal of consortium in the relationship.
The defendant, however, disputed the alleged wrongful conduct and in rebuttal to
the allegations against her countered with her own allegations that it was the
plaintiff who maliciously deserted her upon leaving the marital home.
Judge Maphanga said Cynthia presented herself as a person who had reconciled
herself with this situation in the sense that it would not be overstating the
point to say that she had condoned Dlamini’s transgressions.
“Indeed she stated and maintained that she wants the plaintiff back and
sanguine of prospects of resumption of her marriage with the plaintiff, “noted
the court.
The court said the first issue that was to be determined was whether the alleged
wrongful conduct attributed to the defendant had been proven on a balance of
probabilities to entitle the plaintiff to the restitution order, failing which a
decree of divorce as prayed.
“A second and ancillary issue is whether this court may, in the light of the
circumstances, excuse or condone the plaintiff’s own wrongful conduct  and 
the acknowledged instances of adultery he had disclosed to the court,” said
Judge
Maphanga
The defendant also contended that she was not only married to Dlamini by civil
rites but also that her marital regime was to be governed by the common law
whose proprietary consequences were by Swazi Law and Custom. “There seems to
be no dispute that the parties married in terms of the Marriages Act and that
their marriage certificate; a copy of which was tendered during the trial and
admitted into the record without quibble from the defendant, indicates that much
and also an endorsement to the effect that the marriage was contracted
‘without an ante-nuptial contract’ to vary the common or statutory
consequences thereof.
That is much clear,” said the judge. Judge Maphanga pointed out that in his
view, the reasoning of the defendant’s position was derived from the
perception that a marriage which was simply endorsed with the words
‘without’ signifying the exclusion of non- existence of an ante- nuptial
contract meant that the proprietary regime of the parties should be ‘in
community of property’.
“If that is the case in the instant  matter, and all indications appear to be
that the defendant is labouring under that viewpoint, that is patently erroneous
position that is not in keeping with an ordinary consideration of the applicable
statutory provisions,” said the judge.