CIV/APN/79/2007
CIV/T/134/2005

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

'MAKAMOHELO
CHABANA (Born Ramotang) Applicant

and

TANKISO
CHABANA 1st Respondent

STAR LION
FUNERAL SERVICES (MKM) 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 11th February. 2008.

This is
an Application for a Garnishee Order in respect of the maintenance
order that had been granted by this Court on the 1st
March 2006. The
order was given in some divorce proceedings against the Respondent in
CIV/T/134/05. The Applicant is asking this
Court to deduct the sum of
M600.00 from the salary of the 1st Respondent paid

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by the
2nd Respondent monthly and pay that money through the Clerk of Court.

It is the
Applicant's case that the 1st Respondent has not been paying the
maintenance amount since the order of Court awarding
the amount of
maintenance was given.

A decree
of divorce was granted by this Court in CIV/T/134/05. In the divorce
proceedings the 1st Respondent was ordered to maintain
the minor
children of the marriage in the amount of M600.00 per month. After
the granting of the divorce order the Applicant and
the 1st
Respondent signed a Deed of Settlement as regards ancillary prayed
which had been deferred to a late date.

The Deed
of Settlement related to amongst other things, the custody of the
minor children of the marriage and maintenance. The amount
of M600.00
was a result of that agreement. Both parties had through their
counsel signed that Deed of Settlement and for the Applicant,
was
signed on 15th February 2006 and for the 1st Respondent, the 28th
February, 2006.

Though
the Applicant's Counsel had shown in his heads of argument that the
Deed of Settlement was signed prior to the granting of
the

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Divorce
Order, my reading of that settlement reflects that it was signed
after. It reads, 'whereas divorce has already been granted
on the
grounds of Defendant's constructive desertion'. Not unless the
signing of the settlement was done in anticipation of the
Divorce
Order as the signing was in February 2006 and divorce said to have
been on 1st March 2006. But even there I don't understand
the
Applicant's Counsel as the order of divorce shows that it was granted
on the 15th June, 2005 and ancillary prayers deferred
to a later
date. But because it has not been disputed that divorce was in fact
granted we could safely leave it at that.

The 1st
Respondent as an employee of the 2nd Respondent has raised some
points in limine in his answering affidavit.

Non compliance with Rule 8 (7).

Material dispute of fact.

Non compliance with the requirements for a Garnishee

Application.

Non
Compliance with Rule 8 (7)

The 1st
Respondent is saying that the Applicant has failed to comply with the
High Court Rules on the form and content of the Motion
Proceedings.
This point was not pursued any further and was abandoned by the 1st
Respondent.

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Material
dispute of fact The 1st Respondent is saying that the Applicant ought
to have forseen the likelihood of a material dispute
of fact
concerning whether or not the maintenance amount had been paid or not
and as such ought to have proceeded by way of summons
as opposed to
Motion Proceedings. He has cited the case of Room Hire v Jeppe Street
Mansions 1949 (3) S.A 1155.

The
Applicant on the other hand is denying the existence of any dispute
of fact. The parties have signed a Deed of Settlement which
includes
inter alia the maintenance order in the amount of M600 per month.
That the 1st Respondent alleges to have paid a lump
sum of Ml600 in
November, 2006 covering the months of November, December, January and
part of February.

We have
seen that the order for maintenance was given according to the Deed
of Settlement and the order of Court to that effect
was made on the
2nd March 2006. The 1st Respondent is talking about monies paid
covering November and December of 2006 and January
and part of
February 2007. He is not saying anything about months from March to
October, 2006.

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Even if
we were for a moment going to accept the payment of Ml600 in
November, 2006, the amount could not be said to have covered
the
months of November, December, January and part of February 2007. The
amount could have only been for two and half months. Worse
still the
1st Respondent was not able to produce any proof of such payment, how
then could he be believed in what he said? The
fact of the matter is
that, the reasonable inference to be drawn would be, he has not been
paying any maintenance ever since the
order was granted in March,
2006. He is therefore in arrears.

Non
Compliance with requirements for a Garnishee Application

The 1st
Respondent is saying here that the present Application was instituted
even before he could be held to have been in default
and as such it
was prematurely instituted. According to him this Application ought
to have been instituted upon his failure to
satisfy the order.

But
according to the Applicant there is nothing in the Rules that
stipulates the period within which Garnishee Proceedings may be

instituted. He referred to Rule 46 (12) (a) of the High Court Rules
1980. In terms of the provisions of that Rule, the 2nd Respondent

would be the Garnishee. And if the Court in terms of Rule 46 (12) (h)
(i) grants Prayer (i) of the Notice of Motion then the 1st

Respondent's salary would be affected in that an amount of M600.00
would have to

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be
deducted from 1st Respondent's salary to recover the amount of
maintenance.

I would
therefore agree with the Applicant in saying that the Rules of Court
have not stipulated the period within which Garnishee
proceedings may
be instituted upon failure by the debtor to satisfy the claim after
the order has been granted. Garnishee proceedings
become relevant
once there is an obligation to pay from either a salary or any
emolument and the person supposed to pay is employed
but fails to
fulfil the obligation to pay.

Both
points in limine are without substance and are therefore dismissed.

Coming
now to the merits of this Application. The main prayer here is for
asking the 2nd Respondent as Garnishee to deduct the sum
of M600
monthly from the 1st Respondent's salary in satisfaction of the order
for maintenance.

I have
already shown that the Applicant and the 1st Respondent were legally,
married but were subsequently legally divorced. There
was a
maintenance order that was given in the amount of M600.00 per month.
All that is common cause.

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It has
been the Applicant's case that the 1st Respondent has defaulted in
paying the maintenance since the day the order for maintenance
was
made. The 1st Respondent on the other hand contended that he has paid
a lump sum of money to the tune of M1600 covering some
three months
and half.

I have
already shown that my arithmetic told me that M1600 at M600 a month
could not have covered that period but two and a half
months.
Besides, even assuming he had paid that much, looking at the time
that the order for maintenance was given, the 1st Respondent
was
already in arrears when he so paid that lump sum of money.

Again,
the 1st Respondent as already said, could not furnish any proof of
such payment. If he alleges payment he has to proof that
he in fact
did pay. In the absence of such proof of payment it would be hard to
believe his story of having paid the amount.

The 1st
Respondent has not denied that he is still employed at the 2nd
Respondent's business. He has attached his salary pay slip
for
January 2007 showing a cross salary of M1600.00, and a net pay of
M922.03. The deductions being for his Pension, Burial, Bursary,

Medical Scheme, Cows and Grocery and what is termed LLD plan. As
could be seen from 1st Respondent's pay slip attached to his
answering affidavit,

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the
deductions from his salary would only benefit him and not the minor
children.

For the
1st Respondent to be saying that the M600.00 he has to pay as
maintenance is beyond his means, that's not the correct approach
to
the problem. He has to make a formal application requesting for a
variation of the order and giving valid reasons as to why
there has
to be a variation to a smaller amount. He has not done that, so that
the order for maintenance that was granted after
the divorce was
granted would still stand.

For the
reasons given the Application is granted as prayed with costs. The
order to be served on the 2nd Respondent so that he is
made aware of
it.

1. M.
   HLAJOANE

   
   

JUDGE

For
Applicant: Mr Hlabanyane

For 1st
Respondent: Mr Ramoseme