Automated Summary
Key Facts
The case involves Motsoakapa Makara (respondent) and an unnamed applicant. The applicant, married in community of property to the respondent in 1980, was caught in an adulterous situation on April 13, 1990, leading to her expulsion from the marital home. The couple has two minor daughters (Ntsilane, born 1980, and Liphophi, born 1982) currently in the respondent's custody. The applicant sought a temporary interdict to prevent the respondent from removing the children to South Africa, return of personal belongings, and orders for maintenance (M200/month for herself and M100/child/month) and legal fees. The court found the applicant's chance of success in the main judicial separation action unlikely due to admitted adultery and denied most applications, including custody and maintenance. The respondent was ordered to return two parcels of belongings if not already done, and the applicant was liable for 4/5 of the respondent's costs.
Issues
- The court considered whether to issue an interdict to prevent the respondent from taking the minor children out of Lesotho pending the determination of the main judicial separation and divorce proceedings (CIV/T/191/90).
- The applicant sought an order requiring the respondent to release her personal belongings and clothes pending the main case, with the court noting that two parcels were admitted to have been left behind.
- The court evaluated whether custody of the two minor children (Ntsilane and Liphophi) should be granted to the applicant pending the main proceedings, considering the respondent's allegations of the applicant's misconduct.
- The applicant requested maintenance in the amount of M200 per month for herself and M100 per child per month during the pendency of the case, while the court assessed the respondent's ability to provide such support.
- The court examined whether the respondent should contribute M500 toward the applicant's legal fees, noting the applicant's salary of M700 per month as a factor in determining need.
Holdings
- The court denied the applicant's request for a temporary interdict to prevent the respondent from removing the children from Lesotho and granting custody to the applicant.
- The respondent was ordered to release two parcels of the applicant's personal belongings and clothes if they had not already been handed over.
Remedies
- The respondent is directed to release two parcels of the applicant's personal belongings and clothes left behind, if not already released.
- The applicant is ordered to pay four-fifths (4/5) of the respondent's costs.
Legal Principles
- The applicant must demonstrate a reasonable chance of success in the main action to justify interim relief. As per Butterworth v. Butterworth, the applicant must show more than a bare or remote possibility, though proof sufficient even if the balance of probability favors the respondent.
- The court emphasized the respondent's right to custody as the 'upper guardian' of minor children, prioritizing the child's best interests and the parent's fitness, even when the marital home no longer exists due to the applicant's misconduct.
- The court ruled the applicant's hearsay evidence about the children's registration cancellation insufficient, as it lacked corroboration from the school principal. Hearsay is admissible in urgent applications but requires verification once urgency passes.
Precedent Name
- Du Plooy v. Du Plooy
- Butterworth v. Butterworth
Judge Name
J.L. Kheola
Passage Text
- It seems to me that the applicant has failed to make out a prima facie case.
- The applicant is therefore guilty of a very serious misconduct which goes to the root of their marriage.