THE HIGH COURT OF SWAZILAND
the matter between:
THE APPELANT: MR. SIMELANE
is an appeal against a decision of the Senior Magistrate Siteki (Mr.
Appleby) in a matrimonial action:-
awarding custody of the three minor children of the marriage between
the parties to the respondent,
directing the appellant to pay maintenance for the minor children at
the rate of E300.00 per month.
record reflects that the parties gave evidence before the Senior
Magistrate, each alleging that the other was in desertion. The
question of the custody and maintenance of the children was not dealt
with in the evidence. At the conclusion of the evidence the Senior
Magistrate issued the following order:-
to restore conjugal rights on or before 8.2.88 failing which to show
cause on 15.2.88 why a decree of divorce should not be granted.
the return date, the respondent gave evidence of non-return by the
appellant, following which the Senior Magistrate issued a final
of divorce. Counsel for the appellant then requested that the
question of custody and maintenance of the minor children, which was
not subject of the restoration order, be held over for hearing after
a report from the Social Welfare department. For some unexplained
reason the Senior Magistrate proceeded to issue the order for custody
and maintenance in the sum of E300.00. The Senior Magistrate has
since left the country and no reasons have been furnished for his
parties, particularly the appellant against whom the order was made,
were entitled to be heard on the matter and the Senior Magistrate
should have allowed a post-ponement of the matter for proper evidence
to be adduced. The custody and maintenance order cannot stand. I
confirm the final decree of divorce. The custody and maintenance
order is set aside and the matter is remitted to the Senior
Magistrate Siteki for evidence and decision.