IN THE
LESOTHO COURT OF APPEAL

C OF A
(CIV) NO. 7\92

In the
matter between:

'MASENATE
MOFOKA Appellant

and

TSOTANG
MOFOKA Respondent

HELD AT
MASERU

CORAM:
Mahomed P

Browde J.A

Kotze' J.A.

JUDGMENT

Kotze'
J.A.

In the
High Court Molai J. granted an order to the appellant interdicting
the respondent from assaulting her, interfering with her
life and in
any way threatening her. Despite the matter being uncontested the
learned Judge declined to grant the appellant the
following
additional relief :

1. permitting
   the appellant to institute divorce proceedings before the High Court
   and not in the Subordinate courts seized with
   jurisdiction;

   
   

2

2. awarding
   the appellant custody of the minor children pending finalisation of
   a divorce action to be instituted.

   
   

Before
this Court too there was no appearance by or on behalf of the
respondent. Miss Tau, on behalf of the appellant, abandoned
the
appeal against the refusal to grant an order in terms of (a) and
confined the appeal to the interim custody issue.

It
appears from the record of proceedings in the Court a quo that the
two minor children of the marriage, Lineo and Mpho, are living
in the
respondent's parental home where they are not adequately cared for
and where indeed they are ill- treated. In the absence
of evidence to
gainsay these allegations this Court, as upper guardian, is of the
view that an order in terms of (b) should be
granted.

The
appeal is allowed with costs. The custody of Lineo Mofoka and Mpho
Mofoka is awarded to the appellant pending finalisation of
the
divorce action to be instituted by the appellant against the
respondent.

DATED AT
MASERU THIS 21st DAY OF JANUARY 1993

G.P.C.
KOTZE

JUDGE OF
APPEAL

3

I agree

I.
MAHOMED

PRESIDENT
OF THE COURT OF APPEAL

I agree

J BROWDE

JUDGE OF
APPEAL