Bashi Letsididi
4 April 2008
Gaborone — A written statement confessing to adultery is inadmissible as evidence in customary law. That is the most explosive part of a ruling made by Kgosikwena Sebele, president of the Customary Court of Appeal in an adultery case.
He made the decision in the case of Baradi Segole who is accused by Bakang Mosala of having an affair with his wife, Malebogo. At some point the two men worked together and formed a bond so strong that Bakang introduced Segole to his family. Segole told the court that Bakang stuck with him through thick and thin and even when he lost his younger brother.
In 2004, Bakang left for the United States to further his studies and soon thereafter Segole is said to have started an adulterous relationship with Malebogo that only ended in 2006 when the husband returned. Bakang told the court of an incident in December 2006 when his wife claimed that she was going to Molepolole when she was actually rendezvousing with Segole. Malebogo allegedly hid her car at a cousin's place not very far from Segole's house. Bakang would later get his hands on a call list that showed how often his wife communicated with Segole.
When Bakang confronted his wife with the intelligence he had gathered, she confessed but her own account was that the affair only began in 2006 after she had spurned Segole's amorous advances for two years. His persistence only paid off when Bakang was back home. Malebogo said that she started the affair because she discovered that her husband was cheating on her. As part of making up, the couple forgave each other and agreed to mend their ways and repair damage done to their marriage. Malebogo was required to put down her confession in black and white. A copy of the confession was presented as evidence in court.
In his defence, Segole denied the charge and alleged that Bakang had vowed to 'fix' him. Segole told the court that he treats Malebogo as a sister after he learned that they not only came from Molepolole but from the same ward as well. He said when Malebogo learnt about their shared origins, she became curious. She wanted them to research whether there was any familial link between them.
The case was first heard at the Urban Customary Court in Gaborone. A call list showing communication between the supposed love-birds was presented and accepted as evidence. Segole was fined P10,000 and ordered to pay within three months. Instead, he decided to appeal the case and that is how Sebele came into the picture.
Overturning the lower court's ruling, Sebele said a call list cannot be used as evidence. He said Bakang had not followed the Setswana way of establishing adultery.
In very extensive detail, the former member of the House of Chiefs laid out an elaborate process undertaken by Batswana over centuries to prove cases of adultery. The judgment refers to the culprit as a 'thief.' When a man finds his wife in flagrante delicto, he is not supposed to fight the 'thief' or make any kind of scene. The victim (the husband) does that in order to protect his family and his wife's dignity and honour. "The thief is also not supposed to make a scene," Sebele's judgment says.
What is of paramount importance at this stage is for the married couple to reconcile and for the 'thief' to be punished for stealing. Sebele says that both tasks are supposed to be undertaken with the utmost secrecy. "The husband says to the thief: 'Get out of the bed. You have been found out.' The husband confiscates the thief's clothes and in return lends the thief his own item of clothing of his - say a coat - to wear before letting him go."
In the event that the thief is unknown to the husband, he would be questioned very closely to reveal vital personal information. At the crack of dawn, the husband goes to his father or paternal uncle's place to report the 'theft' at his house. The father or uncle would in turn inform other relevant family members like maternal uncles. When satisfied that the husband followed proper procedure to establish adultery by both culprits and has located the thief's place of abode, the thief's family would be alerted that a delegation from the husband would be paying a visit shortly. "And indeed that delegation would be dispatched, taking with it the clothes confiscated by the husband. The clothes would be presented to the thief's family as evidence of adultery. When he is called over, the thief would also bring the item of clothing the husband had lent him. That is standard evidentiary requirement for an adultery case," the judgment said.
Sebele stated that in its nature, sexual activity is so secretive that no third party can realistically claim credible knowledge of its occurrence. "A man and woman lock themselves up in a room, turn the lights off and cover themselves up [with bedding]," the former Bakwena regent said. "No third party can claim to have witnessed adultery. If they do, then they just want to wreck other people's homes.
They would be lying through their teeth if they make that claim. That is why in this particular case, I have disregarded the so-called evidence." In addition to what Bakang claimed, part of the 'so-called evidence' includes a call list, which Sebele ruled was not admissible.
"The complainant did not meet the evidentiary standard I have outlined. What he is doing is merely disgracing himself and his family," Sebele said. The importance of this case is that from now on, verdicts of similar cases would have to be tailored around its central reasoning. Sebele asserts that the lower court (Urban) misdirected itself in its verdict and appealed to such courts to strictly adhere to evidentiary standards of customary law. If they failed to do that, he added, then they would be culpable in the break-up of marriages. Kgosi Sebele,Kgosi Mosielele and Phineas Makepe presided.
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