IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/558/2010
In the matter between:
‘MAPULANE PITSO Applicant
And
PITSO PITSO Respondent
JUDGEMENT
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 25th day of March 2011
1. This application was lodged by Mrs Pitso on the 17th March 2011. The Applicant has appeared in person while her ex-husband (Respondent) was represented by Mr Nathane.
2. This matter has a long history because on the papers it appears that the Respondent was at one stage ordered to pay maintenance by the magistrate until 2008 when then Respondent had obtained an order for divorce. It is surprising that Applicant did not know about the divorce because according to her, she was only served with an order. I can only remark that this is not in accordance with the principles of justice and it is discouraged. It is however not an issue now.
3. The Applicant before court today challenges the order that was granted by the court and that was secured the Applicant herself. As per the order Applicant was to pay 1st quarter of the school fees for the child while the Respondent was to pay the rest of the remaining school fees. What is significant is that the order was sought by Applicant through her Counsel Mr Molati. To-day this order is challenged or Mrs Pitso desires to have it varied.
4. Her ground of challenging the order is premised upon the fact that the Respondent has deserted her for a long time and she was, during that time, the only person supporting the children. This in my view does not introduce or suggest new circumstances. This court cannot alter the order which the parties themselves have agreed upon merely because the other party is dissatisfied with its effect. When this order was granted the Applicant was represented. Indeed the papers presented by her have been drawn by a legal practitioner.
5. Certain principles of the law, where a matter is challenged, as the present, have to be observed. It is mainly that for this application to succeed there should have been an error in the order sought or there should be ambiguity a patent error or the order should have been granted as the result of a mistake common to the parties. See High Court Rule 45. Indeed:-
“it is in the interest of justice that there should be related certainly and finding as soon as possible concerning the scope and effect of the order of court. Persons affected by such order should be settled within a reasonable time after the issue thereof to know what the last word has been spoken on the subject. The power created by the Rule 42 (1) is discretionary.”
See First National Bank of South Africa v Van Rensuburg NO and Other 1994 (1) SA 677 (TPD), per Eloff JP at page 681 E-G and cases cited therein. That Rule 42 (1) of the Supreme Court of Republic of South Africa is similar to our Rule 45. Indeed, furthermore while the court has that discretionary power to alter its own orders, such power is to be sparingly exercised. See Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 299 (AD).
6. Unfortunately, as I believed, the Respondent has already made his own private arrangements basing himself on the agreed order. Accordingly the order should stand as it is but the parties have to negotiate as to the best way to solve the problem of paying the school fees of their own child for that term. Why should they not act as mature and responsible parents of that student and their own son?
7. For above reasons this application fails and there is no order as to costs.
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T. E. Monapathi
Judge
For Applicant : In Person
For Respondent : Mr Nathane
