CIV/T/31/2007

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:

LEBOHANG
KHABO Plaintiff

AND

FUMANE
'MALEBOHANG KHABQ_ Defendant

RULING

Delivered
by the Honourable Mr. Justice T. E. Monapathi On the 25th day of
April, 2007

Present
were Mr Phafane and Mr Mphalane who argued for the parties.

To the
extent that it was common cause it appeared that firstly an order of
divorce had been finalized between the parties. Certain
ancillary
relief was deferred to a later date. In the meantime discussions took
place between the parties. A

2

deed of
settlement was to be drafted and brought to court. Apparently one was
agreed upon. That deed contained 3 items. The matter
was placed on
the roll and placed before Peete J on the 28th February, 2007.

Mr
Mphalane appeared before Peete J. Mr. Phafane was absent. Of the
three (3) items agreed upon two (2) were not mentioned by Mr
Mphalane
for endorsement by the learned Judge. This is the substance of his
complaint because the final order of Peete J incorporated
one (1) not
three (3) of the items agreed upon.

One of
the excluded items was the time frame within which Mr Khabo would pay
an agreed sum of M40,000.00. It had been left open
so that the
parties would agree upon before Peete J. Mr Phafane is unhappy
because a time frame has not been imposed thus exposing
his client to
the undeclared damage of execution.

3

The other
aspect concerned the house awarded to the children of the marriage.
This was not agreed upon in the sense that a caveat/condition
had to
be stipulated that neither Mrs Khabo nor Mr Khabo would have power to
dispose of the house because the house would by agreement
be given to
the children of the marriage by order of court. It was to be in equal
shares.

The third
aspect was the item, concerning the children and the house. It was
that the names of the children of the marriage to whom
the gift of
the house was made were to be spelled out. This would be to avoid any
possible confusion about children other than
those (2) of the
marriage between Plaintiff and Defendant benefiting by mistake.

Mr
Phafane said he spoke to Mr Mphalane that mistake had been made in
the aspect shown above. Consequently the matter had to be
set down
before a Judge to rectify or vary the order made by mistake. Mr
Mphalane was not able to deny that. And that on certain
dates the
matter could and was

4

indeed
set down because he had known of those dates of set down. This was
more so because he preferred to have been engaged elsewhere
other
than at this High Court. That is why his client was able to attend
and said his Counsel was occupied somewhere else. This
was so on last
date on which this matter was set down from which it was postponed to
today.

Mr
Mphalane sought to deny that he could have known of certain dates or
alternatively if a matter was not on the roll he could not
have been
obliged to attend. The attitude is untenable and is partly based on
dishonesty. That is why the question of costs became
relevant. It
becomes even more so where it was more than once that Mr Phafane
attended and the matter was postponed. There are
several of those
wasted attendances. When it was suggested that those costs would be
costs in the cause Mr Mphalane objected. He
contended that the order
about such costs has to be argued separately. So be it.

5

The
variation is as follows: The Accused is given an option of a fine of
Four Thousand Maloti (R4,000). It should however be reduced
in
proportion to the number of months he has already spent in prison.

T.
Monapathi

Judge

For
Appellant : Adv. Molemane

For
Respondent : Adv. Kanono