CIV/APN/174/83
IN THE HIGH COURT OF
LESOTHO

In the Application of

'MATOKA TSEPE Applicant

v
DAVID TSEPE Respondent

REASONS FOR JUDGMENT

Filed by the Hon. Mr. Justice B.K. Molai on the 27th
day of February, 1986.

1 have already disposed of this application and the
following are my reasons for the decision that I made.

On 16th August, 1983, the applicant herein filed with
the Registrar of this Court a notice of motion in which she moved the
Court
for an order framed in the following

terms

1. 
   That an order of maintenance granted
   by this Court
   on 21st June, 1982 in
   CIV/T/392/81 be varied by increasing
   the
   monthly instalments from M20 to
   M50.00.

   
   

2. 
   That Respondent pay costs of this
   application in the
   event of his
   opposing it.

   
   

3. 
   Alternative relief."

   
   

On 20th September, 1983, the Respondent intimated his
intention to oppose the application. Affidavits were filed from
either side.

In as far as it was material, the facts that emerged
from the affidavits were briefly that the parties got married to each
other by
civil rites on 8th December, 1980. The marriage was,
however, dissolved by an order of this Court dated 21st June, 1982
when custody
of the only

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minor child of the marriage was awarded to the Applicant
and the Respondent ordered to maintain it at the rate of "M20
per month
until a further order of this Court, with effect from 1st
day of July, 1982." The rate of maintenance was fixed by
agreement
of the parties in consideration of the fact that Respondent
was a student at Leloaleng Technical School and the least that he
could
afford to pay for the main­tenance of the minor child of
the marriage was M20 per month.

According to Applicant, the circumstances had then
changed to warrant her to seek an order for the variation of the rate
of maintenance
as prayed in terms of prayer (a) of the notice of
motion in that Respondent had completed his studies and was employed
as a qualified
motor mechanic. He was, therefore, able to pay
adequately for the support of his minor child at the rate of M50 a
month. That was,
however, denied by the Respondent who deposed that
he had not as yet qualified as a motor mechanic and had only taken a
temporary
employment with the Lesotho National Bus Cor­poration
to find the necessary funds so that he could return to Leloaleng
Technical
School for the completion of his studies. He was,
therefore, still unable to pay more than the agreed M20 as
maintenance for the
child.

The question of whether the Respondent had completed his
studies at Leloaleng Technical School and was therefore, a qualified
motor
mechanic could not be determined on the papers before me. It
was only the word of the Applicant as against that of the Respondent.
A little effort to inquire from Leioaleng Technical School could have
enlightened the court on this matter. This was, however, not
done.

It was also not enough for the Applicant to contend
herself with the averment that the Respondent was employed and
therefore, able
to pay an amount of M50 as monthly maintenance for
the child. The Court had to be given an idea of the extend to which
Respondent's
income had been en-henced by reason of his employment so
as to justify his ability to pay the amount. That, in my view, could
have
been easily done by filing an affidavit or proof of some kind
from the Respondent's employers. This was again not

done.

3/
This onus

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The onus of proof that the circumstances had changed to
warrant her to bring this application to court rested squarely on the
shoulders
of the Applicant on the well known principle that he who
avers bears the onus of proof. I was not convinced that, in the
present
case, the applicant had satisfactorily discharged that onus.

It may be mentioned here that when the court sat to hear
arguments in this matter, Mr. Maqutu who represented the
Respondent verbally moved application to amend Respon­dent's
answering affidavit by an addition that the
minor child was not
fathered by the Respondent, a fact which he said had surfaced
recently after the pleadings had been closed. Mr. Moorosi for
the Applicant told the Court that he would not bother to oppose
Respondent's application to amend his answering affidavit but
would
dispute the allega­tion that the Respondent had not fathered the
minor child of the marriage. In my view an application
of this nature
should have been made on notice served upon the other party in good
time to enable her to reply. However, as the application
to amend the
answering affidavit was not opposed, I was prepared to grant it by
agreement of the parties. I was then called upon
to decide the
question of the paternity of the minor child of the marriage. That
was a physical impossibility. There was no way I
could do it in the
absence of any evidence whatsoever.

For the above reasons, I dismissed the application with
costs save that the question of paternity was to go for trial and in
that
regard the parties were allowed to file the necessary papers to
complete the pleadings before viva voce evidence could
be led on a date to be arranged with the Registrar

B.K. MOLAI,

JUDGE.
27th February, 1986.

For Applicant Mr. Moorosi
For Respondent Mr.
Maqutu.