CIV/APN/262/82

IN THE HIGH COURT OF LESOTHO

In the matter of :

GETRUDE MASEOTLO SEOTLO - Applicant

v
GREGORY SEOTLO - Respondent

JUDGMENT

Delivered by the Non. Mr. Justice M. P. Mofokeng on the
18th day of January, 1984.

This is an application for an order:-

" (a) Varying paragraph 2 (a) of the Deed of
Settlement between the parties in CIV/T/17/74 dated 5th February 1979
so that :-

(i) Respondent shall maintain Applicant in the sum of
M100.00 per month.

(ii) Respondent shall furthermore maintain the parties
son Seotlo Seotlo in the sum of M150.00 per month.

(iii) Respondent shall furthermore maintain the parties
daughter Lineo Seotlo in the sum of R150.00 per month.

2. 
   Costs.

   
   

3. 
   Further and/or alternative relief."

   
   

In the founding affidavit it is common cause that

the
parties in the present application have two minor

/children ...

—2—

children and that the parties were judicially seperated
on the 5th February 1978 and in the process of so doing they entered
into
and signed a Deed of Settlement which was then made an order of
this Court. Paragraph 2(a) of the said Deed of Settlement is phrased
in the following words:

2.

" The custody of the minor children of the marriage
be and is hereby granted to the plaintiff subject to the following
conditions:

(a) Defendant shall have access to the

children of the parties every last weekend of the month.

3.

Defendant shall maintain the plaintiff and the two minor
children in the sum of R75.00 per month and such amount to be paid to
the
office of the Registrar of the High Court."

It is quite obvious that the paragraph complained of in
this application is paragraph 3 and not paragraph 2(a).

When the Deed of Settlement was made an order of this
Court the two minor children were eight (8) and nine (9) years
respectively.
Today the child who was eight (8) years at the time is
in her last year of primary education and will begin her secondary
education
in the coming year. The child who was nine (9) years has
since completed his primary education

and has begum his High School education at St. Stephens.

/The ...

-3-

The former child has applied to St. Mary's High School.
There is no running away from the fact that High School education is
not cheap
these days.

Applicant avers that her monthly bill for groceries,
domestic help, children's clothing and other basic requirements
approaches the
figure of M200.00 per month. However, there are no
receipts attached.

The applicant avers that she earns a salary

of M327.00 p.m. as a receptionist at the Lesotho
Agricultural Bank. To her knowledge the respondent earns a salary of
M539.50 p.m.
as a teacher/lecturer at Lerotholi Politechnic. Both
figures given here are after tax has been deducted.

It is submitted that the respondent has the means and
ability to pay the increased maintanance as prayed for.

The respondent, in his affidavit, avers that the
applicant and the minor children do not only recieve maintenance in
terms of the
Deed of Settlement which was made an order of this Court
but he pays tuition and clothing for the minor children. However
there are
no receipts attached. He avers that the maintenance he
gives to the applicant and the children is quite adequate. However,
he does
not dispute the applicant's allegations regarding the school
fees, books and clothing of the minor children. He is prepared to
continue

/paying ...

-4-

paying for the above mentioned expenses. He further
admits that the cost of bringing up children has risen considerably
in the past
few years and that is the burden he has to carry.

The Respondent avers that the applicant's salary added
to the maintenance he pays, is almost equal to his after those very
deductions.
However, when one considers that he still has to pay
what he avers, in addition, the application for variation become
unreasonable.

At common law it is the duty of both parents to maintain
their children. The incidence of this duty in respect of each, will
of course
depend upon the relative means and circumstances and the
needs of the minor children from time to time. (Kemp v Kemp, 1958(3)
S.A.
736) As the respondent correctly and realistically put it, the
cost of bringing up of children has risen considerably. The sum of
approximately M30.00 p.m. per child awarded in 1978 for an eight (8)
or nine (9) year old child might have seemed quite adequate
at the
time. But the children have grown and their needs have increased.
One is at the High School already. Receipts were attached
to a
document entitled additional affidavit. The school fees paid at St.
Stephen's Diocesan High School, Mohale's Hoek were attached
showing
sums of M140.00 (Jan. 25, 1983), M135.00 (April 6, 1983) and M100.00
(26/7/83). Respondent also avers that he pays tuition
fees for the
minor children. He has attached no receipts to

/that ...

-5-

that effect. The only inference is that the applicant
provides for the education of the other minor children as well. The
respondent
has not shown that he has any other commitments other than
these two minor children born of the marriage with the applicant whom
he is supporting at approximately M30.00 p.m. per child.

Both Counsel in this matter have been very constructive
in their Heads of Arguments. Counsel for the respondent suggests
that:

^" A just course would be to direct that
the Applicant should be responsible for the payment of school fees
for the one child while
the Respondent would be responsible for the
payment of school fees for the other child and further maintenance
for the children could
be varied taking into account the nett income
of each party and each to contribute proportionately to his or her
income."

while
Counsel for the Applicant has this to suggest:

" It is submitted that the following variation
order would be fair and reasonable in the circumstances:

1. 
   that Respondent pay school fees of
   Lineo Seotlo on
   or before their due
   date.

   
   

2. 
   that Applicant pay school fees of Seotlo
   Seotlo on
   or before their due date.

   
   

3. 
   that Respondent pay maintenance of M82.50
   per month
   for each of the children.

   
   

It
would, therefore, seem to me to be by consent that

/there ...

-6-

there be an order of variation. The Court is not

surprised by this attitude because good cause had been
shown by the applicant.

The order is granted in the following terms:-

1. 
   That Respondent pay all the tuition
   fees for the
   minor child of their
   marriage Lineo Seotlo.

   
   

2. 
   That Applicant pay all the tuition fees
   for the
   minor child of their marriage
   Seotlo Seotlo

   
   

3. 
   That Respondent pay maintenance in the
   sum of M50 00
   per month per child

   
   

4. 
   Each party to pay its own costs.

   
   

JUDGE

For the Applicant : Mr. Moiloa " "
Respondent . Mr Matsau