CIV/T/104/87

IN THE HIGH COURT OF LESOTHO
In the
matter between:-

MAMATHEALIRA MONAPATHI (born Sennane) Plaintiff

SEKHEFU MONAPHATHI Defendant

J U D G M ENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 7th day of July, 1989.

The piaintiff and the defendant were married in
community of property on the 24th December, 1978, On the 21st
November, 1988 a final
decree of divorce was granted on the ground of
defendant's malicious desertion. The defendant had withdrawn his plea
on 14th November,
1988 and he had agreed that the plaintiff should
proceed with the divorce on the ground of malicious desertion.

On the 21st November, 1988 when the divorce was granted,
the parties agreed that pendente lite the plaintiff should
have the custody of their daughter and that the defendant should have
the custody of their son. The parties
agreed that the custody of the
minor children, forfeiture by the defendant of the benefits arising
from the marriage and contribution
by the defendant towards the
defendant's legal costs should be left over for determination by the
Court at a later stage.

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On the 5th May, 1989 the parties gave evidence on the
matters left over for determination at a later stage. The plaintiff
testified
that at the moment she is living at her maiden home with
her daughter who has been in her custody since she left the marital
home
in October, 1988. The son, Mathealira, has been living with the
defendant's parents and her access to him has been made very
difficult
by the defendant's parents because they hate her. Whenever
she went to the home of her former in laws they refused to tell her
the
whereabouts of her son. She expressed fear that her son is not
being cared for properly by his grand­parents.

They have a house with five rooms. It is well furnished.
She works at the Lesotho Bank and obtained a loan from the bank
to build the matrimonial house. At the moment she is still repaying
the loan but the defendant is making no contribution towards the
repayment of that loan. She also pays the annual insurance premium.
The rates have not been paid for several years and the
outstanding amount is M243-44. She had asked the defendant to pay the
rates but it seems that he has not been paying them.

The plaintiff stated that as far as the furniture is
con­cerned the defendant contributed nothing except in the
purchase of the
bedroom suite. They have three motor vehicles with
Reg. Nos. A 4101, A 4565 and AB 780. The first vehicle was bought for
them by
the defendant's father. The second one was bought by the
defen­dant alone. The third one was bought by her.

She asks that the defendant be ordered to contribute an
amount of M800 towards her legal costs and M200 per month per child
as their
maintenance.

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The plaintiff admitted that when she went to see the
children at the home of the defendant's parents their daughter, used
to come
to her outside the yard but their son was afraid to come to
her on the ground that his grandparents would scold him. She denied
that on the 30th November. 1988 she went to the home of the
defendant's parents and insulted the defendant's mother. She denies
that
there was a skirmish between her and the defendant's parents and
their domestic servant. She,admitted that while she was living with
the children at her maiden home their son left on his own and went to
Seapoint to live with his grandparents. The reason why he left
was
that he did not want to be reprimanded when he did wrong things.

The defendant testified that when the plaintiff left in
October, 1988 she left the children at the parties' marital home. At
that
time they had a domestic servant who took care of the children.
He alleges that the plaintiff came back and by threats forced the
domestic servant to leave. He then took the children to his parents
at Sea-Point. They stayed there until December,1988 when their
daughter went to live with the plaintiff at her maiden home. He says
that his son is now living with him at the marital home because
he
has a new domestic servant. The children still visit each other and
they go to the same school.

He indirectly repays the loan for the house because he
gives all his salary to the plaintiff at the end of the month. It was
by agreement
that the loan should be in the name of the plaintiff
because as an employee of the Lesotho Bank she was entitled to a very
low interest
of 3% instead of the prime rate of interest. He
alleges that the entire furniture in their house was bought by him.

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The law seems to be very clear that a spouse should not
be allowed to benefit financially from a marriage which he has
wrecked, the
plaintiff in an action for divorce on the grounds of
adultery or malicious desertion may claim as against the defendant
the forfeiture
of all financial benefits past and future, which the
latter has derived or is to derive from the marriage whether by way
of community
of property or under an antenuptial contract. See The
South African Law of Husband and Wife by Hahlo 4th edition, at page
430.

It is also our law that an order for forfeiture of
benefits will not be made unless it is claimed by the plaintiff, but
if it is claimed,
the court has to discretion to withhold old the
order. See Opperman v. Opperman, 1962 (1) S.A 456 (S.W.A.).

ft is common cause that the divorce in the present
case was based on malicious desertion the Court has no discretion to
withold
an order of forfeiture Mr. Matsau attempted to make a
distinction between malicious desertion and constructive desertion
but failed to refer to any authority. I am
not aware of any authority
that constructive desertion is not malicious. I am of the opinion
that it (constructive desertion) is
even more malicious because the
defendant usually assaults the plaintiff for no reason­able cause
and makes life for her very
difficult forcing her to leave the
matrimonial home. In the present case the defendant did exactly that
and forced the plaintiff
to leave the marital home. She is an
innocent party who must not be made to suffer much more than she has
already suffered.

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I, therefore, have no alternative but to order
forfeiture by the defendant of the benefit arising from the marriage.

In Qpperman v. Opperman (supra) it was held that
although in divorce actions the Court has no discretion to withhold
an order for the forfeiture of the
benefits arising from a marriage
in community if that is claimed by the innocent spouse, it still has
a discretion to decide whether
or not it should itself determine the
value of the joint estate and define the portion that the guilty
party will have to forfeit.

In the present case the joint estate consists of a
five-roomed house with furniture and three motor vehicles. I have not
determined
the value of the joint estate so as to define the portion
which the defendant will forfeit. However, the property has been
described
in such detail that I am of the opinion that I can define
what portion the defendant shall forfeit. I think the defendant must
forfeit
the house, all furniture and the motor vehicle which the
plaintiff bought with her own money.

I now wish to deal with the question of custody of
Mathealira who is still in the custody of the defendant. With regard
to the custody
of the girl, the defendant has agreed that her custody
be awarded to the plaintiff.

It is trite law that in deciding to which spouse the
custody of a minor child shall be awarded on divorce or judicial
separation
our Court have grown away from rules directed towards
penalizing the guilty spouse and towards a recognition of
predominance of
the interests of the child.' (Fletcher v.
Fletcher, 1948 (1) S.A. 130

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(A.D.) at p. 144). However, the Court went further to
point out that in deciding which party should have the custody of the
children
on divorce the first consideration is what is best in the
interests of the children; the fact that the one spouse is the
innocent
spouse cannot altogether be ignored. The question of
innocence comes into account only when it is not clearly established
what is
best for the children; but the fact that that party is also
the father is irrelevant. (Milstein v. Milstein, 1943 T.P.D.
227).

In Dunsterville v. Dunsterville, 1946 N.P.D. 594
at p. 596 Broome, J. said:

"If the children's welfare-using that word in its
widest sense and not confining it to mere physical well-being - will
be equally
safeguarded with either parent, then considerations of
guilt or innocence and of natural guardianship will tip the scale,
but other­wise
I do not think they carry any weight, though the
question of guilt or innocence may have a bearing upon the question
of welfare."

The difficulty that I am facing in the present case is
that there is practically no evidence that any of the spouses is not
a fit
and proper person to take proper care of the children in his or
her custody at the moment. The boy Mathealira has been in the custody
of the defendant for a fairly long time and seems to be quite happy
to stay with his father. He left the plaintiff on his own to
go and
live with his father. The plaintiff testified that Mathealira left
her because he is a child who does not want to be reprimanded
or to
be restrained from doing things regarded by her as being bad. But
there is no evidence that the defendant is a weak disciplinarian
who
will allow the boy to do whatever bad things he wants to do. I am of
the opinion that the fact that he has never run away from
the
defendant is an indication that he likes to live with him.

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The question of accommodation of the children must also
be given special attention. It will serve no good purpose to give
custody
to a parent who has no house or means of renting a reasonably
good house. The parties matrimonial home in the present case has
been
given to the plaintiff and this means that the defendant and
Mathealira must leave that house and rent a house or go and live with
the defendants parents. The defendant's salary is Ml 550-00 gross
and may afford a rent of about M200 per month. Alternatively he
may
go and live with his parents for some time before he gets a suitable
house. From the little that was said about the defendant's
parents
during the trial, I had the impression that they are a well to do
family with reasonable accommodation. They have lived with
their
grandson for some time and it seems that he was happy with them. I
should not be under­stood to mean that this Court can
make an
order that Mathealira should go and live with this grandparents,
about whom the Court knows almost nothing, and to allow
the defendant
to live away from him. I mean that if there is enough and suitable
accommodation at the home of the parents of the
defendant he may live
there with his son. But the Court cannot allow the defendant to leave
Mathealira in the care of his parents
while he is living elsewhere.
As soon as that happens the plaintiff shall have a right to complain
and to have the order varied.

I am aware that separating children from one another is
rather unusual but it is sometimes done when the uprooting of a child
from
the environment it is used to may cause more harm than good. I
have already said that Mathealira does not seem to like to live with
his mother and even ran away from her. He is now ten(10)

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years old and seems to be attached more to his father
than to his mother. In Kennedy v. Kennedy, 1929 E.D.L. 257 children
were separated
and given to the two parents. In the present case the
two children go to the same school where they meet every day.

The maintenance of the girl, Nomazondo whose custody
will be given to the plaintiff, creates some problems as well. The
salary of
the plaintiff is just over M1 200. She is going to continue
to repay the loan for the house. It was not made clear what the
monthly
instalment is. On the other hand the defendant may have to
rent a house if he is not accommodated at his parent's home. Each
spouse
shall have to continue to pay a housekeeper because they are
working. Taking all these factors into account I am of the opinion
that
the defendant can afford M100 per month.

For the foregoing reasons I make the following order:

1. 
   The defendant shall forfeit the house, all
   furniture
   and the motor vehicle which was
   bought by the plaintiff with her
   own money
   (Reg. AB 780);

   
   

2. 
   Custody of Nomazondo is given to the plaintiff;

   
   

3. Custody
   of Mathealira is given to the defendant;

   
   

4. 
   The defendant shall pay M100 per month as
   maintenance
   of Nomazondo; the money shall be
   paid on or before the last day
   of every month
   with effect from the 31st July, 1989;

   
   

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(e) The defendant shall contribute an amount of
M700-00 towards the legal costs of the plaintiff;

J.L. KHEOLA JUDGE

7th July, 1989.

For the Plaintiff - Mr. Mafisa For the Defendant -
Mr. Matsau.