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
Custody of the minor child
Maintenance of the child of the marriage at the rate of two hundred maloti (200.00) per month.
Forfeiture of the benefits arising out of the marriage.
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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