LesothoLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law.
IN THE HIGH COURT OF LESOTHO
In the matter between:- CIV/T/285/2006
L.M. APPLICANT
AND
M.M. DEFENDANT
JUDGMENT
Delivered by the Honourable Madam Justice M. Mahase
On the 14TH February, 2011
Civil Procedure – Husband and wife – Divorce – Parties’ Joint estate – Division of same after final order of divorce granted – custody of the parties’ minor children and maintenance.
A final decree of divorce was granted by my sister; Justice Majara J, on the 13th day of June 2007. Ancilliary prayers/matters pertaining to the division of the parties’ estate and custody of their minor children maintenance, were deferred to a later date.
Ultimately, the matter was placed before this Court for it to deal with the above deferred issues.
When on the 16th February 2010, Counsel for parties herein were before court, the court was informed among others that parties, with the assistance of their counsel were negotiating a settlement. However such an exercise failed and so the Court was asked to exercise its discretion and make a decision on the above issues.
One must mention at this juncture that subsequent to the granting of the final decree of divorce on the 13th day of June 2007, the plaintiff/defendant in reconvention, acquired a residential house in Ladybrand in the Republic of South Africa. This is a matter of common cause. This house does therefore not form part of the parties’ joint matrimonial estate.
Also of common cause is the fact that the parties’ joint matrimonial property or estate comprises of the following:
- Two houses situated adjacent or very close to each other at Naleli in the district of Maseru.
- One of these houses is not bonded and has from time to time been rented out so that income can be generated from it. Such income was shared between the parties herein although not very regularly. This house is in fact the first house which the parties build after their marriage.
The 2nd house is also situated at Naleli but it is bonded. The said house has been bought through the loan which was granted to the parties during the subsistence of their marriage.
The loan installments are, per the argument of both parties, paid out or from the salary of the plaintiff in reconvention.
Plaintiff in reconvention is employed by the Central Bank of Lesotho; while defendant in convention is employed by the Nedbank of Lesotho. The Court has however not been informed what positions each party holds at their respective work places.
Be that as it may, the loan installments payable for the bonded parties’ matrimonial house at Naleli is M1,152.00 per month.
- The other immovable property of the parties’ herein is an undeveloped site situated at Qoaling also in the district of Maseru.
This Court was informed that the parties herein also have some movable properties such as vehicles, furniture etc but each party is prepared by agreement to keep whatever movable property each one of them has in their respective possession presently.
It should also be indicated at this juncture that the defendant in convention has since moved to his house in Ladybrand where he resides. He pays a loan installment of plus, minus R7,000.00 per month towards the purchase price of that house.
Again from a reading of the parties’ statements filed some time ago, it transpired that Mr. M.M. – the defendant in reconvention took away with himself all garden tools, five blankets, a lawn mower and a book shelf. These he took away with him to Ladybrand. The rest of the other movable household property were left with the plaintiff in reconvention at their matrimonial house at Naleli.
A further reading of the parties statements, and an interview with each of them reveals that each of the parties herein are and have been contributing towards the maintenance of both of their two daughters who are aged 19 and 15 years respectively.
Both children are attending school in Bloemfontein in the Republic of South Africa at University of the Free State and St Michaels High School respectively. This Court is satisfied that both parents herein are adequately, though in unequal portions, each doing their duty of maintaining their minor children.
However, since it is the reciprocal duty of each parent to maintain their children, it is imperative that a formal and substantive order in this regard be made. One must mention at this stage that the parties’ said children are both at a boarding school in the R.S.A. From an interview which this Court has had with each of the said children, they are satisfied about the way both of their parents are maintaining them. They also informed this Court that they are at peace with the fact that their parents are now not staying together. They each told the Court that much as they both love their parents, their parents’ constant or persistent fights were affecting them negatively.
This Court is mindful of the fact that the needs of the parties’ children are well catered for by both parents. However, and in order for this Court to reach a well thought out, judicial decisions it orders parties herein to discover under oath their assets (movable and immovable) and their essential liabilities regarding their formal matrimonial estate for this Court to make a well reasoned decision.
The above should of course include statement reflecting the school requirements in the form of school fees and boarding fees from the respective schools where their children are presently schooling.
Such an exercise should be carried out and completed and later presented before this Court on or before end of business day on the 25th August 2010. Ancialliary matters are therefore deferred until when the exercise is done.
The parties must work together with their counsel. They are also warned that in their endeavour, they should bear in mind that the Central Bank, which has loaned money to the parties for building of their second matrimonial home will have to be included as it is an interested third party in so far as the parties joined estate in concerned.
Parties are also warned that should they fail to have the above Order of Court carried out, this Court is enjoined by law to order for a division of their matrimonial estate/property.
The parties’ said discovery of their assets and liabilities regarding their joined matrimonial property should be done under oath.
M. Mahase (Mrs.)
Judge
For plaintiff - Mr. Mokaloba
For defendant - Ms N.G. Thabane
