Automated Summary
Key Facts
The applicant and respondent were married in community of property on 5 January 1980 at Mafeteng. They have two minor daughters: Ntsilane (born 19 May 1980) and Liphophi (born 21 June 1982). Judicial separation proceedings (applicant) and divorce proceedings (respondent) are pending. On 13 April 1990, the respondent caught the applicant with another man at their marital home. On 14 May 1990, the respondent expelled the applicant, taking her to her brother's home. The applicant claims she was not allowed to take all personal belongings, though the respondent's attorney admitted two parcels were left behind. The applicant alleges the respondent plans to move the children to South Africa, but the respondent denies this. The applicant earns M700 per month.
Issues
- The court weighed whether the applicant's custody claim aligned with the children's best interests. While the applicant argued her moral fitness, the respondent countered with allegations of her misconduct. The court deferred final custody determination to the main action but emphasized the need for evidence beyond hearsay.
- The court evaluated the applicant's request for a temporary interdict to stop the respondent from taking the children out of Lesotho and withholding her personal belongings. The applicant's claim was rejected due to insufficient evidence of imminent harm and failure to meet the threshold for interim relief.
- The court examined the applicant's request for monthly maintenance for herself and the children while the main case was pending. The applicant's claim was denied as she failed to demonstrate a reasonable likelihood of success in the main action, which is a prerequisite for such interim relief.
- The court considered if the respondent should be ordered to pay a contribution towards the applicant's legal fees pending the main action. The applicant argued her financial need, while the respondent's ability to contribute was undisputed but the court found the claim unmerited due to the applicant's failure to establish a prima facie case.
- The court assessed the validity of the applicant's hearsay evidence regarding the respondent's cancellation of the children's school registration. The court noted that while hearsay may be acceptable in urgent applications, the applicant failed to obtain a supporting affidavit, weakening her claim.
- The court addressed whether the applicant could obtain an interim interdict preventing the respondent from removing the children from Lesotho, custody of the minor children pending the main action, and maintenance and legal fee contribution. The applicant's claim for these interim orders hinged on her ability to demonstrate a reasonable chance of success in the main judicial separation and divorce proceedings, which were complicated by her admitted adultery.
Holdings
- Order (b) is confirmed to the extent that the two parcels left behind should be released to the applicant if they have not yet been released to her.
- Order (a) is discharged, meaning the respondent shall not be interdicted forthwith from taking the children and causing them to live out of Lesotho pending the determination of CIV/T/191/90.
- Order (f) is discharged, so the respondent shall not be directed to pay the costs hereof.
- Order (d) is discharged; the respondent shall not be ordered to maintain the applicant and the children in the sum of M200-00 per month for the applicant and M100-00 per child per month pending the determination of CIV/T/191/90.
- Order (c) is discharged, so the custody of the minor children shall not be granted to the applicant pending the determination of CIV/T/191/90.
- Order (e) is discharged, indicating the respondent shall not be directed to pay a contribution in the sum of M600-00 towards the applicant's legal fees.
- The applicant is ordered to pay four-fifths (4/5) of the respondent's costs.
Remedies
- The applicant is ordered to pay four-fifths of the respondent's costs in the application.
- The court confirms the respondent's obligation to release the applicant's two parcels of personal belongings and clothes, if they have not been handed over yet.
- The court denies the applicant's claim for a contribution towards her legal fees.
- The court dismisses the applicant's application for an interdict to prevent the respondent from removing the children from Lesotho pending the main case.
- The court does not grant custody of the children to the applicant during the pendency of the judicial separation and divorce proceedings.
- The applicant's request for maintenance pendente lite from the respondent is denied.
Legal Principles
- The court applied the principle that an applicant must establish facts that would lead to success in the main action. Failure to meet this burden results in the denial of interim relief such as custody, maintenance, and cost contributions. In this case, the applicant's admission of adultery undermined her claim to custody and other remedies.
- The court emphasized that the applicant needed to demonstrate a 'reasonable chance of success' (not merely a bare or remote possibility) to justify interim relief. This aligns with the standard of proof required for such applications, as illustrated by the Butterworth v. Butterworth case.
Precedent Name
- Calitz v. Calitz
- Butterworth v. Butterworth
- Du Plooy v. Du Plooy
Judge Name
J.L. Kheola
Passage Text
- In an application for a contribution towards the costs of a matrimonial action, custody of a minor child and maintenance pendente lite, what the applicant has to lay before the Court are facts whereon she, should such facts be proved, would succeed in the main action. Should it appear from the respondent's refutation of such facts that she cannot succeed in the main action, or that the possibility that she will succeed is so small that the hearing of the main action would not be justified, then she fails to discharge the onus and has no claim to a contribution towards costs nor to an order pendente lite in regard to maintenance or the custody of the minor child. Should she succeed in discharging the onus on her, the deciding factor, as regards her claim for the custody of the minor child pending the main action, is what will be in the best interests of the child.
- The weight of authority seems to me to be in favour of the view that it is necessary for the applicant to show that she has a reasonable, and not a merely bare or remote, chance of success, but that such proof is sufficient even if there is a substantial balance of probability against her.
- The non-existence of the common home, brought about as it has been by the wife's unlawful desertion is not a factor which a Court of law can allow to operate in her favour on the question of the custody of the child. As the learned Judge found that she had no just ground for leaving her husband, her duty is to return to him and look after her child under his roof.