End of honeymoon for adulterers

Kabelo Dipholo
OVERRULED: Justice Moroka

*Judge Moesi reverses Moroka’s 2018 marriage wrecking ruling

In yet another judicial whirlwind, Francistown High Court Judge Bashi Moesi has overturned, the 2018 ruling made by his colleague, Judge Lot Moroka on marriage wrecking.

Delivered in an open court on Monday November,25th, Justice Moesi ruled in favour of James Machangana who was blaming Nicholas Botsho for the breakdown of his three- year old marriage.

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In his suit the Botswana Defence Force employee sort general damages at P150 000, which were wholly granted by court, including interest at 10% per annum from the date of judgement.

The marriage wrecker was further ordered to pay the costs of the suit.

Botsho had admitted that he was involved in a romantic relationship with Machangana’s wife and together they had conceived a child who was born on April, 19th, in 2015.

The Machangans were married in Tutume on November, 30th, 2012.

In his defence Botsho said the romance with the Machangana’s wife continued because he was under the impression that her marriage was over as she had eventually moved in with him, together with her children.

Machangana who has three children with his wife told the court that before the conception of the fourth child by his wife and Botsho, there was happiness in the marriage, but the relationship deteriorated as he began to experience rejection from his wife who refused to have conjugal relations with him.

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He said his wife then embarked on unexplained absences from the matrimonial home eventually moving completely out to live with her parents until the child was born.

Shining the spotlight on the landmark ruling by Judge Lot Moroka on a similar case in 2018 (Precious Kgaje vs Oreneile Phindile Mhotsha) which abolished claims for damages based on adultery, Moesi said while the doctrine of judicial precedence is the basic principle, it is also subject to exception where the earlier decision is held to be clearly wrong.

“A decision will be held to have been clearly wrong where it has been arrived at on some fundamental departure from principle, or a manifest oversight or misunderstanding, that is, there has been something in the nature of a palpable mistake,” noted Moesi.

In his 2018 ruling, Moroka was of the view that based on the changing morals of society the claim for damages based on adultery pertaining to a civil marriage lacks constitutional and common law validity.

Moroka ruled that infidelity is a result of a married person rendering him or herself romantically available to third parties.

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“It is a conscious voluntary act that has nothing to do with the culpability of the third party,” said Moroka at the time. Moroka concluded that the remedy of damages against the third party is ineffectual for it leaves a critical co-perpetrator off the hook.

The judge further stated that there are cases in Botswana where the guilty spouse would help the third party to pay for damages.

However in differing with Moroka’s judgement, Moesi said after careful consideration he finds himself unable to agree that the constitutional investigation undertaken by his colleagues was warranted.

“Indeed I think it was something in the nature of a palpable mistake,” Moesi said.

“In conclusion I must say I have the misfortune to differ with my learned brother and propose to declare that the decision in Kgaje’s case is wrong.” Moesi said before ruling in favour of Machangana.

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