CIV/APN/1/81IN THE HIGH COURT OF LESOTHOIn the appeal of : SOAI RAMORITING Appellantand'MAMOTLAOPA RAMORITING RespondentJUDGMENTDelivered by the Hon. Acting Judge B.KMolaion 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 thathe would not write a testimonial for him to transferto 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 theinstructions /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. MonaphathiFor Respondent : In person