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 5th 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
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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
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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.
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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
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