- November 3, 2022
- |Concise Law Reports (CLR), Law Of Persons
LAW OF PERSONS – DIVORCE – CONCEPT OF RESTITUTION OF CONJUGAL RIGHTS DISCUSSED IN LIGHT OF AN EXISTING FINAL PROTECTION ORDER
In his introduction, Masuku J eloquently stated that:
‘[1] … Unfortunately, as some marriage relationships are wont to, this marital relationship, traversed tempestuous waters. As the waves of marital tempests and tribulations battered the parties’ marital ship, it unfortunately succumbed and became shipwrecked.’
In respect of the concept of Restitution of Conjugal Rights, that:
‘8] …. In K v K (I 2987/2015) [2018] NAHCMD 126 (14 May 2018) para 17 the court, in reference to the learned authors Hahlo, ‘The South African Law of Husband and Wife quoted the following excerpt:
‘Restitution of conjugal rights means the restoration of cohabitation as man and wife. The factum of the return must be accompanied by the intention to restore the marital relationship. There is consequently no restoration of conjugal rights if the defendant returns to the plaintiff under circumstances which show that he has no intention to resume marital cohabitation.’
[9] It accordingly becomes plain that the order of restitution of conjugal rights is issued by the court in circumstances where there is a genuine and serious intention and willingness by the parties to resume the marital relationship. They must be willing to bury the hatchet and turn a new page in their otherwise stained marital relationship.
[10] It is an order that is normally granted by the court in good faith with the express intention to afford the parties an opportunity to resuscitate the marital relationship, which may have, for whatever reason, ceased to exist. This is not an order that must be issued casually and in order to merely go through the motions, in the absence of a genuine intention to resume the marital relationship.
[11] I am of the considered view that in cases where allegations of violence which are pleaded in the papers or where, as in this case, there is a protection order issued, it is most inadvisable for the court to order restoration of conjugal rights in that scenario. That is so because where the parties resort to violence one against the other, in the course of complying with a restitution order, the marital home to which restoration is ordered, may be the very cradle of violence, if not the killing fields.
[12] I have stated above that even allegations of violence should deter the court from ordering restitution because proof of violence may be too ghastly to behold once the violence that was alleged eventuates. Life and limb may be in serious jeopardy, which is an eventuality that must be avoided at all costs.
[13] It has now become plain that in some cases, marriages have become loveless and the breeding ground for homicide, violence, verbal, economic and financial abuse. As such, where a likelihood exists that a party to a marriage may seize the opportunity provided by a restitution order, to engage in the assault and denigration of the bodily integrity and dignity of the other spouse, then the restitution order should not be granted.
[14] Its purpose is to afford the parties a time, place, and opportunity to restore the marital relationship and not to destroy one another’s life, person, or dignity. A possibility that a person may be killed or maimed in the precincts of a marital home, in the name of restoration of conjugal rights, points inexorably to the inadvisability of granting that order.
[15] This reality and the possibly catastrophic results dawned on Cheda J in Shitaleni v Shitaleni (I 61/2015) [2015] NAHCLD 30 (08 July 2015) para 11-12. In dealing with the possibly calamitous consequences of issuing a restitution order, the learned judge remarked as follows:
‘It is my considered view that this is one of those exceptional cases where plaintiff’s desire for a Restitution of Conjugal Rights is sought as a matter of course and lacks bona fides. In her own words under oath, she testified that she is afraid of defendant. I, therefore, do not see the logic of her accepting defendant back where there is a great possibility of violence or even death being carried out on her.
In my view to allow the defendant to go back to plaintiff is to tacitly grant him a licence to continue with his violent threats as he pleases. Infact, it is tantamount to asking (Dracula) the vampire to guard a blood bank. It is for that reason that I used my judicial discretion of granting the final order thereby putting the plaintiff’s mind at rest.’
[19] In point of fact, properly construed, the compliance with the restitution order, if issued by this court, would amount to a commission of a criminal offence, if regard is had to the terms of the protection order. There must be confluence in the actions and orders courts issue to parties appearing before them. An order that is appropriate and is in sync with the protection order and which also protects the life, dignity, and bodily integrity of the plaintiff, is the issuance of a final decree of divorce in the instant matter.’
Homba v Homba NAHCMD 3 November 2022 – Concept of RCR discussed