CIV/APN/102/84

IN THE HIGH COURT OF LESOTHO
In the
Application of

NANDY KHALI Applicant

v

EDWARD MOEKETSI KHALI Respondent JUDGMENT

Delivered by the Hon. Chief Justice Mr Justice T S.
Cotran on the 25th day of June 1984

This is an application in which the applicant Mrs. Nandy
Khali (nee Phatela) seeks -

1. 
   an order to vary three clauses of a deed of
   settlement
   dated 5th May 1982 {annexure A
   to the founding affidavit) which
   was made
   an order of the Court following upon the
   granting to
   her of a decree of divorce from
   the respondent, her former
   husband Mr. Edward
   Moeketsi Khali, and

   
   

2. 
   an order to commit the respondent, her former
   husband
   Mr Edward Moeketsi Khali, to prison
   for contempt of Court.

   
   

With regard to the application for variation of the deed
of settlement dated the 5th of May the applicant complains -

(1) that whilst the respondent has hitherto been paying
her maintenance for the children at the beginninq of each month, in
the month
of January 1984 payment was made on the 14th, in the month
of February on the 20th, in the month of March on the 15th and in the
month of April on the 19th causing her and the minor children
"great inconvenience and suffering" and that henceforth the
respondent should make payments on the
first day of the month at the
office of the Registrar of the High Court,

/(2) that

-2-

2. 
   that whilst the respondent was in fact
   "paying
   satisfactorily" for clothing for
   the children, he was
   "showing preference"
   towards one of them, the eldest
   She
   wants M300 per annum per child in cash in
   lieu of the
   undertaking "to avoid
   unnecessary Disputes",

   
   

3. 
   that the respondent has defaulted on his
   undertaking
   to transport the younqer
   child to school and she had to hire
   a
   taxi to take him there and back. She
   wants M25 per month for
   the fare

   
   

With regard to the application for committal for
contempt of Court the applicant avers that the respondent has -

1. 
   contravened clause 2(3)(c) of the deed of
   settlempnt
   of 5th May 1982 which required
   him to pay the water and sewerage
   Dills and

   
   

2. 
   failed to pay her the sum of M2,780 being
   the rent
   from property which in terms of
   another deed of settlement,
   reached upon
   the division of the estate dated the
   14th
   February 1983 (annexure C to the
   founding affidavit) was to be
   hers

   
   

The respondent avers that there was no delay in the
monthly maintenance enemies which were paid on the first of each
month. He denies
that he has preference for the eldest of his
children and denies that he failed to take the youngest child to
school.

The respondent says the applicant is tryinq to create
"illusions" of preference to antaqonise the other children
He elaborates
this matter by saying that the applicant will not use
the cash to clothe the children The eldest is a girl now aged 16 and
he simply
qave her a job in his office (3 firm of accountants) durinq
her school holidays As to the youngest child what happened
was that the applicant made arrangements with one of her relatives

/who

-3-

who runs a taxi business to take the boy to school and
he would be perfectly happy to take the boy daily as hitherto.

The respondent resists the application to commit him to
prison for contempt He admits that he has been in arrears in payment
of the
water bills but these were paid nevertheless though not
timeously He admits receiving a cheque for the rent of the property
that
was part of the joint estate which, by agreement, was to qo to
her, but he says that the applicant herself had informed him of its
impending payment, ana that when he did receive the cheque he tried
to contact her on several occasions but was met with abusive
lanquaqe
and rebuffs He has lost a senior post in the government, has qone to

prison on her account and he has just started to pick up
the

threads of his new life He said (from the bar) that he
has since

remarried and apart from his three minor children
from the applicant he has got two dependents

In short he swears -

1 that applicant deliberately withheld encashment
of
the maintenance cheques to "build up a case",

2 that applicant in effect falsely accuses him
of
preferinq one child to the others,

3 that she made alternative arrangements to take
the
boy to school on purpose so that the boy
will not come into
contact with him,

4 that the delay in payment of' the water bills
was
not contempt and she had "no business to
lodqe" this
complaint since the water supply
was never disconnected.

Mr. Sello represented the applicant The respondent had
briefed an attorney who, for some reason or the other, withdrew, with
the
result that he conducted his own) defence The respondent
has made serious allegations against the applicant and she had every

/opportunity

-4-

opportunity to file an affidavit in reply to these
allegations but she did not.

It is of course difficult in these circumstances to know
whose typewriter is lying but the respondent's averment that the
applicant
wants to make "a business of this divorce" and
that the object of the proceedings is his harrassment have not been
denied
On the other hand the respondents allegations have a ring of
truth, best summarised in his own words in the last but one paragraph
of his affidavit. From the papers I have formed the opinion that the
applicant has had a fair deal in consequence of the divorce
but does
not wish to give her former husband any rest. With the exception of
the complaint about the non payment of the rent the
other allegations
were really without merit She wants to use the law of contempt as a
weapon of terror and I do not think this can
be encouraged. In the
result -

1 The first leg of the application to vary the deed of
settlement dated the 5th May 1984 is dismissed The respondent however
will
make payment of maintenance to the Registrar of the High Court
but I order this only because he agreed to do it Payment will be done
on or before 5th of each month save that if it falls on a Saturday,
Sunday, or a public holiday, on the day following.

2. The second leg of the application to commit the
respondent for contempt of Court is also dismissed but the respondent
is given
six months grace from today to pay the rent he already
received to the applicant I warn the applicant however that I will
not consider
committal to prison unless she is able to persuade the
Court in future that the respondent is deliberately flouting the
settlement
terms

There will be no order as to costs. Time for appeal will
run from

23rd July 1984

CHIEF JUSTICE
25th June 1984

For Applicant Mr Sello )

For
Respondent in Person) with copy of Judgment