IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) 38/2010
In the matter between:
PHUTHEHO MAHASE APPELLANT
’MAMAHOOANA MAHASE RESPONDENT
CORAM: SCOTT, J A
HOWIE, J A
FARLAM, J A
HEARD : 14 OCTOBER 2011
DELIVERED : 21 OCTOBER 2011
DIVORCE - FORFEITURE OF BENEFITS - WHETHER ORDERED BY COURT A QUO
 The appellant and the respondent, who were married in community of property, were divorced in the High Court on 26 November 2008. The court which granted the divorce ordered that two ancillary matters, namely the forfeiture of the benefits arising out of the marriage and the custody of the minor children should stand over for later decision. The matter came before the High Court on 16 March 2009 when the custody of the children was awarded to the respondent and she was ordered to go to the Magistrate’s Court to pursue the issue of maintenance. As far as the forfeiture of the benefits was concerned it was ordered that the joint estate be divided and that the respondent should apply to the High Court for the appointment of a liquidator who would be responsible for the division of the joint estate.
 The respondent was not satisfied with this order in so far as a liquidator’s appointment was concerned as, in her view, the court could readily determine the distribution of the property. Her view in this regard was based on the fact that the estate contained two sites at Khubetsoana, on one of which was an unfinished nine-roomed house, which she said should be awarded to her, and on the other a two-roomed house, which she said should be awarded to her husband, the appellant, together with all the other assets in the estate. The respondent thereafter applied for the rescission of the court’s order of 16 March 2009. The application was not confined to the aspect concerning a liquidator and pertained to the whole of the order of 16 March 2009. After initial opposition by the appellant an order of rescission was granted by agreement on 10 February 2010. Accordingly the property claim reverted to being one for forfeiture. Together with her application for the rescission of the order of 16 March 2009 the respondent applied for (1) a rule nisi calling upon the appellant to show cause why (a) he should not be interdicted from selling, disposing of or alienating in any way any of the assets in the joint estate; (b) the site on which the nine roomed house should not be awarded to her and the site on which the two roomed house should not be awarded to the appellant; and (c) he should not be ordered to pay the costs of the application; and (2) an interim order interdicting the sale, disposal or alienation of any of the assets in the joint estate. The interim interdict was granted: for the rest the application was postponed.
 The matter came before Mofolo AJ, who dealt with the ancillary matters which were outstanding and did not concern himself with the prayers for a rule nisi and an interdict. The parties clearly acquiesced in this way of dealing with the matter as both testified on the merits of the ancillary matters. The learned judge decided to award to the respondent the custody of the minor children and the site on which the unfinished nine-roomed house was erected and to award to the appellant the site on which the two roomed house was erected.
 The appellant appealed against this order on several grounds, which may be summarized as follows:
(1) that the judge erred in dealing with the deferred ancillary prayers instead of the prayers in the respondent’s application;
(2) that the judge erred in giving custody of the minor children to the respondent;
(3) That the judge erred in allowing viva voce evidence to be led in application proceedings without the appellant’s having been received prior notification that this would be done and without giving reasons therefor;
(4) that the judge erred in awarding the nine-roomed house to the respondent and the two-roomed house to the appellant because:
(a) he failed to determine whether the appellant should forfeit the benefits of the marriage
(b) he distributed only the houses and did not divide the rest of the joint estate;
(c) he divided part of the estate, viz the houses,
(5) that the prayer sought by the appellant in her summons (forfeiture) contradicted the prayer sought in the application
 Difficulties were experienced in preparing the appeal record. The tapes on which the respondent’s evidence was recorded went astray and have not been found but the parties have agreed that the summary of the respondent’s evidence contained in the judgment of the court a quo may be accepted as the record of her evidence. The tapes on which the appellant’s evidence was recorded, which had originally also been mislaid, were eventually found and transcribed. The original transcription, which contained a number of errors, was initially included in the appeal record but when this was discovered the corrected version was filed.
 When the matter came before this court the appellant applied for condonation of the late filing of the appeal record. The respondent opposed this application. I am satisfied, however, that the appellant’s legal representatives did all they could to see to it that a proper record was prepared and that a proper case for condonation has been made out. The application for condonation is granted.
 In his judgment the learned judge stated that the respondent testified before him that when the sites on which the houses were built were developed the appellant was not working and she financed the construction from her earnings as a nurse. She said that the appellant had contributed nothing. She said that there had also been two motor vehicles, which she had left with the appellant when she went to the United Kingdom to work as a nurse, and a dining room suite and other items in which she had no interest. All she asked for was that the nine-roomed house be awarded to her.
 In his evidence the appellant stated that he built the house and bought the necessary building materials. He also said that he was living with his new wife in the two-roomed house.
 The judge rejected the evidence of the appellant that he built the house and paid for the materials and accepted that of the respondent.
As I have said, both parties acquiesced in the way the judge dealt with the case, i.e., by considering the merits of the dispute relating to the deferred ancillary prayers after hearing evidence thereon. It follows that the appellant’s first and third grounds of attack against the judgment fail.
Counsel for the appellant stated that custody is no longer an issue between the parties as the elder son is now 22 years old and the younger son 18. The second ground of attack on the judgment accordingly falls away.
As far as the three issues raised by the fourth ground of attack are concerned I do not agree that the judge did not determine the issue whether the appellant should forfeit the benefits of the marriage in community of property. Although he did not say in express terms that the appellant was to forfeit the benefits it must be pointed out that he did not say that the respondent’s claim for forfeiture was not upheld. Indeed he had no discretion to refuse it because it is trite law that an order for forfeiture has to be granted together with a divorce order if the plaintiff claims it: see Voet 24.2.9, cited with approval in Murison v Murison 1930 AD 157 at 163, and Harris v Harris 1949 (1) SA 254 (A.D.) at 264, where Watermeyer CJ said: “under the common law governing a divorce for misconduct forfeiture of benefits automatically follows if claimed by the plaintiff.” Apart from this, the enquiry on which the judge embarked was only relevant if he intended to order forfeiture. As Hahlo put it (The South African Law of Husband and Wife, 4ed, p 435) in discussing the position at common law, before the South African law was altered by statute, “an order of forfeiture …. amounts to an order for division of the joint estate, coupled with an order for forfeiture of the benefits which the guilty spouse has derived from the marriage ….[I]f the contributions of the innocent spouse exceeded those of the guilty one, the guilty spouse will be deprived of the benefits which he had derived from the marriage.”
A court which orders forfeiture of the benefits may include in its order that a specific asset be forfeited to the plaintiff, as was done in Steenberg v Steenberg 1963 (4) SA 870 (C), or it may subsequently, after a general non-specific order for forfeiture is made, declare that a specific asset falls within the benefits forfeited by the defendant, as was done in Ex parte De Beer 1952 (3) SA 288 (T). It follows that the judge cannot be faulted for including in his order a paragraph specifically awarding the respondent the nine-roomed house.
If, as I have held, the judge in effect ordered forfeiture, his order cannot be criticized on the ground that the joint estate was divided unequally. As far as the rest of the assets were concerned the respondent did not ask for them and the appellant testified that she had taken them, an allegation she denied. In the circumstances I think that it would have been preferable if the judge had awarded such other assets as were in the joint estate to the appellant. The order made will have to be amended accordingly, although I do not think that this will affect the costs order to be made.
It follows from what I have said that appellant’s fifth ground of attack on the judgment must also fail because there was no real contradiction between the respondent’s prayer in her summons for forfeiture and the prayer in the notice of motion for the award to her of the nine-roomed house.
The following order is made:
(a) The late filing of the record on appeal is
(b) Subject to paragraph (c) hereof, the appeal is
dismissed with costs.
(c) Paragraph 3 of the order of the court a quo is
altered by the addition of the words ‘and such
other property as is contained in the joint estate
apart from the house referred to in paragraph 1
JUSTICE OF APPEAL
I agree D.G. SCOTT
JUSTICE OF APPEAL
I agree ___________________
JUSTICE OF APPEAL
For Appellant - Adv. K. Ndebele
For Respondent - Adv. M. Rafoneke
Air Jordan Westbrook 0.2
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