CIV/T/344 A/2000

IN THE HIGH COURT OF LESOTHO
In the matter
between:-

MPEOANE MOKOKOMALI PLAINTIFF

and
PAUL NTLOTLO MOKOKOMALI DEFENDANT

JUDGMENT

Delivered by the Honourable Mrs Justice Hlajoane Acting
Judge on 5^th Day of October, 2001

In this matter my brother Monapathi J had already
granted divorce, and I only had to deal with ancilliary prayers. The
prayers stand
as follows:-

1. 
   Custody of the two minor children

   
   

2. 
   Maintenance of the two minor children

   
   

3. 
   Division of the joint estate

   
   

When counsel on both side appeared before me on the 2^nd
October, 2001 they informed the Court that numerous pre-trial
conferences had been held with the view of assisting the Court by
identifying
areas of agreements as well as areas of disagreements.

Having lived on this planet for the many years that I
have spent so far, in the Ministry of Justice, within the Judiciary,
I could
not wonder why so many pre-trial conferences had to be held.
I believe people would agree with me that it is not always easy to
sever
or untie what had through a holy ceremony been joined, as
marriage between two parties. It would not only be the position to
those
who would be entrusted with the task of doing the breaking but
even the involved parties themselves.

I am saying all these because parties in this case
managed to come to some sort of settlement in certain areas but could
not make
any compromise when approaching certain areas.

Areas of agreement were recorded as follows:-

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1. 
   Custody of two minor children of the marriage, namely
   Morapeli a boy, born in 1989 and Moliehi, a girl born in 1997, be
   awarded
   to the Plaintiff as their mother. Defendant be allowed
   reasonable access to the children.

   
   

2. 
   Parties agreed that their immovable property situated
   at Morija and Teyateyaneng respectively be awarded to the minor
   children of
   the marriage aforesaid jointly and that they be
   registered as such jointly.

   
   

3. 
   Further agreed that, as regards movable properties,
   that the following items be awarded to the plaintiff:-

   
   

(i) 8 piece Dining room suite

(ii) One 2 door fridge

(iii) Four lace curtains

(iv) Four ordinary Curtains

(v) Two nutristal pots

(vi) Two pointerware pots

(vii) Four stainless steel pots

(viii) Six table spoons

(ix) Six teaspoons

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(x) Two mugs

(xi) Two table clothes

(xii) One size 20 falkirk pot

(xiii) One small falkirk pot

(xiv) Five double blankets

(xv) One Duvet inner and cover

(xvi) Six plates

(xvii) two gas cylinders

(xviii) One gas heater

(xix) One gas stove

The rest of other movable property not mentioned here to
be awarded to the defendant. The three areas of agreement are thus
made an
order of this Court.

There are three areas where parties cannot come to any
agreement, namely:-

1. 
   Parties are unable to agree as to who is to remain in
   the parties' only house in Morija, as the site in Teyateyaneng is
   undeveloped.

   
   

2. 
   No agreement on the amount of maintenance to be paid.

   
   

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(c) The last item relates to a wall unit, a three piece
wall unit, as each one of them wants to keep it. It has not been
disclosed
as to what is so special about that unit. They may both be
having some sentimental attachment to it.

After some lengthy argument it was eventually agreed by
the parties that the wall unit be awarded to the children also, thus
leaving
us with the issue of maintenance and who has to remain in the
house at Morija.

Considering that custody of the minor children has been
awarded to the plaintiff it would only be logical to allow the
plaintiff as
mother of the minor children to remain in the house. The
children are already used to the house and the environment at which
it is
situated. The divorce of the parents should not be allowed to
jeopardize the children in anyway where possible. The High Court
being
an upper guardian of minors has to look at what is in the
minors' best interest. I would therefore allow the plaintiff to
remain
in the house with the children. The defendant on the other
side has asked that he too be allowed to stay in the same house but
only
occupying separate bedroom from the plaintiff's. This would mean
having a common

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furnished to the Court. Under cross examination he had
showed that he used to run a business which unfortunately closed down
some
time ago. It came as a surprise to him and his counsel when
plaintiff produced a cash receipt book which was handed in as an
exhibit.

According to the cash receipt book the business is still
operating and brings in a good income daily. The takings according to
the
receipt book for the 1^st of October, 2001 came up to
something well over two thousand maloti ( M2,000.00).

The law is that both the father and the mother of a
minor child are under a duty to maintain. There is therefore a duty
cast upon
the Court sitting in a matter to determine the issue of
maintenance, to conduct a conscientious enquiry with everyone present
to
arrive at the appropriate and a just figure for the payment of
such maintenance.

As was stated in Makau and Makau CIV/T/360/90 by Kheola
CJ, where the Court found out that the plaintiff as the father, had
lied to
Court by saying that his parents could look after their
children better than his wife, who apparently were too old and
illiterate
to properly care for the children. The defendant has also
lied to the

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Court about his means of income by showing that his
business was no longer operating but was proved wrong when his wife,
the plaintiff,
produced proof of sales from July, 2001 to date.

In the result, the plaintiff succeeds in her claim for
maintenance in the amount of five hundred maloti (M500) per month per
child,
as the defendant has adequate means to support those two minor
children. The offer of three hundred maloti (M300) per child by the
defendant is rejected. Effective date being 31^st October,
2001. The money to be paid to the Registrar of the High Court and
shall be collected by the plaintiff who shall use it for
the
maintenance of the two minor children. Rooney J (as he then was) in
Ramokaka's case 1982-84 LLR152 had this to say "no Court
of Law
should encourage the notion that a child is not only a joy and a
blessing but a source of profit as well".

As regards the wall unit, it has already been agreed
that it is to be awarded to the children because both parties failed
to disclose
as to what was so peculiar or so special about it that
each one of them could feel so attached to it.

On
the question as to who between the two parties is to remain in their
only

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house in Morija, I have already come to the conclusion
that since the plaintiff is the one who by agreement has been awarded
custody
of the two minor children, on the authourity of Mosao v Mosao
CIV/APN/293/97 by my brother Molai J, the interests of the children
would be best served by leaving the children and the plaintiff at the
parties' matrimonial home rather than uproot them to plaintiff's
new
place of residence.

The plaintiff showed that the defendant has not
contributed anything towards legal fees in this case. The plaintiff
is therefore also
awarded costs.

A. M. HLAJOANE ACTING JUDGE

For Plaintiff: Mr Phafane

For
Defendant: Mr Masemene

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