Introduction
The Court of Appeal of Lesotho, in the unreported judgment of ‘Maisaka Tsimane v ‘Malipalesa Mei (C of A (CIV) 28/2024), has brought critical focus to the future of adultery-based delictual claims under the country’s common law. The case involved an appeal against a High Court ruling that dismissed a special plea raised by the appellant, who sought to challenge the legal foundation of the adultery delict on the basis that it no longer aligns with contemporary social values or constitutional rights.
The appellate court set aside the High Court’s decision and remitted the matter for reconsideration with directives that signal a possible paradigm shift in how South African-influenced common law delicts are interpreted and developed in Lesotho.
Background
The respondent, ‘Malipalesa Mei, sued the appellant, ‘Maisaka Tsimane, for damages arising from an alleged adulterous relationship with her husband. She claimed M300,000 for contumelia (injury to dignity) and M200,000 for loss of consortium, citing emotional distress and social humiliation.
The appellant raised a special plea that the common law delict recognising claims for adultery should be abolished as it is out of step with modern values and constitutional rights. The High Court rejected the plea without requiring the presentation of any supporting evidence. It also reframed the issue as a constitutional challenge rather than a common law development question.
The Legal Issue on Appeal
The appeal centred on whether the High Court erred in dismissing the special plea without first receiving evidence on the societal relevance of the adultery delict. The appellant maintained that the delict was outdated and constitutionally problematic, while the High Court had, in the appellant’s view, conflated the matter with a constitutional inquiry it had not been asked to adjudicate.
The Court of Appeal agreed that the High Court had erred procedurally. It held that when a party asks for the development of the common law, as the appellant did, the court must be guided by evidence on societal norms, public morality, and evolving values regarding marriage and autonomy.
The Role of Evidence and Stakeholders
Critically, the appellate court highlighted that a special plea that challenges a common law rule requires empirical substantiation. Development of the common law is not merely a legal exercise but a social one, and without evidence, courts risk making detached, potentially regressive rulings.
To this end, the Court of Appeal recommended the participation of the Law Society of Lesotho and the Attorney General as amici curiae to assist the High Court on reconsideration. Their involvement would serve to ensure that any development of the law is informed, balanced, and constitutionally coherent.
Constitutional and Doctrinal Considerations
The Court of Appeal refrained from making a final determination on whether the delict of adultery is still viable under Lesotho’s legal framework. However, its reasoning reflects a strong inclination towards legal evolution grounded in dignity, equality, and privacy, rights enshrined in the Constitution of Lesotho. The Court also referenced the need for the law to reflect the lived realities of a changing society and not perpetuate archaic moral standards inconsistent with democratic values.
This aligns with broader regional and international jurisprudence, including South African precedents that have questioned or abolished similar delicts.
Court Order
The appellate court:
- Set aside the High Court’s dismissal of the special plea.
- Ordered the matter be remitted to the High Court for reconsideration.
- Directed the inclusion of evidence on the societal and moral context of adultery.
- Invited the Law Society and Attorney General to participate as amici curiae.
- Held that costs would be in the cause.
Conclusion
The Tsimane decision represents a pivotal moment for Lesotho’s common law. It signals judicial openness to questioning and potentially discarding legal doctrines that no longer serve contemporary values or constitutional mandates. While the future of the adultery delict remains unresolved, this case establishes a framework for reform that prioritises evidence, inclusivity, and legal accountability.
As Lesotho grapples with the coexistence of civil and customary systems, this judgment reaffirms the role of courts not only as interpreters of the law but as active participants in its modernisation.