Sunday, April 21, 2024

GCC councillor loses highly unusual child maintenance case

A man’s decision to fly to London to watch a football game was cited by his ex-wife in court papers as reason why he could afford to pay outstanding school fees of P47 800 for his child at a pricey Gaborone private school.

The man, Dudley Senabye, found himself in hot water after his ex-wife, Susan Kenosi, dragged him to court seeking an order compelling him to pay outstanding school fees due to Livingstone Kolobeng International School for their minor child. When the couple divorced in 2001, Kenosi was given full custody of all minor children and the minor child on whose behalf she launched the case is now 20 years old. After completing his secondary school last year, he was enrolled by his mother at Livingstone to study for “A” Levels and will be completing this year.

According to the divorce settlement, Senabye is responsible for his children’s school fees. This order was made by the late Justice Moatlhodi Marumo and subsequently affirmed by Justice John Mosojane and at this point in time, Kenosi was unemployed. Last year, she was appointed Specially Elected councillor in the Gaborone City Council.

Some time this year, Kenosi asked Senabye to pay all outstanding school fees because he had always been responsible for paying school fees. As evidence that her ex-husband was flush with cash, Kenosi pointed out that he “had recently undertaken a trip to London to watch a football game and was therefore in a position to pay the fees.” As regards her own financial ability, Kenosi stated that she was ill-disposed because she was supporting two of her grown-up children and her grandchildren. Additionally, she had recently bought a car to run family errands with and was thus in financial distress.

Senabye counter-argued that he was never consulted when the child was enrolled at Livingstone; he had solely put the child through school from primary to secondary school; that having done “exceedingly well” in his BGCSE examinations, the child could easily have been admitted to University of Botswana (or any other tertiary education institution for that matter) if his ex-wife hadn’t decided to enroll him for “A” Levels; that on account of having been made councillor, Kenosi was in a position to financially contribute to the child’s schooling; that the child’s enrolment for “A” Levels was not in his plans at the time of the divorce; and that such enrolment was neither part of normal secondary school education in Botswana nor a requirement for admission at any tertiary education institution in Botswana. He further argued that since it was his ex-wife’s sole decision to enroll the child for “A” Levels, she could not impose the cost of such decision on him.

In his judgement, Justice Dr. Zein Kebonang found that while common law gives the custodian parent the right to regulate a child’s daily life (including making decisions regarding their education, choice of school, medium of instruction and general upbringing) it “does not, in my view, extend to making financial decisions or commitments on behalf of the non-custodian parent.”

Kebonang agreed with the father that enrolling the child at Livingstone was unnecessary because he could easily have been admitted for his undergraduate studies at any tertiary education institution in Botswana.

“The enrolment of the child for “A” Levels was really about the applicant and not the child. It offends against one’s sense of right and justice that the applicant’s own conveniences and personal indulgences, such as buying a car, looking after her adult children and grandchildren would take precedence over her minor child’s school needs. Her unmitigated sense of right and entitlement, that she can commit the respondent financially without even consulting him leaves one also puzzled,” Kebonang said in his judgement.

Kenosi will have to find a way to pay the outstanding school fees because the judgement says that any contractual claim made by the school must lie against her.

“There is simply no basis for holding the respondent as a non-contracting parent to the claim by the school,” the judge said.   


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