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.
M. HLAJOANE
JUDGE
For Applicant: Mr Hlabanyane
For 1st Respondent: Mr Ramoseme