CIV/APN/459/2005
CIV/T/384/2005

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
Matter Between:-

'MATHEKO
NEO LETSIE (NEE LESEE) APPLICANT/DEFENDANT

And

MAKHABANE
RETHABILE LETSIE 1st RESPONDENT/PLAINTIFF

THE
SHERIFF 2nd RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara on the 5^th
January 2006

In this
matter Applicant approached the Court on an urgent basis for
rescission of ancillary prayers sought by Respondent in the
main
action for divorce in CIV/T/384/2005.

Therein
judgment by default was entered in favour of Respondent due to
non-appearance of Applicant to defend the action. The ancillary

prayers included Respondent being awarded custody of the parties'
minor child aged three (3) years old. This particular prayer
did not
contain anything about applicant herein being given reasonable access
to the said child. In this application, Applicant
is not contesting
the divorce itself but is only seeking

1

to be
afforded the opportunity to be heard on the issue of custody of the
parties' minor child.

Although
both parties raised several issues in this application such as that
of service of the summons upon Applicant, as well as
new averments
being raised at the replying stage inter alia, I am not going to
waste time dealing with those issues for the simple
reason that on
the face of it, I am convinced that Applicant ought to be granted the
opportunity to be heard on the issue of custody
as the matter
involves the interests of a minor child.

The
simple fact alone that Applicant herein advanced good cause why she
did not defend the matter suffices that she be afforded
the
opportunity to come and state her case before the Court for the sake
of the said minor child. She averred that after receiving
the
summons, she instructed an attorney, Ms Tlaba to defend the matter
and that the latter has since left that office and there
was no
proper handing over of clients' files hence why the matter was not
timely attended to by the office. Ms Tlaba filed a supporting

affidavit to this effect

2

However,
even if the default had been willful on her part, as the upper
guardian of the interests of minor children and on the strength
of
the case of Napo Thamae & Ano v Agnes Kotelo 7 Ano C of A (CIV)
NO 16/2005 this Court would still be bound to afford Applicant
herein
a fair hearing in order to be able to arrive at an informed decision
when awarding custody that would best serve the interests
of the
child in question.

Although
the default judgment was granted in favour of Respondent including
all the ancillary prayers in the motion Court on the
date in
question, with the wisdom of hindsight, this Court feels that the
interests of justice were not truly served and that before
granting
the ancillary prayers, especially the one regarding the minor child,
the Court should have summoned Applicant to hear
her side of the
story.

It is
only in the event that she had displayed a clear lack of interest
despite having been afforded such an opportunity that this
Court
should have granted custody to Respondent herein in her absence.

3

Therefore
at this stage I do not find it necessary to consider the merits as
these will be canvassed properly by both parties in
motivating their
reasons why they feel they should be awarded custody of the said
minor child.

It is for
the above reasons that the application for rescission of the
ancillary prayers is granted with costs.

N.MAJARA

JUDGE

For
Applicant : Mr Hlalele

For
Respondent : Mr N. E. Putsoane

4