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COURT ORDERS WIFE TO RESTORE CONJUGAL RIGHTS

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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.

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