IN THE HIGH COURT OF LESOTHO
In the matter between:
'MAMOALOSI MARY-GORETTI KHATALA APPLICANT
BOIKI MOTSAMAI KHATALA RESPONDENT
Delivered by the Honourable Mrs Justice A. M. Hlajoane Acting Judge on 7th Day of November, 2001
The parties are husband and wife married in Community of Property. The Applicant has approached the Court ex-parte seeking for an interim relief pending the determination of the Judicial separation matter in a certain CIV/T/205/2000. In the Application she seeks to interdict the Respondent from assaulting her, assaulting and abusing the parties' child who is only nine (9) years old now; and that she should be given custody of the minor child during school vacations.
It is worth mentioning at this juncture, that though Mr Molapo for the Respondent seemed to have some doubts concerning the Judicial separation action which on the papers ought to have been filed simultaneously with this Application, it came out that in fact the action had been filed as alleged and served, so that the issue of the application pending the main action of Judicial separation was abandoned.
The Respondent conceded that the Court of Appeal in its wisdom has shown that urgency averred on affidavit was sufficient. The Respondent in his submissions went further to show that the point in limine on that score has been superceded by events thus causing it to lack merit in this case. But later on in his submissions, the Respondent showed that the Applicant has failed to show how notice to the other party will defeat the purpose of the Application. This came as a shock to me because I took it, he had abandoned that point in limine, as averments have been made out on. affidavit.
Applicant in her papers showed that she feared that knowing the Respondent
as a very vengeful and dangerous man, upon being served first with the papers he may wreck havoc and defeat the very purpose for which the relief is sought herein by assaulting her or even disposing more assets of the joint estate. Respondent on that point has contradicted himself, so that his point in limine falls away as lacking merit.
On the Merits
Issues for determination here stand as follows:
(i) Whether there are indeed glaring disputes of fact which might put the Court into a difficult situation to determine.
(ii) Whether documentary evidence needed in support of Applicant's averment, i.e. police and family members.
(iii) Whether consultation was needed at all before the Respondent sold the third vehicle forming part of their joint estate.
(iv) Whether temporary custody of the minor child to Applicant is necessary.
Dispute of Fact
There is no dispute that parties were married by civil rites and in Community of Property. That their marriage has been blessed with one child who is only nine years old. The marriage between the parties is no longer a happy one as they always quarrel over this and that. Applicant is now staying in Mohale's hoek by reason of work related purposes; as she is working at Standard Bank in Mohale's hoek.
This Application is pending a Judicial separation trial which has been filed simultaneously with it, so that the issue of infidelity by the Applicant as alleged would best be dealt with in that trial action.
There is also no dispute in the fact that Applicant took the child to Mohale's hoek without the Respondent's permission, and the Respondent admits collecting his son thereat in a violent manner, using abusive language and entering through the window. He broke through the window and Applicant was forced to flee for her life.
The matter was reported to the police who intervened and visited the scene. If Respondent did behave in this violent manner, why should the Court not believe the Applicant when saying she has on many other occasions been subjected to violent outbursts of temper in public by the Respondent.
On the authority of the case of Room hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) S.A. 1155, where it was said, "except in interlocutory matters, it is undesirable to attempt to settle disputes of fact solely on probabilities disclosed in contradictory affidavits. Where no real disputes of fact exists there is no reason for the incurring of the delay and expense involved in a trial action and
motion proceedings are generally recognised as permissible," I have come to the conclusion that in fact no real dispute of fact exists as Respondent himself has admitted those facts. He has not denied that the police were involved at some stage, and that he gained entry through the window by breaking it as he said, he had lost temper. He explains his behaviour as a normal course of every marital relationship, and wants the Court to take his word on such an unbecoming behaviour, by calling it normal.
Respondent is saying he is not denying Applicant access to the child visiting her yet he fiercely went to Mohale's hoek to collect the child from the Applicant.
Respondent himself through his counsel showed that he had stopped assaulting the Applicant because immediately the police told him of he stopped. Would there still be any documentary evidence needed when Respondent himself admits the assaults on the Applicant. Look at how he behaved when going to collect the child from Mohale's hoek. He gained entry through the window by breaking it. One would wonder as to what could have happened had he found the Applicant still in there, luckily she managed to flee just in time.
The Court can therefore draw an inference that if the Respondent could act in the manner he did it is therefore more probable than not that he assaulted the Applicant as alleged. There is in fact enough material on the papers that would persuade the Court into drawing inferences against the Respondent.
As was said in the case of Matjeloane v Matjeloane 1977 LLR 4, that "in marriage which is in Community of Property, the husband is the administrator of the joint estate and his rights and duties in this regard do not vary even if it is abundantly clear that a division of the joint estate pursuant to divorce or similar action will be granted. The husband is in sole control of the assets and may ordinarily (my emphasis) freely alienate them. The husband is moreover not bound to give an account of his good or bad administration."
I have underlined the word ordinarily for the purposes of emphasis because the same case emphasized that marital powers of her husband obtain when things are still normal. The wife seeking to protect her rights must show that in regard to her husband's administration of the Community assets, his conduct is such that she can be said to have a reasonable apprehension that her rights in relation to
those assets will be prejudiced.
Respondent has admitted selling the vehicle forming part of the joint estate which apparently was used by the Applicant. According to the Applicant this was done because Respondent alleged that the vehicle was being misused by the Applicant. In answer to this the Respondent showed that the Applicant is asking the Court to deprive him of his marital power.
Respondent never said he sold the car because it was advantageous to the joint estate, but only says it was being misused. Applicant is not being allowed the utilities of the joint estate. It has not been said selling of the vehicle was proper for good administration.
Respondent cannot therefore be allowed to hide behind the invariable consequences
of marriage under Community of Property. The Applicant is not saying she was not only consulted, but further shows that since they are no longer living in peace, she fears that her rights will be prejudiced; she is under a reasonable apprehension because part of that property has already been given away. One might be tempted to
say out of spite.
Applicant is asking the Court to grant her temporary custody of the minor child during school holidays. It has been clear that the marriage between the parties is no longer a happy one, but the High Court, being an upper guardian of minors is not to allow such state of affairs to affect the minors. Both parents have an obligation towards the child. The Court must therefore try to maintain and nature the bond between the child and both parents. By his behaviour, the Respondent has shown that he is denying the Applicant any access to the child. The Court under the circumstances feels that the Applicant must be allowed reasonable access to the child during school holidays.
In the result, the Application succeeds with costs.
A.M. HLAJOANE ACTING JUDGE
For Applicant: Mr Mda
For Respondent: Mr Molapo