HIGH COURT OF LESOTHO
MOHALE KHABO Applicant
'MALEBONA KHABO Respondent
was granted between the two parties on 8th September, 2004 in
CIV/T/31/2003. It was granted by default after the defendant
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.
Application, the Applicant is asking this court to rescind that
Judgment where divorce was granted. The issue being whether
-defendant was properly served by Post or rather whether service by
proper service in terms of Rule 5(i) of the High Court Rules, read
with sub rule (3) thereof.
enough, the Rules do not provide for any service by Post. But we have
to look at the practical effect of rescinding a divorce
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.
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.
point that was raised by the Applicant was whether the alleged
adultery was proved as this affects one's status. He was
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
also felt that if that was the case, divorce should not
granted. But on visiting the proceedings in CIV/T/31/2003 where
divorce was granted, from the recording tape transcribed
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.
Respondent even went further to say that one never condones that
which she does not know, you condone because you have knowledge
the wrong. She never condoned the adultery hence her filing of a
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.
Court granted divorce by default, ancillary prayers were also
granted. These being, forfeiture of the benefits arising
of the minor children,
towards legal fees in the amount of M3, 900,
at M1,500.00 per month per child.
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.
of Appeal has given guidance in Monapathi v Monapathi 1992-93 LLR &
LB 29 on the order of forfeiture of benefits of
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
now to the question of maintenance. Before granting this order of
maintenance, the Court was never told as to how much the
earns. The order may have gone far beyond the Applicant's means. No
assessment on the ability of the applicant to pay
The Court therefore gives the following order on the rescission
Application for rescission of Judgment for divorce fails and it is
dismissed for reasons already stated above.
order for custody of the minor children and contribution towards
legal fees still stand.
granted in relation to forfeiture of the benefits of marriage and
the question of maintenance only.
the interim, no party is allowed to dispose of any property of the
to be costs in the course.
24th October, 2005.
For Applicant: Mr Mphalane
For Respondent: Mr Phafane
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