HIGH COURT OF LESOTHO
MATSEBISO MAKAU Applicant
DANIEL MOHAPI MAKAU Respondent
Applicant: Mr. Sello
Respondent: Mr. Mosito
by the Honourable Mr. Justice T. Monapathi on the 17th day of
applies for committal of Respondent for contempt on alleged failure
to pay arrear monthly maintenance since August 2000.
question of principle that arose during argument was a simple one. It
was where an application for committal for contempt for failure of
payment of monthly maintenance resulted in "a conviction."
The sentence had been suspended on agreement by the parties to settle
the total amount outstanding. The question was whether the
application could be resuscitated merely by way of setting down of
the same about two years later even if the impression given was that
the punishment was suspended pending payment of earlier maintenance.
for Applicant submitted that whether a lump sum for the monthly
payments owing up to August 2000 was settled and paid, as soon as the
Respondent stood owing for subsequent months he stood to be committed
by a mere setting down of the application. Mr. Mosito for the
Respondent contended otherwise. His argument was in the main that a
fresh application had to be motivated where a new contempt is alleged
to have arisen or was committed by way of failure to pay further
maintenance. ] will come to this later. I however agreed with Mr.
Sello that no lump sum was claimed in the notice of motion except
that later after conviction a certain amount of arrear maintenance
was agreed upon by the parties.
notice of motion for committal for contempt of court was filed on the
17th of January 2000. This was against the background that the
Respondent had defaulted paying maintenance of M2500.00 per month to
Applicant's Attorneys as ordered by the court as ancillary to divorce
proceedings on the 2nd September 1999.
answering affidavit the Respondent annexed copies of receipts for
payment made either to court or his attorney. It may have been that a
total payments were not clear until the parties reached the agreement
about that lump sum on the . 9th August 2000 which may have been paid
later. The last calculation was then in the amount of Ml3,502.33 or
such was the amount allegedly paid over to the Applicant.
impression I got flowing from the attitude of the Respondent to the
supplementary affidavit of the 19th July, 2000 was that the
Respondent was not able to disprove that he had failed to pay over
and above the original areas of the month of November, 1999 including
April, May and June, 2000.
To me the
arithmetic which seems to have given both the Applicant and
Respondent a lot of headache is a simple one. It would be resolved by
months by monthly maintenance from September, 1999 up to June, 2000.
Subtracting therefrom the paid month of M13,502.33. If the amount
leaves a debit balance carry over the balance was to be carried over
to the additional monthly payments up to August, 2000. There is no
agreement that these sum constituted all arrears due at the time of
its payment. This had to be cleared if it was proved that it was all
done above a credit or debit balance will show. Having calculated
from June, 2000 any current balance will carry over until the day
when another order is made for committal. Because this was not done I
exercised my discretion the way I did in my order.
proposition is simple. Balanced against the sum of M13,502.33 and the
total amount of monthly payment to the date of application will be
the amount owing for which application for committal would be
appropriate. The difficulty is brought about because there is no
proof or allegation by the Applicant of what exactly the Respondent
is owing except that the court made its ruling on the 31st August,
2000 the Respondent owed monthly maintenance up to June, 2000. It can
only mean that the Respondent became owing for additional months to
date if he did not pay. But how much was it ?
present position is that it is not clear what the total amount of
monthly maintenance is except that the great probability is that some
maintenance must have been owing since the date of the court's order
of August, 2000. Mr. Mosito was not willing to venture as to what
amount his client was owing without proper evidence or averments
properly set out. Indeed I accepted that he ought to be allowed to
consult his client first. I agreed however with Mr. Sello that the
Respondent must be owing some amount of arrear maintenance but it was
not clear as to what the amount added up to.
recorded that as at the time of the order of contempt in August 2000
there had even been filed an application for variation of the amount
of maintenance by the present Respondent. The application was opposed
but was never argued. There is again in the file a notice of motion
filed by the Applicant this time for variation or deleting "of
the order made by this Honourable court on 21st July 1998 by
substituting there fore the following months for four children
namely: Ml,057.34, Ml,664.90 per month, Ml,660.90 per month and
Ml,057.00 per month." This application was served on the
Respondent on the 16th October, 2002. Presumably the application is
also been several postponements and set downs for hearing ending on
the last one of the 13th December, 2002 I was able to count about
three additional notices of that kind. Included in the scenario are
squabbles about the proper setting down of the application all which
added to the matter crying out for an attitude that seeks for
finality and reasonableness in approaching it. So far something
seemed to be lacking.
answer to the problem seems to be that the application for contempt
that was finalized in August, 2002 was closed because the Respondent
under took to purge by way of paying up and he did attempt to pay up.
He may have not paid up fully but this remains a matter of evidence.
Such evidence was lacking. It could only be cured by a supplementary
affidavit to which the other side had to respond. This court can not
therefore commit Respondent for contempt by imprisonment or otherwise
in the absence of fresh evidence.
it would have been better but not quiet ideal if a fresh Notice of
Motion had been filed to enable Respondent to respond thereto before
argument but not after when it was realized that the step taken by
the Applicant was problematic only by reason of the fact that it was
unclear as to how the agreement between the parties was complied
with. In any event there should be fresh evidence by way of
total circumstances of this matter and in my view fresh evidence has
to be placed before court to enable the Respondent to make up his
attitude after due consultation. As I said ideally it would have to
be a fresh Notice of Motion which would even be more proper and
elegant than a supplementary affidavit but we are faced with a
situation where there is a doubt as to what happened about the
calculations that stemmed from the last order of this court. In fact
the real worry is how much has in fact been paid. It suggests
therefore that the matter seems to belong to the past order. That is
why the convenience of a fresh Notice of Motion even if it were good
need not necessarily follow.
procedure ultimately conceded to by Mr Sello would be akin to
re-opening of unopposed motion and adducing of further evidence. For
the principles see L.F. Boshoff Investments vs Cape Town Municipality
1969(2) SA 257(C.P.D.).
answer to the question I posed is that the facts do not perfectly cry
out for an ideally fresh process or a Notice of Motion. There is a
doubt as to what transpired after the order of August 2000.
that most probably the Respondent is in arrears by more than one
month but this has to be properly proved.
finding that I make is that the argument by Mr. Sello fails with cost
to the Respondent with the order that m . the Applicant may file a
fresh supplementary affidavit as he also requested in the end. This
is my order.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law