C of A (Civ) 16 of 1981
IN THE LESOTHO COURT OF APPEAL In the matter
Held at Maseru
Schutz P. Aaron J.A. Plewman J.A.
The issue that was argued in this appeal was whether the
manner in which Kheola'J gave effect to an order for forfeiture of
which order he had given consequent upon divorcing the
parties who had been married in community of property, was correct.
was made against the appellant (the husband).
What Kheola J did is reflected in the following passage
in his judgment:
/"In the ...
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" In the present case the joint estate consists of
a five-roomed house with furniture and three motor vehicles. I have
the value of the joint estate so as to define the
portion which defendant will forfeit. However, the property has been
in in such detail that I am of the opinion that I can
define what portion the defendant shall forfeit. I think the
forfeit the house, all furniture and the motor vehicle
which the plaintiff bought with her own money."
The learned judge a quo does not appear to have made any
express findings on credibility although there were disputes as to
for what, and as to the manner in which the funds of the
parties were or were not commingled.
I would point out that it can be misleading to speak of
"his" or "her" money in a marriage in community,
by operation of law a universal partnership is constituted.
However that may be, the notion of "his" or "her"money
can be important in determining what each party contributed to the
partnership, a matter that is relevant to the implementation of
In Gates v Gates 1940 NPD 361 at 364-5 Selke J. said:
/"In order ,.,
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" In order to decide, therefore, in any given case
whether the decree of forfeiture operates and, if so, how, it is
to know in the first place the value of the joint estate as
it exists at the date of the order for divorce. It is then necessary
to ascertain the existing value to the joint estate of the
contributions respectively made by, or on behalf of each of the
after such proof has been given, it appears
that the existing value of the defendant's
contributions is equal, or greater
than, that of the plaintiff's then
there is no forfeiture in fact, and
the existing estate is divided between
them in equal shares, exactly as if
no forfeiture had been decreed. If,
on the other hand, the value of the
contributions proved to have been
made by, or on behalf of the plaintiff,
exceeds that proved to have been made
by, or on behalf of the defendant, then
the forfeiture consists of half of
difference between the values thus
/Selke J. ...
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Selke J. proceeded (at 365) to deal with the case before
him, where at the time of the divorce the value of the joint estate
less than the sum of the value of the contributions. Such
a situation can arise because of the depreciation of assets, or
of the expenses incurred by the spouses. In such a case,
Selke J held, the existing estate was to be divided in the manner
above, according to . contributions. He then raised the
question what would happen, if, because of appreciation of assets,
of the estate was worth more than the sum of the values of
the contributions. He suggested that the value of the appreciation
be divided equally. I can see no logic in this view and adopt
the view of Hahlo The SA Law of Husband and Wife. 4 ed 436-7 that
such a case also the whole estate remaining should be divided in
accordance with the respective contributions of the parties,
that the innocent party's contribution was greater..
Applying the principles set out in Gates and Hahlo, it
is clear that only in the simplest of cases could the approach leave
three valuations envisaged in Gates' case, and, apparently
assuming that the respondent's (the wife's) contribution was greater,
allows her the assets bought with "her" money.
The very simple example is this: the parties marry on
day one. The wife (the innocent party to be)
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contributes a new Rolls Royce. The husband contributes
an old Beetle. That is all. On day two they are divorced and a
is decreed. So bad has been the one day of marriage
that the spouses have incurred no expenses. Nor have the two cars had
to appreciate or depreciate. In such a case one can see at
once that the wife contributed a greater share, and it is clear that
the forfeiture rule will be served by awarding her the Rolls and him
But the moment the example is complicated, as must occur
after the passage of some years, such a simple solution is not
Some assets will have depreciated, some may have
appreciated, expenses will have been incurred, and so on. The ups and
downs of the
joint estate and the reasons therefor are usually
irrelevant. What matters is the value of what is left at the time of
Any attempt to trace "his" or "her"
assets as emanating from "his" or "her"
runs counter to the notion of community. For example, if
the wife receives a salary she receives it on behalf of the joint
and it falls into that estate at once by virture of operation
of law. It does not matter what bank account she pays it into, or
whether she pays it into a bank account at all. The same goes for the
It follows that order (a) made by the trial court
be set aside.
/It would ...
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It would be helpful and would reduce costs if the
parties obtained or established the three valuations already referred
to, and, if
possible, agreed on some or all of them, before coming
before the trial Court again,to which Court this matter will have to
At the end of the hearing of the appeal Mr. Pheko, for
the successful appellant, fairly conceded that each party should pay
her own costs of appeal.
In the result the appeal succeeds and order (a) made by
the trial court is set aside. Each party is to pay his or her own
The matter is remitted back to the trial court where the
learned judge is to:
(a) Determine the values of:
(i) The joint estate at the date of the divorce;
(ii) The plaintiff's contributions to
joint estate stante matrimonio;
(iii) The defendant's contributions to
(b) In the event of the plaintiff's contributionto
the joint estate amounting to less thanhalf of the same, to award
half of the sameto her;
(c) In the event of the plaintiff's contributionto
the joint estate amounting to more
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than half of the same, to distribute the same in
proportion to the contributions of the parties.
(d) In giving effect to (b) and (c) above the learned
judge is to utilize such procedures and methods of distribution as
may be fitting
and such as the law allows.
(Signed) W. P. Schutz
(Signed) S. Aaron
(Signed) C. Pieman
at Maseru this 26th day of January 1990.
For the Appellant: Mr. M. Matsau For the Respondent:Mr.
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