CIV/T/480/97

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MARY
LEKHAFOLA PLAINTIFF

And

KHETHANG
SAMUEL

LEKHAFOLA
DEFENDANT

Appearances

Mr.
Ntlhoki for the Plaintiff

Mr.
Nathane for the Defendant

JUDGMENT

DELIVERED
BY THE HONOURABLE MRS. JUSTICE KJ. GUNI ON THE 5th SEPTEMBER, 2006

This is
the matter that has been pending for a very long time. The plaintiff
sued the defendant for divorce and other ancillary
prayers in
October, 1997. The degree for divorce was granted in December 1997
and the ancillary prayers deferred for hearing at
the later date. On
the date of hearing of the ancillary prayers defendant did not
appear. The plaintiff was led in evidence in
the absence of the
defendant. Therefore, without any contest, the ancillary prayers were
granted in April 1999.

In May
1999 the defendant file ex-parte an application for the rescission of
that default judgment. The rule nisi was issued and
served upon the
plaintiff who consented to the granting of the application for
rescission of the judgment. The defendant was granted
leave to defend
the action on the ancillary prayers.

This
court had an opportunity to hear the evidence of both the plaintiff
and the defendant as regards the ancillary prayers. In
her ancillary
prayers the plaintiff seeks

1. Custody
   of the minor child

   
   

2. Maintenance
   of the child of the marriage at the rate of two hundred maloti
   (200.00) per month.

   
   

3. Forfeiture
   of the benefits arising out of the marriage.

   
   

4. Costs
   of suit.

   
   

CUSTODY

According
to the facts of this case, the father - defendant herein left the
matrimonial home. Plaintiff and the minor child were
left together in
that house. Defendant by his own action of deserting from the
matrimonial home left the minor child in the care
and custody of its
mother - the plaintiff. The plaintiff and this child have lived for
those many years alone without the defendant.

2

The minor
child has been in the custody of its mother alone for these many
years. The defendant has proved himself as a person who
cares only
for himself. He claims that the plaintiff made their living
intolerable. But he never sought any help to rescue his
daughter from
the alleged intolerable situation. Perhaps he regarded this situation
as intolerable only for himself. If so he still
remains a selfish
person. How can he be trusted to take care of this minor child if he
is granted her custody? In his evidence
he counted one instance when
he gave the child some money. This particular child with such special
needs cannot be entrusted in
the custody of the person who showed no
constant care. The defendant does not talk of the special needs of
this child. He does
not show the court how he will provide for them.
The mother has provided her daughter with love and care all of her
life. She had
testified before court about the minor child's special
needs. She understands and appreciates the need to take care for this
child.
The defendant has no appreciation for this child's special
needs. This child's handicap results in her being a perpetual minor.

Having abandoned and neglected the minor child for so many years the
defendant has proved to be totally unreliable person for the
care and
custody of that minor child.

The
custody of a girl child, unless her mother has been found lacking in
loving care, and reliability to continue providing the
same in the
future should always be granted to the mother.

The
circumstances of this case, such as the unceremonious departure by
the defendant from the matrimonial home, put the minor child
in the
custody of its mother - the plaintiff herein. Therefore there must be
compelling evidence to warrant the disturbance of
the state quo.
There is no such evidence in this case

This file
has other interlocutory matters which were decided, prior to
proceeding on these ancillary prayers. The defendant had
been found
to abuse this child physically and mentally when he had access to the
minor child. This fact by itself warrants the
removal of the child
from such a person. The mother moved the court to protect her by
obtaining a restraining order against the
father - defendant from
showing her phonographic videos and abusing her. This court should
not place this child in danger by awaiting
the custody to the father
in the face of such previous behaviour which is likely to expose the
said child to danger.

Having
abandoned the child for such a long time, he is a stranger except for
the claim that he is the father. He had enstranged
himself from his
family. The blood relationship by itself is not enough in the light
of likelihood to subject the child to abuse.

4

Where the
minor child has continuously lived with one of the parents, the
custody of the minor child must not be disturbed unless
there are
compelling circumstances. This child must remain where it was all
these years. That is with its mother. Therefore the
custody of the
minor child is awarded to the mother.

MAINTENANCE

In our
law, the meaning and scope of maintenance include the provision of
shelter, food, clothing, medical care and education. EX
PARTE PIENAAR
1964 (1) SA 600 (T) at 606. The scope of maintenance is always
determined according to the standard of living of
the parties and
particularly according to the means of the person who is in law
obliged to provide the support. In our present
case, there is no plea
or evidence of lack or insufficiency of the means to support those
who need such support.

The duty
to support the minor child of the marriage is not disputed in our
present case. Both parties agree that as parents they
have a duty to
support their child. They both claim that they fulfill their
obligation to their child. The minor child in this
case is in the
custody of her mother. This child is challenged in many respects. She
is deaf. She does not speak.

5

Therefore
a person facing so many challenges, has special needs. She needs
special care. Her emancipation from minority is not likely
to be
terminated by afluxion of the time.

Prior to
1997, before the law suit for divorce was filed, the parties were
already living separately. Plaintiff was left with this
minor child
by the defendant who paid them infrequent visits to harass and abuse
them until he was stopped by the restraining order.
The neglect to
maintain the minor and its mother is a continuous process which had
commenced those many years ago.

Defendant
paid the child a visit at school once in three years or so and gave
her some three hundred rands. He argues that that
is the evidence
that he still maintains the said child. The educational needs of this
minor child far exceeds three hundred rands
per month. The study
permit alone is over one thousand rands. The school fees per term is
about two thousand rands.

Three
hundred rands once in the child's lifetime of her education is a
ridiculous drop in the ocean - not worth talking about. Therefore
the
plaintiff, according to the evidence before this court has raised the
child as a single parent. The father has been shown to
have totally
neglected his duty as the parent to maintain this child.

6

By his
own evidence defendant made insignificant drips and drops of gifts to
the child which as time went on dwindled into zero.

Apart
from the normal everyday needs of every dependant e.g. shelter, food,
clothing and medical care, this child has special needs
because of
her extraordinary challenges to hear and speak. Her mother who as a
custodian parent sees to her everyday needs must
be assisted to some
degree by the financial contribution from the father - defendant
herein. The plaintiff therefore succeeds in
her prayer for
maintenance of the minor. The defendant is lucky to have married a
strong and hard working wife. She asks for nothing
for herself. In
our law there is a reciprocal duty of support between spouses.

The three
recognized pre-requisites for duty of support must be present in
every case where such support is being sought. PROPHET
V PROPHET
1948(2) SA 325, BARLOW V BARLOW 1920 OPD 73- Defendant has, according
to him adequate means to support his family. He
seems, definitely to
lack only the will to do so. His ex-wife has supported herself over
the years. She asks for no support for
herself. The amount of
maintenance claimed for the child who has so many challenges, is also
meagre. The defendant does not even
attempt to quarrel with such
amount.

7

He has
told the court that he will be able to maintain the child when he
sought the said child's custody. He does not show this
court how he
propose to do that after so many years of neglect. Therefore
defendant is in a position according to his own means
to pay the
amount claimed and even more as the child's needs demand. Her medical
needs and education alone by far exceeds the small
amount which is
claimed. The plaintiff must succeed in her claim for maintenance of
this minor because she has placed before this
court the evidence -
establishing this child's needs for such maintenance.. The defendant
must pay the amount claimed.

FORFEITURE
OF THE BENEFITS OF THE MARRIAGE

The
parties have a matrimonial home out of which the defendant walked
away. He obtained the site on which the plaintiff built their
home.
He has a design for the house. According to him his house plan is
better than that which the plaintiff erected on the site.
He claims
he has the window frames for the Intended house still remain unused.
He bought some items of bedding, some wall pictures
and a few items
of crockery and cutlery for the joint estate. These allegations by
the defendant, are admitted by the plaintiff.
Plaintiff has been
found to be a straight-forward witness. She was not hesitant to admit
good things which defendant did for their
family.

8

When the
counsel for the defendant put it to her that the defendant bought
some fencing poles which were used to fence their home,
she admitted
and went further to show the court exactly what and how many of those
poles did the defendant buy. At the time the
dispute between the
parties, went on, the plaintiff made an offer to the defendant to
collect all those items which he bought.
The defendant has refused
the offer. He claims all the benefits of the marriage instead. The
plaintiff has taken from the defendant
the total responsibility to
maintain and support the family. The defendant feels happy and
comfortable in his irresponsible ways.
He wants the continuation of
the status quo

The
plaintiff has proved before this court that she built and continues
to improve their home. Plaintiff is the one who provided
the shelter
to the family. The defendant wants that shelter for his exclusive
use. "Ha e safe a fa monakalali oa keboleloa!
He now wants to
crawl like a snake into the mouse's hole. Justice and fairness cannot
allow the continuation of the status quo,
where the party that has
failed in his or her responsibilities persists in enjoying unfairly
the undeserved benefits of the marriage.

9

This
defendant did not put any evidence before this court to show what he
did to support his claim that the plaintiff should be
the one who
forfeits the benefits of the marriage. The house in question has been
the plaintiffs and the minor child's own home
since the beginning of
their lives as the family. Plaintiff produced evidence which shows
the court that she built the said house.
There is further evidence
which shows this court that she continues to improve their house
without any assistance from the defendant.
Defendant has destroyed
the family by neglecting his duty to maintain and support his family.
His claims are the continuation of
the destruction of that family. He
therefore must fail in this action, as he has already failed in
actual life to support his family.
He must forfeit all the benefits
of that marriage, as he has already out of his own freewill, turned
his back against his family
so many years ago when he walked out of
the matrimonial home.

The
defendant's contribution in the building of the joint estate is
dwarfed by the huge amount contributed by the plaintiff. Before
this
court the plaintiff proved with receipts all what she bought for the
joint estate. Defendant was not able to place before
court any
receipts of any items which he claims that he bought. The scale of
proof in civil matters is on the balance of probabilities.

10

Having
proved that she purchase more than ninety (90%) percent of the
building materials, the plaintiff has established beyond doubt
that
she built their matrimonial home herself. It is the plaintiff who has
provided the shelter for the family. The defendant claims
he has a
better plan which he intended to put up but has failed to do so. That
claim on its own cannot entitle him to deprive the
plaintiff with
what she built for the family. She and their child must be left in
peace in that home which is in fact provided
by the plaintiff. The
Defendant forfeits all the benefits of the marriage.

COSTS

The
plaintiff is the successful party in all respects in this matter. She
is entitled to her costs. Therefore the defendant is ordered
to pay
the costs for this suit.

K. J.
Guni

JUDGE

11