'Mathabo Maphike (nee Malahleha) V Moeketsi Maphike (C of A (CIV) No 46/2024) [2024] LSCA 35 (1 November 2024)

# 'Mathabo Maphike (nee Malahleha) V Moeketsi Maphike (C of A (CIV) No 46/2024) [2024] LSCA 35 (1 November 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2024/35/eng@2024-11-01) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2024/35/eng@2024-11-01) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2024/35/eng@2024-11-01) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2024/35/eng@2024-11-01) [ __](mailto:?subject=Take a look at this document from LesLII: 'Mathabo Maphike \(nee Malahleha\) V Moeketsi Maphike …&body=https://lesotholii.org/akn/ls/judgment/lsca/2024/35/eng@2024-11-01) [ Download PDF (156.6 KB) ](/akn/ls/judgment/lsca/2024/35/eng@2024-11-01/source) Report a problem __ * Share * [ Download PDF (156.6 KB) ](/akn/ls/judgment/lsca/2024/35/eng@2024-11-01/source) * * * * * Report a problem __ ##### 'Mathabo Maphike (nee Malahleha) V Moeketsi Maphike (C of A (CIV) No 46/2024) [2024] LSCA 35 (1 November 2024) Copy citation * __Document detail * __Related documents Citation 'Mathabo Maphike (nee Malahleha) V Moeketsi Maphike (C of A (CIV) No 46/2024) [2024] LSCA 35 (1 November 2024) Copy Media Neutral Citation [2024] LSCA 35 Copy Hearing date 16 October 2024 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No 46/2024 Judges [Mosito P](/judgments/all/?judges=Mosito%20P), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ) Judgment date 1 November 2024 Language English Summary Read full summary * * * Skip to document content **** **LESOTHO** **IN THE COURT OF APPEAL OF LESOTHO** **HELD IN MASERU** **C OF A (CIV) 46/2024** In the matter between: **‘MATHABO MAPHIKE (nee MALAHLEHA) APPELLANT** AND **MOEKETSANE MAPHIKE RESPONDENT** **CORAM:** MOSITO P SAKOANE CJ MUSONDA AJA **HEARD:** 16**** OCTOBER 2024 **DELIVERED:** 1 NOVEMBER 2024 **_SUMMARY_** _Matrimonial action – Maintenance pendente lite – wife applying for maintenance against proceedings – High Court dismissing the application on the basis of lack of jurisdiction – the jurisdiction of the High Court in divorce in respect of civil marriages – the validity of the decision._ **JUDGMENT** **SAKOANE CJ:** **Introduction** [1] The appellant and the respondent are wife and husband, respectively. The husband has instituted divorce proceedings in the court _a quo_ on 7 May 2024, the wife filed an application for maintenance and contribution of legal fees _pendente lite_ (i.e pending finalisation of divorce proceedings). _Makara_ J granted the following order (without written reasons): “1. The application for maintenance should not have been mounted as incidental application pending the finalisation of the divorce proceedings. 2\. The respondent is ordered to contribute M10,000.00 towards Applicants (sic) legal fees.” [2] Dissatisfied with paragraph 1 of the order, the wife (appellant) appeals on the following sole ground: “The learned judge erred and misdirected himself by dismissing Appellant’s prayer that the Respondent herein be ordered to pay the appellant maintenance in the amount of M3,600.00 per month retrospectively from the 30th April 2024 and or reasonable maintenance on the basis that he had no jurisdiction to entertain the said prayer for maintenance as an interlocutory application to a divorce action and holding that the maintenance proceedings ought to have been brought as an independent action in the subordinate court.” [3] I have reproduced this ground of appeal because it sheds light on the reason behind the learned Judge’s dismissal of the relief for payment of maintenance. Absent a written judgment - conduct which this Court has on countless occasions frowned upon, constitutes judicial indiscipline and violates the litigants’ rights to be told timeously why they have lost or won cases[1]. [4] The duty to give litigants written reasons for judicial decisions is now unambiguously provided for in the**High Court Civil Litigation Rues, 2024** Part 17 Rule 156. Failure to deliver is a breach of the **Code of Ethics 2024** for which disciplinary action can be taken by the Judicial Service Commission. [5] In this appeal, the absence of reasons is not an impediment to the appeal because the misdirection is patent on the record. **The Law** [6] In terms of the **Matrimonial Causes Jurisdiction Act No.21 of 1978** , a wife whose husband is not domiciled in Lesotho can sue in the High Court for an order compelling him to pay alimony _pendente lite_ or to make contribution towards costs. [7] This Act extends the jurisdiction of the High Court in divorce matters. A wife can sue for maintenance pending finalization of the proceedings. The High Court being the proper divorce court in civil marriage, has unrivalled jurisdiction to grant an order for payment of spousal maintenance. [8] The provisions of the Act merely confirm (if confirmation is needed) the unlimited jurisdiction of the High Court to grant maintenance orders pending finalization of the divorce proceedings. There cannot be any legal and rational bases for the High Court to decline jurisdiction in an ancillary matter of the sort _in casu_.[2] **Disposition** [9] The learned Judge exercised jurisdiction to grant the prayer for contribution towards cost but declined jurisdiction in respect of the prayer for maintenance _pendete lite_. In my respectful opinion, he failed to appreciate that maintenance and contribution towards costs rest on the same basis and are governed by the same rules, although it does not follow that the refusal of one means the grant of another and _vice versa**[3]**._ [10] The application for contribution of costs and maintenance is ancillary to the main action of divorce and, therefore, justiciable. It cannot be that the jurisdiction of the High Court is available in one prayer and non-available in the other. The learned Judge fell into error by rejecting the prayer for maintenance on the basis that he lacked jurisdiction and directing the appellant to approach the Subordinate Court. That court does not have jurisdiction in divorces in respect of civil marriage. **Costs** [11] The appellant was in the right court to prosecute the application ancillary to the main action. Costs incurred thereby should be costs in the cause. **Order** [12] In the result, the following order is made: 1\. The appeal succeeds. 2\. The matter is remitted to the High Court to be dealt with on the merits. 3\. Costs shall be costs in the cause. **________________________________** **S. P. SAKOANE** **CHIEF JUSTICE** I agree **____________________________** **K. E. MOSITO** **PRESIDENT OF THE COURT OF APPEAL** I agree __________________________ **P. MUSONDA** **ACTING JUSTICE OF APPEAL** **For the Appellants:** Adv. L.D. Molapo **For the Respondents:** Adv.**** M. Rafoneke * * * [1] For example, Jaase and Others v. Jaase and Others LAC (2017 – 2018) 22 para [8] – [9] [2] Zaduck v. Zaduck 1966(1) SA 78 (SR) [3] Hahlo H.R. The South African Law of Husband and Wife 5th Edition p.432 #### __Related documents ▲ To the top >