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CIV\T\559\97
IN THE HIGH COURT OF LESOTHO
In the matter of:
MAPOLOKO MOTOROLA Plaintiff
VS
HABOFANOE MOTOSOLA Defendant
JUDGMENT
Delivered by the Hon. Mr Justice ML. Lehohla on the 8th day of February, 1999
The parties are husband and wife. The action is for divorce instituted by the plaintiff wife against the defendant on grounds of the latter's alleged adultery.
The plaintiff asks also for custody of the two minor children of the marriage and originally their maintenance at the rate of Ml000-00 per month per child. Subsequently the plaintiff asks for maintenance of these children at the rate of
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M500-00 per month per child.
She also asks for costs of suit.
Proof of marriage is furnished by the plaintiff who handed in a copy of the marriage Certificate showing that the parties entered into a civil marriage in Community of Property at District Secretary's Office, Maseru, on 22nd August 1990. This marriage certificate was marked Exhibit "A" on 7th December, 1998.
The plaintiff in her brief evidence indicated that she doesn't stay with her husband. She indicated that the defendant stays in a purported marriage as husband and wife with one 'Mamahlomola Mosola. The plaintiff swears that she doesn't approve of this arrangement. She further stated that there is one other woman called Mahlabana Hlabana with whom the defendant is living in adultery and has been doing so since 1997.
The Court's attention was drawn to the fact that there is already a maintenance order for M500-00 per month per child pending dissolution
of the marriage.
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The plaintiff told the Court that the defendant is a businessman and does farming as well; and that he lets out property to tenants for rent.
In his evidence the defendant in turn said on oath that the two children of the marriage are in the Plaintiff's custody. He swears that he would be hard put to it to raise maintenance of Ml 000-00 per month per child saying nothing of sustaining such rate of maintenance as he says he has been dismissed from his home and been forced to live as a beggar in the result. He strenuously pleaded that he owns no property as he was expelled from his home by his chief for the area. He said his attempt to seek the assistance of the police against the expulsion by the chief was to no avail.
He however appreciates that he has to maintain his children but is daunted by the unaffordable amount that this entails regard being had to the fact that he says he owns nothing.
He says the rent he gets is only M500-00 and leaves it to the Court to imagine how much he would be left with if part of that amount is deducted for maintenance.
Under cross-examination it was revealed that despite the maintenance order
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the defendant made only one payment in November 1997; thus putting my brother Monapathi J under the necessity to send the defendant to prison even after being excessively patient with him.
It also emerged under cross-examination that even though the Court had ordered the defendant not to dispose of communal property pending dissolution of the marriage he nonetheless went ahead and disposed of it.
He said that he left the tractor at home when expelled by the chief and the police. He said he didn't know these police.
The defendant was clearly placed in a cleft stick when it was made clear to him that before he went to jail his wife had already left, thus it was incomprehensible that he could have been evicted from the property where his wife was not even living if the expulsion were to be reckoned to have been at the wife's
instance.
The defendant said he has tried to find out what happened to the tractor and asserted that he is not misleading the Court when he says he lives as a beggar. He was told that evidence would be called in rebuttal of his claims.
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Under re-examination it was elicited from him that the 12 rooms at M50-00 each for 5 rooms would earn him M550-00 per month as against the M500-00 he said they would.
He further said the chief is the one who is in control of his immovable estate. He said he didn't know who is in charge of his tractor save that he saw someone drive it. He however did not approach this driver regarding his use of the defendant's tractor.
He never sued anybody for their making free with his property. That I find very strange indeed.
PW2 John Faku Lebajoa swore that he lives at Berea at the village of Chief Tumo Masupha. He knows the defendant well for he is the defendant's maternal uncle. He knows the defendant's wife well also.
PW2 denies that the defendant found his tractor missing when he was released from jail. This was around 13-6-98.
PW2 says the defendant sent to PW2's place his younger brother and his
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younger brother's wife. These were Samson Lebajoa and Matšepe Lebajoa.
These two emissaries summoned PW2 to the defendant. In response to this call and on arrival at defendant's residence at Ha Masupha the defendant told PW2 that he is selling the property which the defendant pointed out. The property consisted of two nidges, a van and a tractor. The refrigerators consisted of a deep freezer and an upright fridge. Both were electrically operated. PW2 expressed interest in the tractor which he bought for M10 000-00. So much then for the tractor concerning whose fate the defendant said he didn't know anything!
Anyway PW2 says the defendant removed from his place and site with his property including stock in the cafee, loaded these on a truck and left. PW2 says the defendant is trading as a businessman at Maqhaka presently.
Under cross-examination it was brought to PW2's attention that the business that he says the defendant is running belongs not to the defendant but the woman he is living with. PW2 was adamant that the business in reality belongs to the defendant whose employees are even known to PW2. He is so certain of this because he is the defendant's uncle.
It emerged under re-examination that the woman living with the defendant is
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in fact Mahlabana Hlabana who has her own husband. PW2 said the rented structures owned by the defendant are in Maseru near Motimposo dam.
PW3 Mampinane Masupha was not cross-examined. Her story is that she is the Chieftainess of Ha Tumo. The parties are her subjects.
PW3 recalls when defendant came from prison. PW3 dubs as false any claim by the defendant that on coming back from jail he found his place devoid of property. She says that while the defendant was in jail it was Mahlabana Hlabana who was staying there till the defendant came out of jail.
PW3 says it is not correct that she chased the defendant from her village nor that she employed services of the police to do so.
I am satisfied that the defendant is the kind of man who will mislead the Court if he thinks no one would come forward to contradict him. His evidence indeed especially under cross-examination was characterised by shiftiness, evasiveness and plainright lying. It seems that he delights in making a virtue of his pranks at the cost of the Court's time and patience. I don't take kindly to the fact that despite an interdict to the contrary he disposed of the relevant property.
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His defences are rejected as being worthless and without merit. The Court makes a finding that he has assets such as furniture and tractor at Maqhaka at the very least.
Mr Sello told the Court that custody of the children was awarded to the plaintiff after the dissolution.
My notes and my recollection reflect no such act. Perhaps he was moved by instinctive anticipation. His optimism is however not misplaced.
In the result
A decree of divorce is granted on grounds of the defendant's adultery.
Custody of the minor children is awarded to the plaintiff.
The defendant is ordered to pay maintenance of the two minor children at the rate of M5 00-00 per month per child starting at the end of February 1999.
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The defendant is ordered to pay costs of suit.
JUDGE
8th February, 1999
For Plaintiff: Mr Sello
For Defendant: Mrs Majeng- Mpopo
