CIV/APN/209/85

IN THE
HIGH COURT OF LESOTHO

In the
application of :

CONSTANCE
KAHIMBAARA Applicant

v

JOHN
KAHIMBAARA Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Chief Justice Mr. Justice T.S. Cotran on the 12th day of
November 1985

This the
extended return date of a rule nisi granted ex-parte to the applicant
wife against the respondent husband by Kheola J on
the 3rd September
in which the applicant wife sought summary relief for alleged
matrimonial offences (not involving adultery) against
her respondent
husband.

He was
ordered to show cause why he shall not be directed

1. "to
   desist from assaulting or anyway interferring with Applicant;

   
   

2. to
   release the minor children born of the marriage to the custody of
   Applicant;

   
   

3. to
   grant Applicant access to the minor children born of the marriage
   pending the finalization of this Application;

   
   

4. to
   pay a sum of M150-00 per child per month towards maintenance;

   
   

5. to
   pay a sum of M150-00 per month towards Applicant's maintenance;

   
   

6. to
   pay the costs of this Application."

   
   

2

The
application was resisted and the allegations very

strenuously
disputed, On the 16th October 1985 I dismissed the application with
costs and said reasons will be filed later. These
now follow.

It is
common cause that the applicant and respondent were married by civil
rites on the 4th March 1978 at Nairobi, Kenya. The respondent
husband
is Ugandan and on the face of things domiciled there. It follows that
the applicant wife is also domiciled in Uganda. The
parties came to
Lesotho on the 9th November 1963 and have been living here since that
date. There are two minor children of the
marriage, Ezra and Guma
born on 23rd June 1978 and 28th August 1982 respectively. The
applicant is a teacher at Mabathoana High
School and the respondent
is a Senior Lecturer at the National University of Lesotho at Roma.
The parties lived and cohabited at
Roma and both children were
schooling there the older, I understood during argument, at a
University run primary school and the
youngest at a kindergarten.
There is no shortage of money in the family but trouble started in
July 1985 when the applicant left
the matrimonial home and came to
live in Maseru.

There are
allegations by the applicant wife and counter allegations by the
respondent. It is not possible to resolve these disputes
without
hearing viva voce evidence but, if viva voce evidence is to be heard,
it cannot be done on the papers of this application.

Neither
of the parties claim that they have acquired a domicile of choice in
Lesotho. It follows that the only way by which the
Court can be
seised of jurisdiction is for the

applicant
to air her matrimonial complaints by action for Judicial Separation
which is competent. See Hahlo Husband and Wife fourth

3

Edition
p.556 and 557 and cases cited in footnotes. The applicant has not
sought Judicial Separation and since the application is
a bare one,
i.e. not pending action, it will have the effect of the Court
granting final mandatory interdicts curtailing

1. the
   husband's marital powers

   
   

2. depriving
   him of custody of his children and

   
   

3. ordering
   him to pay maintenance to her and the children.

   
   

That, I
am afraid, is not possible.

The High
Court can on some occasions interfere where a wife has been allegedly
assaulted by her husband or vice versa. The proper
way is to go and
complain to the police. If the injury is serious my experience is
that the police invariably take action but where
it is not they refer
the parties to a social officer for reconciliation. There are many
instances where the High Court did grant
an order to one party to
desist from assault­ing or covertly or overtly approaching or
intimidating the other party. This happened
in cases when the
inherent powers of the courts to commit for contempt is the only
deterrent remedy left. The Court, as upper guardian
of all minors,
can also interfere to ensure the minors' interests if they are in
danger of physical harm or if their property is
at risk of being
dissipated. The averments in the affidavits do not show that that
stage has been reached in either of the examples
I have given.

As I
intimated earlier, the application has been dismissed with costs.

CHIEF
JUSTICE

12th
November 1985

For
Applicant : Mr. Pheko

For
Respondent : Mr. Maqutu