IN THE HIGH COURT OF LESOTHO

HELD AT MASERU

CIV/T/653/2011
In the matter between:-

KHOBOSO ‘MATSIKANE KHALI PLAINTIFF

AND

MAROTHOLI KHALI DEFENDANT

JUDGMENT

Coram : Hon. Mahase J.

Date of hearing : Various dates
Date of Judgment : 16th March 2015

Summary

Civil Procedure – Husband and wife – Judicial separation – Counter claim –

Divorce sort on grounds of adultery – Maintenance pendite lite – Whether parties
have each made out proper cases in support of their reliefs.

ANNOTATIONS

CITED CASES:
- Jodaiken v. Jodaiken 1978(1) S.A 784
- Belir v. Minister of Health 1961(1) S.A. 629 (SR)
- Burrows v. Burrows 1963 (1) S.A 210 (and cases therein cited)
- S. v. Pitsi 1964 (4) S.A. 583
- Fletcher v. Fletcher 1948(1) S.A. 130 (A) 137
- Litseko v. Litseko 1979 (2) L.L.R 370

STATUTES:
- Deserted Wives and Children Proclamation of 1959 (as amende 1971 and
1977)

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BOOKS
- The South African Law of Husband and Wife – H.R. Hahlo 4th and 5th
Editions.
- Contemporary Family Law, W.C.M. Maqutu 245
- Family Law Through Cases in Lesotho, M. Mamashela page 294

[1] Parties herein were married by civil rites and in community of

property on the 7th April 2007. Two children, who are both girls were
born out of the parties’ marriage. The parties’ marriage was a happy
one from inception. They however started to experience problems
around the year 2011.

[2] Subsequently, the plaintiff then instituted proceedings for judicial

separation. She had also asked the court to award to her custody of
their minor children; as well as for an order to the effect that the
defendant must deliver to her leases of their properties situated both in
Maseru and Qacha’s Nek, and that he also be ordered to return to her
a motor vehicle of H0300.

[3] She has also sort an order of court directing the defendant to pay
rental for her, maintenance in the total sum of M27,000.00 (twenty
seven thousand maloti). This sum of money is inclusive of plaintiff’s
and their children’s maintenance.

[4] The defendant later filed a counter claim for divorce on the grounds of
plaintiff’s adultery. The proceedings indicated above were by consent
argued or dealt with holistically.

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[5] The defendant contents that the plaintiff has not defendant the counter
claim and has therefore asked this court to grant him a decree of final
divorce. The plaintiff, denies this fact and alleges that she has
opposed the counterclaim.

[6] Be that as it may, each party blames the other for the disintegration of
their marriage. The plaintiff’s case is that the defendant had two
adulterous relationship with two ladies; namely Ntsoaki Leisanyane
and Tlaleng Mosoeu with who he has fathered a two children, born of
each lady.

[7] Put conversely, it is the plaintiff’s case that the defendant maintains
the said two relationships concurrently. She alleges that she has not
condoned the defendant’s adulterous.

[8] There is a dispute over the above issues because the defendant denies
at least the existence of one of the said relationships. The plaintiff on
the other hand, alleges that the defendant has admitted this adultery in
his plea; at paragraph 2, page 7.

[9] The defendant testified that the plaintiff has an adulterous

relationships with one Thana Moseme. The plaintiff denies this.

[10] There are facts which are of common cause between the parties.
Same have been summarized in the respective written submissions
filed of record on their behalf.

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[11] The brief such facts are that their marriage and the existence of
children born of their union. The fact that the parties are no longer
residing or staying together as husband and wife although they have
not formally divorced, nor have they been judicially separated.

[12] That the parties’ children reside with their grandmother while the
plaintiff resides somewhere else and not with their children. That
despite this, the defendant is and has always been maintenance his
children in all respects as well as providing daily transport for their
schooling.

[13] I pause to observe that even though the plaintiff insists that she and
her minor children reside at Maseru East with her own mother; it has
since turned out in evidence before this court, that it is not true. As
indicated above, plaintiff stays somewhere else not with her children
and not at Maseru East.

[14] The plaintiff has insisted throughout her testimony and in her written
submissions to portray a false picture that she and her children reside
with her own mother at Maseru East, and about the fact the defendant
is not maintaining here and their minor children.

[15] It has ultimately transpired that in fact the plaintiff resided at Ha

Mabote in Maseru, while her children reside at Maseru East at the
school premises where the plaintiff’s mother was employed.
Although she ultimately concede that in fact, the above is the true

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 position, it remains a fact that she has not been very candid to court
about the said issues.

[16] For instance, she ultimately conceded that in fact, the defendant has always
been maintaining his children in the way described above and that he has
always provided them with transport for school, and other necessities of life
such as their medical needs.

[17] She further alleged that the standard of life of her children; which she
explained as having been luxurious has since changed. While one cannot
deny this, that is no justifiable excuse for her to have not been candid to
court.

[18] The plaintiff’s case has also been that the defendant has deserted her because
the defendant had moved back to his parental home to stay with his mother
at Hills view, living her behind at the rented flat. This also turned out not to
be true because, as per defendant’s evidence, he was forced to vacate the flat
which they had rented out because he had experienced financial problems
and so was evicted from that flat by his landlord. To this extend refer to
annexure C page 17 of the paginated record.

[19] According to defendant’s testimony it was then that the plaintiff who elected
not to move with him into their mother’s house at Hills View; went to stay at
Mabote where she had rented out a house.

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[20] Clearly, in this occasion, it was the plaintiff who first deserted the defendant
when the defendant had financial constraints thereby failing to pay rental for
the flat which they had rented. This has not been denied.

[21] It has also been defendant’s testimony that contrary to what the plaintiff
said, the plaintiff has access and authority to their joint ban accounts hence
why the plaintiff was able to draw some monies from that bank account for
her to carry on with her life. That at one time, she had drawn a cheques for
an amount of M20,000.00 ad M5,000.00 respectively in favour of Thana
Moseme. The said cheque were handed into court as exhibits and were
signed by the plaintiff. The cheque were drawn from the bank account of an
entity called Hill Sands Enterprises (PTY) LTD which is the parties’
business.

[22] The defendant’s further testimony is that the plaintiff carried out some
business without his consent after she had deserted him; and that he never
interfered with her in the affairs of this business even though she used and
traded under or as the joint family entity named above. This was supported
by a purchase order exhibit B and quotation dated the 29th August 2011. The
quotation is dated the 28th July 2011.

[23] The defendant then resigned as a Director from the Hill Sand Enterprise on
the 5th September 2011 because, according to him, he knew nothing about
the business which his wife (plaintiff) was carrying out and operating using
the families’ trade name.

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[24] The above testimony of the defendant has not been denied. In fact, plaintiff
concedes that she carried on with this business in which she sort the
assistance of Thana Moseme without her husband’s approval or consent.
Refer to subparagraph 2.3.6 (which should read 2.3.6 as this numbering has
been duplicated) of plaintiff’s written submissions.

[25] The above also confirms or butterresses the defendant’s allegations in his
counter-claim and in his written submissions. He has denied that he had any
relationship with one Tlaleng Mosoeu. He however conceded that he had a
relationship with Ntsoaki Leisanyana and has asked the court to condone
same. On the other hand, the plaintiff has made a bare denial with regard to
her adulterous relationship with Thana Moseme. She has therefore not
asked this court to condone same.

[26] The contents of the plaintiff’s written submissions give an impression that
the plaintiff knew a lot about this Thana Moseme and his businesses. This
creates a lot of doubt and question about their acquaintances especially in
the light of the defendant’s testimony that plaintiff and Thana Moseme had
an adulterous love affairs, about which Thana Moseme’s wife once
confronted the defendant complaining that plaintiff was destroying her
marriage. This remain unchallenged.

[27] The plaintiff has testified about the properties which she and the defendant
alleged own. She further argues that the defendant earns about M40,000.00
but she has not adduced or supported any evidence to proof this. She also
alleges that the defendant and he owns certain properties listed in her

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 declaration, stating that the defendant enjoys a very high income (whatever
this means). Refer to paragraph 8 and 9 of her declaration.

[28] The defendant has denied that he earns the sum of M40,000.00 but he clearly
told this court that he earns the sum of M28,000.00 per month.

[29] The defendant has been very candid to this court because he disclosed that
the rest of the other property in Qacha’s Nek and Maseru still the estate of
his late father and that the executions of his father have not completed the
liquidation of same; as such it is not correct that he has inherited some of his
late father’s properties. He testified that he has always been maintaining his
children, and that he cannot be able to maintain his wife with the sum of
twenty thousand maloti per month.

[30] The plaintiff has throughout her testimony not produced any documentary or
any kind of evidence to support her claim of the M20,000.00 per month as
maintenance she requested this court to order the defendant to pay to her.
Neither has she done so in respect of the M7,000.00 per month she requests
on behalf of their minor children.

[31] This is aside from the fact that she has conceded that the defendant
religiously maintains his children in the way that has been disclosed above.
She has clearly, not been candid to court about her not staying with her
minor at her mother’s house. In short she has failed dismally to support and
or to justify the basis upon which she claims that huge sum of money as
maintenance for her and their children.

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[32] As it is, no one knows how much rental she pays at Ha Mabote. What we
know for a fact is that she has been carrying on with business as indicated in
documents presented before court as well as her having had access to their
joint bank accounts from where she has been withdrawing some monies.

[33] The plaintiff denies that the defendant is an employee at Khali Hotel but she
has not disclosed the defendant’s position thereat. However, even assuming
without conceding that he is at employee thereat, the plaintiff has not made
any attempt to convince this court that the defendant’s salary is such that he
could afford to pay the total sum of M27,000.00 as maintenance on monthly
basis. Bearing in mind that the plaintiff is the one who deserted the
defendant when the defendant had financial constraints to pay rental for the
flat they had rented, and also that she refused to move with defendant to his
mother’s house; it becomes very difficult to comprehend the foundational
basis upon which the plaintiff claims payment of maintenance to or for her
in the exorbitant sum of twenty thousand maloti per month.

[34] It is trite law that, generally, the duty of support is a reciprocal one, but in
the instant case, nowhere has the plaintiff indicated what role she played in
the support and maintenance of her children, at least. She is on record as
having testified that around the time when they had to vacate the rented flat,
she was a student but then she went on to deny that the defendant did not
experience financial constraints at the time. This, she failed to substantiate.
She instead decided to desert the defendant to rent a house at Ha Mabote.

[35] The plaintiff has in fact claimed maintenance in the total sum of
M20,000.00, and this among others includes an amount of M4.000.00 for
9
 rent. This latter sum of money for rental is equivalent to what they were
paying for rental of the flat which they had just vacated through lack of
funds to pay same, if the plaintiff was acting rationally and like a reasonable
parent.

[36] In fact all of the itemized items and amounts of money for which the
M20,000.00 is requested by the plaintiff from the defendant as her
maintenance, no including that of their children is exceedingly unreasonable
to say the least.

[37] Even the M7,000.00 claimed on behalf of the parties’ minor children’s
maintenance is unreasonable regard being had to the unchallenged evidence
of the defendant that he has always been maintaining his children in all
respect even providing daily transport to and from school as well as
providing for their daily lunch boxes and monthly groceries. This he has
been doing since around the year 2011 when plaintiff took away the said
children to her maternal mother’s home, to date.

[38] Obviously the plaintiff does not seem to take into consideration the fact that,
should her prayers in this regard be granted, then this will effectively
paralyse the defendant as he will be left with no means for his livelihood and
may ultimately not be able to carry on and fulfil his other financial
obligations.

[39] The plaintiff is missing a crucial point; namely that one of the legal
consequences of marriage, whether in or out of community of property, is
that spouses owe each other a reciprocal duty of maintenance according to
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 their means. Also, it is trite that the duty of maintaining their children is a
common one to the parents. Each parent has to do it according to one’s
means.

[40] The plaintiff has claimed an exorbitant sum of money as maintenance for
herself and for their minor children. This she has done without having
computed same such that the defendant was unable to plead to this issue.
She only belatedly made an attempt to compute and break same down in her
written submissions.

[41] One cannot deny that even though in modern law, the duty of support s
reciprocal; in practice such a duty rests primarily on the husband. Be that as
unreasonable demands as a disguise for her maintenance and or support,
including that of their minor children where there are any.

[42] There are authorities to the effect that where a wife is the deserted she
cannot claim support from her husband. Vide: Behr v. Minister of Health
1961(1) S.A. 629 (SR) and other authorities therein cited.

[43] The duty of support of the husband for his wife and children normally
includes, in deserving cases, accommodation, food, clothes, medical and
dental attention, as well as legal costs in divorce and judicial separation.
The issue whether such a duty should be extended to cover other actions,
e.g. costs of any action, reasonably brought or defended, whether between
the spouses or between a spouse and a third party or to the costs of the
defence in criminal proceedings is a moot point.

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[44] In the instance case, it is undenied that it is plaintiff who deserted the
defendant taking away with her their minor children to her maternal
mother’s home; while she went to rent and reside at a rental house at Ha
Mabote. She did not take along her minor children to Ha Mabote. She has
also not produced proof of any kind of support her claim of the sum of
M4,000.00 (four thousand Maluti); neither has she given any reasonable
justification in respect of the maintenance claim and the amounts sort in
respect of the other items listed in her court papers which she allegedly
claim for herself and on behalf of their minor children.

[45] The said amounts are not supported by any reasonable foundational basis
regard being had to the fact that, the school fees for the parties’ oldest child
who attends school at Maseru Preparatory School of the sum of M9,025.00
per term (which is a period of about three months) far exceeds the claim of
M7,000.00 per month which plaintiff claims as support or maintenance for
their children. This school fees is being paid by the defendant as well as that
of the other younger child in the sum of M1,100.00 per term.

[46] I now deal with the plaintiff’s prayer for judicial separation. The plaintiff
first approached the court claiming as against the defendant an order for
judicial separation a mens at thoro. However, the grounds for which she so
sort as indicated above; namely that of defendant adultery, with two ladies
Ntsoaki Leisanyane and Tlaleng Mosoeu is normally not a ground for
divorce.

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[47] As has already been indicated above, the defendant denies his alleged
adulterous relationship with Tlaleng Mosoeu; but admits that with Ntsoaki
Leisanyane for which he has formally applied for condonation.

[48] There is no alternative prayer sort by the plaintiff in her summons in which
he claims judicial separation. It is a matter of common cause that, it was the
plaintiff who initiated proceedings against her husband but she has failed to
adduce relevant evidence in support of the claim of judicial separation. It is
trite law that for the plaintiff to succeed in this regard, she/he has to prove
that there was misconduct or cruelty or that the defendant has made life
together with him dangerous or intolerable for her. In the instant case, the
plaintiff refused to move into the defendant’s parental home from their
rented flat when the defendant could no longer afford to pay rental same due
to financial constraints. Instead she moved to place at Ha Mabote; and
separated with their children.

[49] This evidence remains unchallenged. It is therefore clear that the plaintiff
did not initially desert the defendant for the reason that the defendant had
made her life intolerable or dangerous. She could not and or she did not
want to stay together with the defendant’s mother. This explains and or
confirms the defendant’s evidence that the plaintiff was unruly and
disrespected him. That is butteress ad by unchallenged evidence that she
drew cheques of vast sums of money for Mr. Thana Moseme without having
consulted the defendant.

[50] Her evidence that the defendant left her and their children behind at the flat
they had rented is an afterthought and is not supported by evidence. Plaintiff
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 has not adduced evidence against the defendant has rendered her life with
him intolerable in any way and or that the conduct of the deferent
complained of was consistent with an intention to put an end to cohabitation
as husband and wife.

[51] She has not denied that indeed the defendant was no longer able to pay the
rental for the flat he had rented for his family nor has she challenged the
contents of the letter of the landlord by which he had informed defendant to
vacate the said flats due to none payment of rental by her husband. The
plaintiff just deserted the defendant once when defendant had financial
problems. Not only that, she also took away from the defendant, their minor
children who she left in the care of her mother in the premises about which
the defendant and their children.

[52] The plaintiff has also made a bare denial about her alleged adulterous
relationship with Thana Moseme and has also failed to challenge the
defendant’s evidence that whilst they were still staying together, the plaintiff
had falsely represented to him that Moseme was his brother. Also
unchallenged is defendant’s evidence that the plaintiff used to be in constant
telephonic discussion with Moseme and that this used to cause problems
between them, and also that she used to travel in Moseme’s car as she did
when she went to attend the funeral of defendant’s uncle in Qacha’s Nek.

[53] The plaintiff was also not at all pleaded to the issue that at the time when she
and defendant, first encountered marital as well as financial problems, she
was in fact a student at one of the local university and that her tuition fee and
other related costs were paid for by the defendant.
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[54] This is an important issue to which the plaintiff should pleaded in the light
of what the defendant explained in his evidence and in his answering
affidavit as to why he had decided to move back to his maternal home and
out of rented flat at Ha Thetsane. Refer to his answering affidavit.

[55] The plaintiff’s failure to disclose the above facts to court, as well as her
failure to plead to the said issues is fatal to her case.
[56] The plaintiff has joined issue with the defendant that she refused and
remained at Ha Thetsane, where it has since been revealed that they had
rented a flat, while the defendant moved out of that flat for reasons alluded
to in his answering affidavit and in his evidence before court; namely due to
financial constraints. She has however, not disclosed to this court; namely
due to financial constraints. She has however, not disclosed to this court that
he defendant actually moved back to his parental house at Hill’s view. She
only say, the defendant took household contents from same and moved out.
She neither confirms nor denies that the defendant moved to his parental
house at Hill’s view. Refer to her plea to the counter claim.

[57] In fact, her evidence that she did not move out of that rented flat but
remained behind and later went to reside at Ha Mabote without her
husband’s content and or authority corroborates the defendant’s evidence
about her behaviour towards him in his viva voce evidence and in his
answering affidavit.

[58] The fact that the plaintiff’s tuition fees are paid for by the NMDS is not
supported by any kind of evidence and her averments are mutually
15
 destructive, because she denies that the defendant pays her tuition fees, but
then immediately says he failed and or neglected to make timely fee
payments; while she had said same were paid by the NMDS from inception.

[59] Obviously, it is clear that the plaintiff is not being candid with this court.
She is also contradicting herself on important issues which have a direct
bearing on salient features of her case. As has already been alluded to
above, she has also not disclosed to this court the facts that she does not
reside with her children at the rented place at Ha Mabote. She also withheld
from this court the facts that she had been accessing their joint bank
accounts without the consent and authority of the defendant engaging in
business and paying certain monies to the person with whom she allegedly
has an adulterous relationship; and that at other times she went to attend the
funeral of their uncle in Qacha’s Nek using Moseme car and that the
defendant did not know about this and had not given his permission for her
to do so.

[60] The plaintiff has not prayed this court to condone her alleged adulterous
relationship with Mr. Thana Moseme. This is probably because she is
denying same although she has not denied or challenged evidence that she
has had a relationship with him; which relationship existed long before she
and defendant allegedly deserted each other.

[61] The plaintiff, who initiated the proceedings of judicial separation a mensa et
thoro, has relied on the grounds of the alleged defendant’s adultery for her
claim. She has nowhere pleaded malicious desertion on the part of the

16
 defendant, nor has she alleged that because of the defendant’s behaviour,
cohabitation between the parties has become dangerous and intolerable.

[62] Judicial separation has been described as being a decree of a competent

court suspending the marriage between husband and wife, separating them
from bed, board and cohabitation.

[63] There is a plethora of authorities to the effect that malicious desertion is a

sufficient cause for judicial separation, as well as adultery. The decision that
adultery is one of the grounds for judicial separation, as well as a ground for
divorce; cannot be faulted.

[64] In the instant case, each of the spouses allege that the other has committed
unlawful conduct and each of such conduct on their part carries in itself the
implication that further cohabitation has become intolerable and that indeed
the uninterrupted that cohabitation in the full sense has ended.

[65] The plaintiff has opted to ask for the smaller remedy of judicial separation;
while the defendant has opted to ask for a larger remedy of divorce in his
counter claim.

[66] These issues were extensively dealt with by court in the case of Johnson v.
Johnson 1971 A.D. 292, in which, at page 300, Solomon J.A. said (I quote)

“For inasmuch as by our law malicious desertion is a ground for

divorce. It would seem to follow as a matter of course that it must also
be a sufficient cause for judicial separation. For the larger remedy of

17
 divorce includes separation a mensa et thoro, and if the judicial party
is satisfied to ask for the smaller remedy it is difficult to see on what
ground it could possibly be refused”.

[67] In the premises and regard being had to the above, the issue whether the
plaintiff has or has not proved misconduct nor cruelty meted out to her by
the defendant is irrelevant because the ground she relies on in support of her
remedy is also a ground for divorce. The defendant has filed a counter claim
for divorce on the grounds of the plaintiff’s adultery, and indeed from his
evidence, he has also disclose and proved that the plaintiff deserted him; and
went to reside at Ha Mabote at a rented house. This, the plaintiff did at the
time when the defendant could not afford to pay rental for the flat which
they had initially rented. According to the defendant, he had financial
constraints and so he was evicted from the said flat. That was when the
plaintiff deserted her and desertion on her part continues to date. The
plaintiff did not restore conjugal rights to the defendant, hence why they are
still living apart.

[68] For the foregoing reasons, the defendant is granted a final decree of divorce
on the grounds of adultery and malicious desertion by the plaintiff.

[69] I now deal with the parties’ matrimonial property. The plaintiff has stated
that they own expensive property situated at Maseru and Qacha’s Nek
without elaborating further. She has however listed in her written
submissions a list of what she alleges forms their joint estate. Much of this
is disputed by the defendant who has among other testified that most of the
property listed therein as their joint estate is in fact his late father’s property
which is subject matter in a case involving his late father’s will and that the
18
 executors of the estate of his late father have not complete execution of this
estate.

[70] Ultimately, it is clear that, in fact, the parties’joint estate comprises of an

Isuzu Van of registration number H0300; some sites situated at
Sekamameng, Ha Thetsane, and an unfinished house situated at Hill’s View
although the ownership of this site is contested in court and the case has not
yet been finalized.

[71] This Court cannot therefore make any order for the parties’ joint estate in
relation to the disputed site as well as in respect of the motor vehicle, Audi
Q7 of registration numbers H2164 which was bought by hire purchase and
so in still the property of the bank until when it has been fully paid for. The
rest of the other property listed by the plaintiff in her written submissions
forms part of the estate of the defendant’s father as alluded to above. This
property does therefore not form part of the parties’ joint estate.

[72] The issue of the custody of the parties’ minor children has not been
vigorously dealt with in evidence by either party. However, each of the
parties’ herein has prayed that he/she be awarded custody of their minor
children with reasonable access to them by either party.

[73] Be that as it may, it has since become clear that the plaintiff has not and is
not staying or residing with her minor children ever since she deserted their
father around the year 2011. She has, from inception after her alleged
desertion of the defendant, left her said children at Maseru East with her

19
 own mother. The said premises are the property of the Maseru High School
where her mother is or was employed.

[74] The above is a matter of common cause even though the plaintiff has
repeatedly in her submissions said that she and her children stay at Maseru
East at her maiden house. She conceded in her evidence in chief as under
cross examination that she does not reside with her children at Ha Mabote,
but that she said children reside with her own mother at her mother’s reside
with her mother’s employer’s premises at Maseru East.

[75] The defendant has confirmed the above and he went further to tell this court
that the environment thereat Maseru East is not conducive to his children’s
because of its small size and that his children are not happy about their stay
there. The defendant testified that he has been paying for the entertainment
of his children and that he has taken them oven out of Lesotho for such
purposes. The plaintiff could neither admit nor challenge this evidence
because she does not reside with their said children at Maseru East. She
however conceded that the defendant is in the habit of communicating with
the said children telephonically.

[76] In brief, the plaintiff has failed to substantial her claims for the exorbitant
sums of money which she claims for herself and on behalf of their children.
There is nothing in her evidence suggesting that she has ever contributed
anything towards the maintenance of her own children.

[77] The next issue to be dealt with, is the custody of the parties’ minor children.
It is trite that the paramount consideration is the interests of the child.
20
 However, each case has its unique circumstances upon which it has to be
treated. Of course, the court has a discretion, which it must exercise
judicially, as to where to place the children. That discretion should be
exercised with due regard to the true interests of the children. This the court
will do if it is clear to it that in its opinion, and regard being had to all the
surrounding circumstances, the balance of probabilities favours party A
father than B as a custodiam parent.

[78] In the instant case, it is not in dispute that the plaintiff has never stayed
together with their minor children since or around October or November
2011. She has not told this Court any specific, justifiable reasons why she
did not reside with them at the newly acquired premises; neither has she
disclosed to court whether she did seek the defendant’s consent and or
authority that their children should reside with her maternal mother. The
defendant is on record as having testified that he had not given consent to
plaintiff to remove their children to the plaintiff’s maternal mother’s
premises alluded to above.

[79] In brief, he testified that that two bedroomed house with no running hot
water in unsafe due to the fact that it is crammed with property, and although
he pays for the children’s cartoon T.V. Channel; they are not allowed to
watch same. Well the list of his complaints and the inadequacies of the said
premises is long. Suffice it to say that he has, in his testimony indicated in
which respects he is not convinced that the said premises are not conducive
for his children.

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[80] In conclusion, the defendant has on a balance of probabilities, demonstrated
to this Court in a convincing manner, that contrary to what the plaintiff
wants this Court to belief, it is him who has always been maintaining his
children even after the plaintiff had removed them from him. He did not
only cater for the bare necessities of life but has provided them with
groceries monthly as well as providing daily transport to and from school.
He also covered all their medical, entertainment, clothing needs, as well as
educational needs as he is paying for their educational policies with
Metropolitan Lesotho.

[81] On the other hand, plaintiff has not made even the slightest attempt to tell
this court in which way she has, even on a minimal basis, any kind of
maintenance and support in respect of her children. That explains why she
could not justify or explain the basis for her claims of maintenance and that
of her children.

[82] For the foregoing reasons, and regard being had to the fact and the
surrounding circumstances, the plaintiff’s request of maintenance in the sum
of money herein indicated and requested is refused. The plaintiff is at large
to approach this Court again should circumstances change.

[83] On the issue of custody, it is the considered view of this Court that custody
of the parties’ minor children, now aged 10 and 9 years, and regard being
had to the unchallenged defendant’s evidence be and is hereby awarded to
the defendant with reasonable access to the plaintiff. Parties are at large to
work and agree on the modalities of that access. Their agreement in this
regard will then be made an order of court.
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[84] The order of court in respect of the division of their joint estate is as follows:

- Plaintiff is awarded the parties’ Isuzu motor vehicle of registration

numbers H0300.

- She is also awarded their undeveloped site situated at Sekamaneng.

- Defendant is consequently ordered to hand to the plaintiff all the

necessary and or appropriate documentation with regard to the above
named properties so that the plaintiff can have same registered in her
names.

- Further on, the defendant is ordered to assist the plaintiff to effect the
necessary transfers and or ownership and title of same into her names.

[89] Each party is to bare costs of this litigation

M. Mahase
Judge

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For Plaintiff: Adv. V.V.M. Kotelo K.C
(Assisted by Adv. T. Rantlo)

For Defendant: Adv. Kao-Theoha

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