Abolishing the delictual claim for contumelia and loss of consortium in Lesotho: the saga continues….

In Tsimane v Mei C of A (CIV) No. 28/2024, a recent decision delivered by the Court of Appeal on 01 November 2024, Lesotho’s highest court had the opportunity to say whether this delictual claim should be abolished, as has been done in other neighbouring countries. To understand what this case was all about, it is important to note the following:

(1)????? What is contumelia and loss of consortium?

Where a spouse enters into an illicit association with another person who is fully aware of his or her marital status, that spouse’s husband or wife, as the case may be, is entitled to damages for injuria so committed, namely the contumelia inflicted (i.e. humiliation in the eyes of society), and for loss of consortium for the damage which the plaintiff has sustained by reason of the loss of love and companionship of the husband or wife. To illustrate this, say H (the husband) and W (the wife) are married. Then, being fully aware of the fact that W is a married woman, C (‘Casanova’) starts an adulterous relationship with W. Under our current law, H can sue C for contumelia and loss of consortium.

(2)????? Tsimane v Mei: the litigation history

Back in 2018, the plaintiff (a woman) instituted an action against the defendant in the High Court under case number CIV/T/154/2018. She alleged that the defendant (a woman) was in an adulterous relationship with her (plaintiff’s) husband. As a result, plaintiff wanted the court to award her (a) M300, 000.00 (Three Hundred Thousand Maloti) for contumelia and (b) the sum of M200, 000.00 (Two Hundred Thousand Maloti) for loss of consortium.

Instead of pleading to the facts of the case, the defendant had the ingenious idea of raising a special plea: that the High Court of Lesotho should develop the common law by abolishing this type of claim, as has been done in other neighbouring countries. The parties then filed their written submissions (heads of argument), and the High Court heard arguments on the special plea. The High Court dismissed the special plea, holding that the action for contumelia and loss of consortium should not be abolished in Lesotho. Dissatisfied with this outcome, the plaintiff noted an appeal to the Court of Appeal.

On appeal, the Court of Appeal did not say whether the claim for contumelia and loss of consortium should be abolished in Lesotho. Rather, the Court of Appeal held that, before deciding whether to uphold or to dismiss the special plea which the plaintiff had raised, the High Court ought to have heard evidence “that reflects society’s current moral compass” because, in deciding whether to develop the common law, the High Court “must be informed by understanding how societal attitudes have shifted, particularly regarding marriage, fidelity, and individual autonomy”. For this reason, the Court of Appeal has set aside the judgment of the High Court and remitted the case back to the High Court for hearing of oral evidence on the special plea.

(3)????? The current position of the law?

As of now, the position of the law in Lesotho is the delictual claim for claim contumelia and loss of consortium has not (yet) been abolished.

(4)????? Should it be abolished?

The arguments for and against abolishing this claim can be summarised as follows: those who argue that the claim should be abolished hold the view that the action is outdated and archaic and that it has lost its place in the context of modern society. On the other hand, proponents of the continued existence of the action believe that in the main it serves two purposes: First, to protect marriage as an important institution of society and, second, to protect the personality rights of injured spouses by affording them compensation for the contumelia or injury they had suffered and (perhaps) for the wounded feelings they were made to endure.

Personally, do I think that the claim should be abolished in Lesotho? Yes, I do. In my view, the arguments for abolishing the claim are convincing. It is going to be virtually impossible for anyone to make a convincing argument that the claim should be retained in Lesotho given the fact that this claim has already been abolished by the courts in South Africa, Botswana, Namibia and Swaziland. Whilst not binding, decisions from these jurisdictions are very persuasive. See RH v DE 2014 (6) 436 (SCA); Kgaje v Mhotsa CVHFT-000237-17 (unreported); Sibongo v Chaka Case No: 77/2014 (unreported); and Resting v Resting Civil Case No: 1704/2015, respectively. In all of these decisions, the courts held that the claim for contumelia and loss of consortium is outdated and no longer sustainable in a modern society.

Upon reading this article, some people might say, when discussing Tsimane v Mei, why are you mentioning the surnames of the parties: why do you not refer to this case as T v M? Well, the answer is that, in Lesotho (except in very limited circumstances), judgements of the courts are considered public documents in the sense that they can be accessed by anyone. When they are published or posted online, the names and surnames of the parties are disclosed. The point that I want to make here is that one of the arguments for abolishing the claim for contumelia and loss of consortium is that this action is invasive of and (unjustifiably) violates the right to privacy. As the Supreme Court of Appeal noted in RH v DE “the trial exposed the young children of the marriage to harmful publicity and emotional trauma” and “evidence normally led in adultery actions seriously impacts on the dignity and privacy of the defendant, and the spouse that is alleged to have committed adultery”.

As to whether the claim for contumelia and loss of consortium will actually be abolished in Lesotho, I guess we’ll just have to wait and see what happens next in the legal saga.