By Sandile Nkambule | 2018-08-11
Hardly a day after a final decree of divorce was issued by the High Court, Cynthia Dlamini the divorced wife to Public Service Pension Fund (PSPF) Chief Executive Officer (CEO) Cleopas Dlamini, has filed a notice of appeal.
She is appealing against the decision of the High Court with the Supreme Court.
The appellant (Cynthia) through her lawyer Sikhumbuzo Simelane from Simelane, Mntshali Attorney’s filed the appeal notice at the Supreme Court where he stated grounds of appeal.
According to the notice of appeal filed by her lawyer, the first ground of appeal is that the Court aquo (High Court) erred in law and misdirected itself in finding that constructive desertion serves as grounds for granting a final decree of divorce between the appellant (Cynthia) and the CEO.
It has been also stated by her legal representative that the court aquo ought to have found that the appellant restored conjugal rights to the respondent (Cleopas) but the respondent frustrated the restoration of the conjugal rights and as such, ought not to benefit from his own wrong.
Another ground of appeal is that while the Court aquo correctly found that matters of faith and spirituality are personal decisions and that the Constitution Act of 2005 also holds aloft the person’s right to religious freedom, they feel that the court aquo erred and misdirected itself in holding that there is a glaring absence of any expression of change of heart or mind on the appellant’s part nor is there any renunciation of the religious practices complained of by the respondent (Cleopas).
Further it has been submitted in the notice of appeal that the Court aquo ought to have found that the marriage between the two parties is a marriage in community of property and of profit and loss and as such the law governing proprietary consequences ought to be the common law.
Another ground of appeal is that the Court aquo misdirected itself in holding that in order for appellant to discharge onus of proof that she restored conjugal rights it was not enough for appellant to physically present her person as an indication of her willingness to resume cohabitation but also had to show she had a change of heart.
Simelane for the applicant argued that the Court aquo ought to have found that by physically presenting herself to have been an indication of her willingness to resume cohabitation hence the appellant discharged the onus of proof that she restored conjugal rights.
Dlamini who accused his wife of practising her religious beliefs obsessively and intolerably ended their 37-year marriage after being granted a final decree of divorce on Thursday morning.
This was after Judge Cyril Maphanga issued a final decree following an application that was filed by Dlamini on an urgent basis after instituting divorce proceedings against Cynthia on grounds of constructive desertion.
Justice Maphanga when making a ruling on return of conjugal rights stated that in considering the facts of the case and material before him, he has come to the conclusion that the defendant (wife) has failed to discharge onus on her demonstrating that she has complied with the restitution order in the sense of having restored conjugal rights and making a bona fide and genuine offer to the plaintiff (Dlamini).
“I have found no reference whatsoever or any indication of any evidence that the behaviour or conduct of the defendant has changed, there is a glaring absence of any expression of a change of heart or mind on her part nor is there any renunciation of the religious practices complained of or at least denounce or temper with these practices and beliefs, for these reasons I am prepared to grant the plaintiff the final decree of divorce as I hereby do,” Judge Maphanga ruled.
Judge Maphanga stated that it is pity that the suit for divorce having commenced in 2006 has taken its emotional and financial toll on both parties hence he ordered that each party pays its own costs.
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