HIGH COURT OF LESOTHO
by the Honourable Madam Acting Justice N Majara on 11th May 2005
11th May 2005, I gave a ruling in this matter and promised that full
reasons would follow. I now proceed to give my reasons.
herein approached this court on an urgent basis for an order in the
a Rule Nisi be issued calling upon the Respondent to show cause why
the following prayers shall not be made absolute.
with the normal modes of service due to the urgency of this matter.
to be arrested and brought to Court to found jurisdiction.
Respondent to prison for contempt of Court.
the Respondent to pay the costs of this application.
Applicant such further and/or alternative relief.
prayer 1 (a) and (b) should operate with immediate effect.
20th April 2005, Mr Matooane appeared before me on behalf of the
applicant and moved the application. Having heard Counsel
applicant, the Court granted the application and the rule was made
returnable on the 2nd May 2005.
2nd May 2005, Respondent was duly brought before the court and her
Counsel, Mrs Kotelo applied for the matter to be postponed
next day to enable respondent to consult with her former attorney of
record in the divorce proceedings and to ask him
to file an affidavit
in support of her opposition of the application. This was because the
application came about as a result of that divorce matter. The matter
was duly postponed after respondent handed in her
security for her attendance until the matter could be finalized.
later, the matter proceeded. A brief background to this application
is that, on the 11th December 2001, a deed of settlement
divorce proceedings between the two parties herein was handed in and
made an order of court. Amongst the terms of the agreement
on the said deed was that custody of the minor children was granted
to plaintiff (applicant herein) with reasonable
access to defendant
It was on
the basis of this agreement that applicant approached the court for
relief. In his founding affidavit as stated in paragraphs
6, 7 and 8
respectively, applicant averred that during December 2004, the said
children visited respondent in the Republic of South
Africa and only
Mpheli was returned to his custody by respondent. Kori was kept in
custody of respondent despite the fact that he was supposed to
continue with his schooling here in Lesotho. Applicant went on
show that he had instituted civil proceedings in the Republic of
South Africa to try and regain custody of the said child and
such are still pending.
opposing papers respondent denied being a party to the deed of
settlement and stated that she knew nothing about the forged
signature which she averred, was not hers. She showed that she saw
the deed for the first time on the 30th April 2005 when the
sheriffs caused her to be arrested. She also invited the court to
direct that her former attorney of record . Mr Mafisa,
and enlighten the court with regard to the signature that appears on
the deed and to whom the signatures of the witnesses
belonged. It was also respondent's case that this matter was not
urgent as applicant himself alleged that she did not return
in January yet did nothing since then until in April when he heard of
her sister's death.
listening to both sides, I directed that Mr Mafisa be issued with a
subpoena so that he could come and assist the court with
the signature that appeared on the deed of settlement as being that
of respondent and the other issues that respondent
was unhappy about.
dealing with the legal position, I wish to state that this being a
matrimonial dispute involving the interests of a minor
child, I dealt
with the matter in a somewhat informal manner and kept on inviting
both counsels to assist the court so that the
court could arrive at a
speedy solution regard also being had to the fact that respondent is
currently employed in the Republic
of South Africa, and had to get
back to work.
attempts, Mr Mafisa duly appeared before the court and after I gave
him a brief background of the matter, I asked him
regard to the deed of settlement and the disputed signatures thereon.
In his sworn testimony, Mr Mafisa gave the
court a background to this
matter and without necessarily repeating the whole of his evidence
suffice it to say
conceded that he could not say with certainty that the signature on
the deed of settlement was that of respondent.
on to explain that after lengthy negotiations with Mr Matooane who
was still counsel for applicant in the divorce proceedings,
eventually agreed that the parties would settle the matter out of
court with the terms of agreement as they appear in the
settlement, a copy of which was attached in the court file.
proceeded to inform the court that his client, (respondent herein)
was initially not happy with the term awarding custody of
children to applicant. However, ultimately he, together with the help
of respondent's late sister, convinced her to agree
to this term for
the reason that as he said, respondent might not have been awarded
custody as she was already residing outside
the jurisdiction of this
court and the court would not be able to monitor the minor children's
also Mr Mafisa's testimony that due to the numerous times that
respondent had been shuttling between the two countries, respondent
gave her sister permission to sign the deed of settlement on her
behalf and that she immediately left on the day the matter was
proceeding even before it was finalized.
deed was presented before the court, applicant had duly signed the
deed and a signature was appended on behalf of respondent
as per her
permission. This evidence was not challenged in any way and the Court
thus had no reason not to accept it as it stands.
this background, the court had to determine whether respondent was
indeed in contempt of court as per applicant's claim.
at the case and the circumstances surrounding it as a whole, the
court found that indeed, a deed of settlement which
signed by both parties was made an order of this court on the 11th
the court found that the claim by respondent that she did not sign
the said deed as per both her averments and Mr Mafisa's
evidence is a fact which had not been challenged and the court
therefore accepts it. However, when taking into account
the facts of
the case as put before the court in their totality, the court made
the following findings; That during the divorce
fide negotiations were held between the parries with the result that
an agreement was reached and a deed of settlement
thereof drawn and
signed. Applicant was entitled to assume that applicant as per the
signed deed, was signifying her intention
to be bound by the terms of
the deed. See the case of George v Fairmead (Pty) Ltd 1958 (2) SA 465
and other authorities cited therein.
the court accepts that the other signature was not appended by
respondent in person, it however found that on the unchallenged
evidence, it was signed on her behalf by her late sister. Over and
above that, by her conduct, respondent acquiesced to the terms
said deed of settlement, a fact
reinforced by her failure to bring evidence to challenge the fact
that since December 2001 (the time of the divorce) up
2005 the minor child was in the custody of applicant as per
applicant's averments. In addition, respondent failed
to show what
according to her, the position was during the said period.
being the case, the court could only draw an inference that
applicant's version as supported by Mr Mafisa, respondent's former
attorney of record, is true, to wit, in principle, respondent had
agreed to the terms of the deed of settlement albeit grudgingly.
assuming that as per her version, respondent never saw the deed until
at the time of her arrest, she does not seem to have
taken any steps
after the divorce to find out what the outcome was, especially since
as per Mr Mafisa's evidence, he had occasion
to speak with her on the
phone subsequent to the deed of settlement being made an order of
court, even though the consultation
was only in relation to the
clause concerning division of the joint estate. This can only lead to
the court concluding that it
already in full knowledge of and agreeable to the other terms of the
deed of settlement.
opinion, the rest of the averments which make reference to
applicant's subsequent marriage inter alia, cannot be used as
evidence advancing respondent's case any further. If respondent had
any change of heart subsequent to the court order, she ought
sought legal recourse such as applying for variation of the terms,
instead of acting in the manner that she did which brought
unfortunate incident of her being arrested at the time when she was
supposed to be mourning her late sister's death.
It is for
these reasons that I find that on the facts, applicant has made out
his case on a balance of probabilities and as such,
the court grants
his application as prayed with costs.
is hereby ordered to restore custody of the minor child, Kori to
applicant with immediate effect.
also ordered that the passport which respondent handed in as security
should be returned to her only after she has purged
her contempt by
restoring custody to applicant.
Applicant : Mr Matooane
Respondent: Mrs Kotelo
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