CIV/APN/1/81
IN THE HIGH COURT OF LESOTHO
In the appeal of :      
SOAI RAMORITING  Appellant
and
'MAMOTLAOPA RAMORITING   Respondent
JUDGMENT
Delivered by the Hon. Acting Judge B.KMolai
on the 17th August, 1981
The Appellant in this case was, on the 8th August,
1977, ordered, by the Magistrate Court in Maseru under
the Provisions of Section 8(2) of the Deserted Wives and
Children Proclamation No. 60 of 1959, to maintain the
Respondent, his customary law wife, at the rate of M55 a
month. He had been paying this amount until in September,
1979 when the order was, on the application of Respondent,
varied and the amount increased from M55 to M85 a month
to enable her to maintain one of the children of the
marriage, an 18 year old boy Motlaopa, alias, Reginald
or Scott Ramoriting, who had admittedly been staying with
Respondent since the beginning of the year 1979.
The appeal is against this variation of the order on
the grounds that there are no valid reasons for awarding
an increase in the amount of maintenance fee as the
Appellant had been adequately providing for the child
until Respondent frustrated him by removing the child
from his control; the claim for increase of maintenance
for the child is a claim for maintenance of Respondent in
desguise; and the increase was excessive and oppressive
having regard to Appellant's other commitments.
In support of her application for the variation of
the original order, Respondent gave evidence on oath.
She told the Court that when in 1977 Appellant was ordered
to maintain her at the rate of M55 he had undertaken to
maintain all the minor children of the marriage, including
the boy Motlaopa Ramoriting.
Notwithstanding          /2     

-2-Notwithstanding that undertaking Appellant had, since Hay,
1979 failed to pay the school fees for Motlaopa who had
decided on his own to come and stay with her in Maseru.
Respondent, therefore, applied that the amount of her
maintenance fee be increased from M55 to M90 so as to
enable her to pay school fees for the boy.
According to the evidence, after he had passed his
Standard 7 Motlaopa was sent to Christ The King High
School where Appellant was paying for his education.
When he was due to proceed to Form D he was not re-admitted.
Only those students who had obtained first or second class
passes were admitted to Form D in that school and
Motlaopa apparently did not satisfy the requirements.
Appellant's efforts to secure a place for the boy at
St. Agnes High School, another boarding school like
Christ The King High School, were unsuccessful. With
the help of Motlaopa's paternal aunt, Appellant was
ultimately able to find a place for the boy at 'Mamathe
High School where he attended classes as a day scholar.
While attending school at 'Mamathe High School, the boy
was staying at, the home of his paternal aunt where
Appellant was paying M15 for his boarding. The aunt
testified - that she was staying happily with the boy..
She even provided him with the money for the cinema and
on occasions allowed him to visit his mother in Maseru.
As all the school fees were paid through her, the aunt
had duly paid the money at 'Mamathe High School, but it
had to be returned when the boy did not turn up for
classes at the start of the school year 1979. The
evidence further disclosed that at the end of 1978 Motlaopa
was successful in his studies and promoted to Form E.
Motlaopa however told the Court that he was unhappy
at his aunt's place because the latter often complained
that food was expensive and her children did not want
him to use their basins. He therefore decided on his own
to leave 'Mamathe High School and return to Christ The
King High School. His attempt to obtain a testimonial
letter from the Principal of 'Mamathe High School was
unsuccessful as the Principal, Mr. Matlosa, told him that
he would not write a testimonial for him to transfer
to another school without the authority of his parents.
Respondent       /3

-3-
Respondent denied that she was instrumental to the
boy's eventually obtaining a testimonial letter and
transferring from 'Mamathe High School, thus getting
out of Appellant's control. Nevertheless, she admittedly
applied and secured a place for him at a different school
without the knowledge and consent of Appellant. According
to her she believed Motlaopa had told his father about
his decision to transfer from 'Mamathe High School.
Motlaopa however admitted that he had reported his
decision to his grandmother but not to Appellant until
August, 1979. Appellant told the Court that after the
boy had. gone missing and did not return for classes at
'Mamathe High School, he looked for him and in his
investigations found that Respondent had been instrumental
to the boy's leaving'Mamathe High School, thus getting
out of his control. In support of his finding Appellant
handed in as Exhibit a copy of a testimonial letter (Exhibit
B), apparently written and signed by the Principal of
'Mamathe High School. That letter reads, inter alia :
"This is to certify that Reginald
Ramoriting joined a Form D class
in January, 1978 and at end of
the year was promoted to Form "E"
class.
In January 1979 on his own accord
he was granted a transfer from
this school through instructions
from his mother."(my underlining)
In his evidence, Appellant assured the Court that
Respondent had authorised the removal of Motlaopa from
'Mamathe High School and, therefore, out of his control
without his knowledge or consultation with him. However,
in order to avoid more troubles with Respondent, with
whom he was not in good terms, Appellant neither attempted
to fetch the boy from the school to which he had been
sent without his knowledge and consent nor did he pay the
school fees at that school.
Respondent told the Court that although at the time
the original maintenance order was made she was not
working, she is now employed at the salary of M46-50 a
month. Nevertheless, Appellant's salary had also increased;
he was receiving M40 a month as his pension from the
Lesotho Government;
and had          /4

-4-
and had acquired a site in Maseru from which he was
collecting rental money.
Appellant conceded that his salary had increased
from M200 to M265 a month; he received M40 a month as
pension from the Lesotho Government; had acquired a
site in Maseru and was collecting M126 a month as
rental money from tenants for the use of the rooms,
one of which Respondent had, on her own and without
Appellant's approval, decided to occupy and live in it
without paying rent after she had expelled a former
tenant. In any event, all the rental money was utilized
to clear a Bank Loan previously obtained for the purchase
of the site. There was still a balance to be cleared
on the Bank Loan.
Appellant, in his evidence, gave a detailed account
of his commitments of expenses, including payments of
Respondent's maintenance fee. They all appear to be
necessities. The total amount came to a soring figure
of roughly M3,363-40 a year. His net income was
approximately M3,660 a year. That seems to leave him
with a lean balance of about M296-60 a year. In the
circumstances Appellant maintained, rightly so in my
view, that it would be a physical impossibility for him
to comply with the Court order if the rate were to be
increased to M85 a month.
The magistrate replied to the grounds of Appeal but
does not appear to have filed reasons for judgment.
However, from the evidence it would appear that it was
not disputed that Appellant bad been doing everything in
his power to provide for Motlaopa until the boy moved
out of his control. Respondent denied to have removed
Motlaopa from 'Mamathe High School where he was under
the control of Appellant and adequately maintained by
him. However, there was evidence implying that to
transfer from 'Mamathe High School to another school the
boy required a testimonial letter. On the evidence of
Motlaopa himself the Principal of 'Mamathe High School.
was. unwilling to make it without permission from the
parents. If Motlaopa eventually obtained that testimonial
letter, as he did, it seems probable that it was on the
instructions     /5

-5-
instructions of Respondent who admittedly was responsible
for applying for him at a different school. This being
so, an irresistable inference to be drawn is that on
the balance of probabilities Respondent was instrumental
to the boy's leaving 'Mamathe High School and getting
out of Appellant's control. To that extent Respondent
frustrated Appellant's efforts to provide for Motlaopa
and, in my view, it cannot be in her mouth now to say
Appellant is willfully neglecting to support the boy.
It is obvious, from the evidence, that Respondent's
application for the increase of her maintenance fee was
an indirect application for the maintenance of Motlaopa
who, at the time of this applications was admittedly 18
years old. The application was, however, brought under
the Provisions of the Deserted Wives and Children
Proclamation No. 60 of 1959. In terms of Section 2
thereof a child, for purposes of Section 8, means a child
below the age of fifteen years. It seems to me, therefore,
that Appellant could not be ordered, in terms of Section 8
of that Proclamation, to maintain Motlaopa who was, at
the time, already 18 years old.
Mr, Monaphathi for the Appellant argued that although
under the Provisions of the Deserted Wives and Children
Proclamation, supra, Appellant is liable to provide his
children with food, clothing, lodging or medical aid,
there is no legal obligation on him to educate them.
That seems to be the view held by S. Poulter, and I
respectfully agree with that view. At page 184 of his
work, Family Law and Litigation in Basotho Society, the
learned author has this to say :
"Parents and guardians are obliged
by law to support, protect and
maintain their children by feeding
and clothing them and providing
them with a house but there is no
legal obligation to send them to
school."

appeal   /6

-6-
appeal must succeed and it is accordingly allowed.
No order as to costs is made,

17th August, 1981
For Appellant : Mr. Monaphathi
For Respondent : In person

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