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 -
an order to vary three clauses of a deed ofsettlement dated 5th May 1982 {annexure Ato the founding affidavit) which was madean order of the Court following upon thegranting to her of a decree of divorce fromthe respondent, her former husband Mr. EdwardMoeketsi Khali, and
an order to commit the respondent, her formerhusband Mr Edward Moeketsi Khali, to prisonfor 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
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that whilst the respondent was in fact"paying satisfactorily" for clothing forthe children, he was "showing preference"towards one of them, the eldest Shewants M300 per annum per child in cash inlieu of the undertaking "to avoidunnecessary Disputes",
that the respondent has defaulted on hisundertaking to transport the younqerchild to school and she had to hire ataxi to take him there and back. Shewants M25 per month for the fare
With regard to the application for committal for contempt of Court the applicant avers that the respondent has -
contravened clause 2(3)(c) of the deed ofsettlempnt of 5th May 1982 which requiredhim to pay the water and sewerage Dills and
failed to pay her the sum of M2,780 beingthe rent from property which in terms ofanother deed of settlement, reached uponthe division of the estate dated the14th February 1983 (annexure C to thefounding 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
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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 encashmentof the maintenance cheques to "build up a case",
2 that applicant in effect falsely accuses him ofpreferinq one child to the others,
3 that she made alternative arrangements to takethe boy to school on purpose so that the boywill not come into contact with him,
4 that the delay in payment of' the water billswas not contempt and she had "no business tolodqe" this complaint since the water supplywas 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
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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