CIV/APN/526/04 CIV/T731/2003
IN THE HIGH COURT OF LESOTHO
In the Matter Between:
LEBOHANG MOHALE KHABO Applicant
And
FUMANE 'MALEBONA KHABO Respondent
Ruling
Divorce was granted between the two parties on 8th September, 2004 in CIV/T/31/2003. It was granted by default after the defendant had been served with the notice of set down by registered post. A postal slip was produced in Court as proof of that posting to the last known address of the defendant.
In this Application, the Applicant is asking this court to rescind that Judgment where divorce was granted. The issue being whether the -defendant was properly served by Post or rather whether service by Post
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was a proper service in terms of Rule 5(i) of the High Court Rules, read with sub rule (3) thereof.
True enough, the Rules do not provide for any service by Post. But we have to look at the practical effect of rescinding a divorce order that was granted more than a year ago. Wouldn't that be remarrying the same parties once again. Not only that, but to be born in mind also is the fact that Applicant is the person who initially filed divorce and the respondent later filed her counter-claim. This therefore shows that both parties want out. It is not the duty of this Court to marry people but to divorce people. In the interest of justice therefore, relying on the provisions of Rule 59 of the High Court Rules, the Court condones the non-compliance with Rule 5 of the High Court Rules, on the service of the notice of set down.
The other point that was raised by the Applicant was whether the alleged adultery was proved as this affects one's status. He was saying this because the Respondent had said in the divorce case, that her husband committed adultery in 1998 and 1999 but that she never condoned the adultery, but there was a child that was born between the parties in 2003.
The Court also felt that if that was the case, divorce should not
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have been granted. But on visiting the proceedings in CIV/T/31/2003 where divorce was granted, from the recording tape transcribed by the recorder, the Court seemed to have also shown its concern concerning the birth of the last born baby in 2003. The answer that was given or that came from the Respondent was that when she slept with her husband after 1999 she was not yet aware of the adultery he had committed with some two other ladies mentioned by names.
The Respondent even went further to say that one never condones that which she does not know, you condone because you have knowledge of the wrong. She never condoned the adultery hence her filing of a counter claim.
The Court is in agreement with the Respondent, that there has to be knowledge of the adultery by the other party before she could be said to have condoned the adultery. The Respondent clearly said she could not have slept with her husband if she was by that time aware of the adultery. The correct approach in this case therefore being when the other party becomes aware of adultery not when it was committed.
When the Court granted divorce by default, ancillary prayers were also granted. These being, forfeiture of the benefits arising out of marriage,
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custody of the minor children,
contribution towards legal fees in the amount of M3, 900,
maintenance at M1,500.00 per month per child.
Respondent's Counsel on the other hand conceded that the ancillary prayers could be re-opened but not the issue of divorce as this would have far reaching consequences particularly on the status of the parties. This would bring undesirable consequences. One of the parties may have decided to marry immediately after the granting of divorce.
The Court of Appeal has given guidance in Monapathi v Monapathi 1992-93 LLR & LB 29 on the order of forfeiture of benefits of marriage. Before awarding such an order the Court still has to determine the contribution of each party to the joint estate where marriage is by Community of Property as in the present case. This has not been done, the issue concerning property was not thoroughly investigated.
Coming now to the question of maintenance. Before granting this order of maintenance, the Court was never told as to how much the Applicant earns. The order may have gone far beyond the Applicant's means. No assessment on the ability of the applicant to pay such maintenance.
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The Court therefore gives the following order on the rescission Application:-
The Application for rescission of Judgment for divorce fails and it is dismissed for reasons already stated above.
The order for custody of the minor children and contribution towards legal fees still stand.
Rescission granted in relation to forfeiture of the benefits of marriage and the question of maintenance only.
In the interim, no party is allowed to dispose of any property of the marriage.
Costs to be costs in the course.
M. HLAJOANE
JUDGE
24th October, 2005.
For Applicant: Mr Mphalane
For Respondent: Mr Phafane
