CIV/A/19/87

IN T H E
H I G H COURT OF LESOTHO

In the
appeal between:

TSEHLA C.
MATJELOANE Appellant

SELEMENG
TSOSANE Respondent

JUDGMENT

Before
the Hon. Mr. Justice Sir Peter Allen on the 11th day of August, 1988

This is
an appeal against the judgment of a second class Magistrate at Maseru
on 30 May 1986 in a claim brought by the respondent/plaintiff
for
maintenance of her son Tsepo. Tsosane born out of wedlock on 21 June
1977. It was alleged that the appellant had never maintained
the
child up to that date.

The
appellant/defendant admitted that he was the father of the child and
he appealed against the order requiring him to pay M.80
per month to
the respondent for maintenance. of the child. He had claimed that he
was a married man with other children to maintain
and so unable to
pay the original amount of M.300 p.m. claimed. He offered instead
M.50 per month, which he repeated in this Court.

The
respondent testified that she was employed as a bank clerk by
Barclays Bank, Maseru at M.517 per month and she described her

various financial commitments and outlay

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each
month. She wished to send the boy to a better primary "school
than the one he was then attending in order to give him
a better
education. She said that in the course of her work at the bank she
dealt with the appellant's accounts and that he was
then receiving an
income of between M.5000-7000 per month. He was employed as a sales
manager by Caltex Co. and he also had various
properties and business
interests, including flats for renting and a shop and two offices. He
had four children in his family of
whom two were at University. He
had provided his wife with a Mercedes Benz saloon car and his eldest
student son with a Mazda saloon
car. He was paying. M.450 p.m. rent
for the flat in which he lived.

The
appellant did not dispute most of these facts except to. claim that
he was in fact living in debt because of various loans that
he had
obtained when purchasing the pro­perties mentioned. According to
him the debts absorbed the whole of his income apart
from what was
used for the main­tenance of his family and their various
university and school fees and expenses.

The
magistrate accepted the respondent/plaintiff's evidence of the
appellant's income and standard of living and she rightly held
that
both of the parents had a joint duty to contribute to the maintenance
of their illegitimate child. The appellant's submission
was that he
agreed that he should help to maintain the child, but that this
included only food, shelter and medical care and that
he was not
required by law to provide for the child's education as it was not a
necessity.

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This
Court was referred to no authority for this submission which I found
to be novel. To say that education cannot be regarded
as a necessity
or, conversely, to regard it as merely an unnecessary luxury is not
an idea that I find acceptable.Mr Ramodibedi
for the respondent
referred to Spiro's' Law of Parent and Child (3rd edition) p.371 in
which the author writes :-

"At the present time maintenance does not only embrace the
necessities of life, such as food, clothing and shelter, but also

extends to education and care in sickness, and the child must be
provided with all those things which are required for its proper

upbringing" (and a number of sup­porting cases are cited in
the footnotes) .

I
entirely agree with this view and it seems to me that only a most
irresponsible father would feel otherwise. Furthermore, in the
lower
court the appellant objected strongly that he had not been consulted
by the respondent about which school the boy should
attend. It seems
to me quite extraordinary that the appellant on the one hand
ex­pected to be consulted about the boy's education
while, on the
other hand, he saw no reason why he should contribute to that
education. He cannot have it both. ways. He is only
entitled to be
consulted in this regard if he has also con­tributed to the boy's
education. He must know this and I do not
understand why he has
pursued this matter up to this Court.

The
amount involved is very little. In fact, in my opinion the
magistrate's award was too low, especially taking into account
present
day inflation and the appellant's

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standard
of living. If I had been asked to do so I would have considered
increasing the amount of maintenance to be paid by the
appellant,
rather than decreasing it. This appeal was an unnecessary wasting of
this Court's time. I am satisfied that the appellant
is well able to
pay the amount ordered.

The trial
magistrate ordered him to pay M.80 monthly until the boy reaches a
self-supporting age. According to the appellant he
has in fact paid
only M.50 p.m. into court since that order was made on 30 June 1986.

This
appeal is dismissed with costs to the respondent. the The appellant
must now pay the balance of the full amount to date and
continue to
pay M.80 p.m. from now onwards as ordered.

P. A. P.
J. ALLEN

JUDGE

11 August
19 88

Dr.
Tsotsi for appellant

Mr
Ramodibedi for respondent