Pulane Letseka V Rets'elisitsoe Sootho (CIV/T/0182/2022) [2024] LSHC 110 (19 December 2024)

 

 

 

 

IN THE HIGH COURT OF LESOTHO

 

                                                                                      CIV/T/0182/2022

In the matter between:

 

PULANE LETSEKA                                                    APPLICANT

 

V

 

RET’SELISITSOE SOOTHO                                      1^ST RESPONDENT

SHERIFF OF THE HIGH COURT                            2^ND RESPONDENT

Neutral citation:- Pulane Letseka vs Retṧelisitsoe Sootho & One [2022] LSHC

Civ 110 (26 June 2024)

 

CORAM                                 :        JUSTICE M.P. RALEBESE

DATE OF HEARING             :        14  MAY 2024, 29 OCTOBER 2024

JUDGMENT                          :        26 JUNE 2024 (INTERIM)

                                                          19 DECEMBER 2024 (FINAL)

SUMMARY

Application for variation of custody order - High Court Rule 45(1) not applicable - The applicable law is the Matrimonial Causes Jurisdiction Act No.21 of 1978 - Best interests of the minor children are the paramount considerations in custody proceedings - Court decided to adopt an inquisitorial approach - No proven changes in the circumstance of the custodial parent or the children justifying the variation. 

 

ANNOTATIONS

CASES

LESOTHO

Lesala v Morojele C of A (CIV) 29 of 2011

Mafaufau v Mafaufau (C of A (CIV) 03/2022) [2022] LSCA 35 (11 November 2022)

Maqacha Khoali v His Worship Mr Selebeleng and Others (C of A (CIV) 23/20) [2020] LSCA 29 (30 October 2020)

Marabe v Maseru Magistrates' Court and Others (CONSTITUTIONAL CASE 18 of 2020) [2021] LSHC 51 (7 June 2021)

Monaheng v Mapiloko (C of A (CIV) 49 of 2017) [2019] LSCA 50 (1 November 2019)

Tlhoriso Makenete v Mookho Motanya (C of A (CIV) 53 of 13) [2014] LSCA 9 (17 April 2014)

 

SOUTH AFRICA

B v S 1995(3) SA 57

Lipschitz v Wattrus NO - 1980 (1) SA 662

Horsford v De Jager and Another 1959(2) SA 152

 

OTHER JURISDICTIONS

Re: KD (a minor)[ Re: KD (a minor) [1988]1 ALL ER 577] [1988]1 ALL ER 577

 

STATUTES

Children's Protection and Welfare Act No.7 of  2011

High Court Rules Legal Notice No.9 of 1981

Matrimonial Causes Jurisdiction Act No.21 of 1978

JUDGMENT (INTERIM)

 

Background

1. The parties in this matter are former husband and wife whose union was severed by a decree of divorce granted by default on 18^th May 2022 by     my Sister Makhetha J. The court granted the custody of the two minor        children of the union to the husband, the 1^st respondent herein, with        reasonable access by the mother, the applicant herein. The issue of           maintenance of the minor children was deferred to the Children’s Court.       The applicant instituted this application in terms of which she implored          the court to grant  the following prayers as amended:

 

          “1. That the final order in CIV/T/0182/2022 be rescinded.         Alternatively,

2. That the 2^nd and 4^th prayers in the final decree of divorce in CIVT/0182/2022 are varied.
3. That the applicant is awarded full and immediate custody of the minor children.
4. Alternatively, upon restraint by any party to adhere to prayer 3, the applicant be assisted by the Lesotho Police Services to the effect thereof.
5. That the respondent is ordered to pay for all academic expenses of the minor children.
6. That the respondent (plaintiff..)be given leave to file its defence within five (5) wording days.
7. That the respondent shall pay costs in the event of opposition.
8. That the applicant be granted further and or alternative relief.”

 

2. At the commencement of the proceedings, counsel for the applicant         conceded that the applicant was not per se seeking rescission of the        decree of divorce, but rather a variation of the order of custody of the     minor children. Consequent to that concession, counsel abandoned     prayers 1 and 6 related to rescission.

 

3. The ^first respondent opposed the application and even raised a point of law          of non-joinder of the Lesotho Mounted Police Services (LMPS). At the     commencement of the hearing, counsel for the first respondent also     abandoned the preliminary point that some of the prayers were bad.       Counsel further abandoned the preliminary point on the material dispute          of facts as he correctly conceded that the point could not be raised       preliminarily, but should be considered together with the merits. 

 

          Non-Joinder

4. It is apposite to first deal with the issue of non-joinder since a favourable           finding thereon may have the effect of delaying the determination of this    case.

 

5. The 1st respondent's submission is that the Lesotho Mounted Police         Service (LMPS)  ought to have been joined in these proceedings as an   interested party.  He premised this submission on prayer 4 of the notice of    motion which is to the effect that “upon restraint by any party to adhere         to prayer 3, the applicant be assisted by the LMPS to the effect thereof    (sic)".  The 1^st respondent contended that the court could not make an       order affecting the LMPS without the latter being given a prior   opportunity to be heard. The issue is whether the LMPS is an interested   party that should have been joined in these proceedings.

 

6. The first observation regarding the non-joinder objection is that the 1^st      respondent is in effect seeking the joinder of the LMPS as an institution.       This is contrary to the oft-repeated direction that proceedings against        Government institutions such as the LMPS should be instituted against   functionaries as opposed to the institution for ease of enforcement of           court orders (Marabe v Maseru Magistrates' Court and Others[1]).

 

7. The other observation regarding the non-joinder objection is that it is       premised on an untenable prayer. The prayer that upon restraint by any         party to adhere to prayer 3, the applicant should be assisted by the LMPS          did not arise out of any dispute or cause whatsoever between the parties.     It is an anticipatory and speculative prayer that the applicant will succeed          and the 1^st respondent will resist to comply with the order. The prayer is           abstract and hypothetical as the court has been called upon to make a       decision where there is no cause or dispute, whether actual or potential         between the parties. The courts are there to resolve real disputes between     the parties or to make pronouncements where there are real legal issues.       The courts cannot be called upon to make pronouncements or decisions          where the orders sought will be academic and will not afford either party          any tangible advantage.  As held in Lipschitz v Wattrus NO[2]-

 

          “…the Court does not make orders in vacuo or proclaim empty manifestos…It deals only with actual disputes concerning real present         issues. It would be undesirable and futile to make orders    for eventualities     which may not happen.” 

 

8. Closely related to the foregoing observation is that prayer 4 and the          sought joinder of the LMPS are unnecessary in this kind of proceedings.         It is common knowledge that the civil court orders in the High Court are         enforced by the sheriff, and the police may be requested to assist with the        enforcement of civil judgments where the sheriff encounters an   obstruction during the enforcement of the court order (Maqacha Khoali      v His Worship Mr Selebeleng and Others[3]). The fact that the police           might be invited to assist in the case of obstruction does not presuppose        the inclusion of a prayer in anticipation thereof or the joinder of the         police as a matter of course.

 

9. If prayer 4 is untenable for being academic, speculative and unnecessary,           it follows therefore that the non-joinder objection which was premised on      that prayer should also fail.

 

          Variation  

10. The applicant premised her prayer for variation of the custody order on         High Court Rule 45(1)(a). Her argument, in a nutshell, was that the court          erroneously awarded custody to the 1^st respondent. She advanced the           following reasons for that contention: the court failed to consider that the   children were already living with her as their mother at the time the   decree of divorce was granted; the court failed to make a background      inquiry to check that the best interests of the children could be taken care       of; and the court did not invite and consider the views of the children  regarding their custody. The applicant’s case was further that following       the divorce, the 1^st respondent failed to take care of the best interests of   the children, and she outlined circumstances on which she premised that       allegation.

 

11. The 1^st respondent opposed all the factual allegations advanced by the           applicant in support of her submission that he had failed or was failing to      take care of the best interests of the children. In his written and oral   submissions, the 1^st respondent argued that the applicant, being    dissatisfied with the granting of the custody order on the ground that the          court committed errors of law, ought to have reviewed or appealed the       decision in the Court of Appeal. He contended that the instant application     is either an appeal or a review of the initial custody order disguised as a           variation application.

 

12. It is apposite to preliminarily deal with the issue of whether this is a    variation application or an appeal or a review of the initial custody order       because the issue touches on the jurisdiction of this court to entertain the         instant application. A finding that this application is an appeal or a review      disguised as variation will be definitive and decisive of this case without          the need to decide the merits and substance of this case.

 

13. To determine whether this is an appeal, a review or a variation   application, we should look at the prayers sought by the applicant in the         notice of motion and the supporting averments in the founding affidavit.         While most of the averments advanced by the applicant in support of the    variation request challenge the propriety of the initial custody order,     which will be the purview of an appeal or a review, nothing in the notice       of motion or the founding affidavit suggests that the applicant is seeking      a review or an appeal. In terms of prayer 2 of the notice of motion, the        applicant is seeking variation of prayers 2 and 4 of the final degree of  divorce. In paragraph 11 of the founding affidavit, she avers that she is    seeking variation of the initial order and she goes on to ever facts on       which she relies to prove the requirements of a variation. Nowhere in the      founding papers has the applicant indicated that she is seeking either a          review or an appeal. The 1^st respondent's submission that the instant           application is tantamount to an appeal or a review is therefore untenable.

 

14. The 1^st respondent further contended that the variation application should     be dismissed as the custody order could not have been granted   erroneously. He argued that an error anticipated in High Court Rule        45(1)(a) is an error of fact as opposed to an error of law, and because the        applicant premised her application on the alleged errors of law, the          sought variation should be dismissed. He contended that the errors on       which the applicant premised her case for variation were errors of law as       she referred to several provisions of the Children Protection and        Welfare Act to which she submitted the court failed to adhere. 

           

15. The starting point in analysing the foregoing issue is to consider whether      an application for variation of ancillary orders to the decree of divorce          can properly be made under the High Court Rule 45(1)(a). To answer this     question, reference should be made to the requirements of a variation    brought in terms of the Rule, and whether those requirements are         necessary in an application for variation of a custody order. The       requirements for variation brought under Rule 45(1)(a) are that:

 

1. the default judgment must have been erroneously sought or erroneously granted;

 

2.  the judgment must have been granted in the absence of the applicant; and

 

3.  the applicant's rights or interest must have been affected by the judgment (Monaheng v Mapiloko[4]). 

 

16. These three requirements are unnecessary in an application for variation       of a custody order as hereinafter demonstrated. Firstly, the applicant for          variation of a custody order need not prove that the initial judgment was    erroneously granted. A change in the social, economic or other      circumstances of the children or the custodial parent, which change   affects the best interests of the children, can suffice to warrant variation       of a custody order. Secondly, it is not a requirement in such applications       that the judgment must have been granted in the absence of the applicant    parent. Furthermore, it is an established principle that the primary        consideration in applications of this nature is not the personal rights or   interests of the parents, but rather the best interests of the minor children   (Lesala v Morojele[5]). Whenever the jurisdiction of the court is invoked        to consider custody of children, the parental rights or privileges become       subservient to the paramount considerations of the rights and welfare of           the children. This principle was enunciated by the House of Lords in the      case of Re: KD (a minor)[6] in the following terms-

 

          “Whatever the position of the parent may be as a matter of law, and it           matters not whether he or she is described as having a “right” in law or      a“claim” by the law of nature or as a matter of common sense, it is   perfectly clear that any “right” vested in him or her must yield to the   dictates of the welfare of the child.”

 

It follows therefore that in an application for variation of a custody order, whether the rights and interests of the applicant parent were affected by the judgment sought to be varied is immaterial. All that is required is for the applicant to prove the jurisdictional requirements for variation of the custody order, the primary one being the best interests of the minor children. 

 

17.  Based on the foregoing considerations, it is clear that the necessary    jurisdictional facts in an application for variation under High Court Rule    45(1)(a) are immaterial in an application for variation of a custody order.       This therefore leads to an inescapable conclusion that applications for      variation of custody orders cannot and should not be made in terms of        High Court Rule 45(1)(a). I suppose the same is the case with       applications for variation of guardianship and maintenance orders. These       applications should properly be made under section 4 of the Matrimonial    Causes Jurisdiction Act[7]  which reads as follows:

 

          “4. In any action brought under section 2, the High Court shall have             jurisdiction -

1. …
2. …
3. to make and amend an order concerning the custody, guardianship and maintenance of any minor child of the marriage.”

 

          The instant application is an application to amend an order concerning          the custody of the two minor children.  In considering  this application,           the court should be guided by section 4 of the Children Protection and         Welfare Act[8] which provide that:-

 

          “4. The best interests of a child

1. All actions concerning a child shall take full account of his best interests.

 

          (2) The best interests of a child shall be the primary consideration for all      courts, persons, including parents, institutions or other bodies in any matter concerning a child.”

 

The inference from the foregoing provision is that the court considering a custody variation application should be satisfied that the variation is in the best interests of the concerned children. The court will generally determine the best interests of the children by considering the factors relating to the circumstances of the children as well as the circumstances of the parents and their parenting capacities. The paramount and ultimate consideration at the end of the day is the safety and well-being of the children. This was reiterated by the Court of Appeal in Mafaufau v Mafaufau[9]in the following terms-

 

          “In our law, the child's best interests are the primary and major          consideration in determining matters such as the present. This is      consistent with the terms of the Children's Protection and Welfare Act.      The Act aims to promote and protect children's rights and welfare. The          High Court may permissibly resort to its inherent jurisdiction as the              upper guardian of minor children to fulfill its duty to protect children's         rights.”

    

18. It was erroneous therefore for the applicant to have brought this variation     application under Rule 45(1)(a).

 

19. The 1st respondent contended that the applicant's case should fail because     she premised it on the argument that the court that granted the initial    custody order committed an error of law which is not the error anticipated   in Rule 45(1)(a). The 1st respondent argued that the error anticipated in   Rule 45(1)(a) is an error of fact and variation is tenable only if the court         had committed an error of fact. Having found that this custody variation           application should not have been made under High Court Rule 45(1)(a);           and that it is immaterial for the applicant to prove that the initial order       was granted erroneously, whether legally or factually; the 1st    respondent's contention is a nonstarter and it is thus bound to fail.

 

 

 

20.  Even if the instant application could properly be brought under High            Court Rule 45(1)(a), the 1^st respondent’s argument would still be   untenable as the nature of the error, whether of law or fact would be     immaterial. The Court of Appeal in Monaheng v Mapiloko[10] interpreted        the words “erroneously granted” as they appear in High Court Rule       45(1)(a) to have two meanings being that: the court must have committed     an error in law apparent from the record of proceedings; or that at the           time the judgment was made there existed a fact which, had the judge          been aware of, the judgment could not have been granted. This implies    that the error anticipated in Rule 45(1)(a) is an error of either law or fact.

 

21. The fact that the instant application was brought under the wrong legal         framework cannot be a ground for dismissing it given its importance and         the interests of the minor children that are involved. This court being the           upper guardian of the minor children is reluctant to consider and revere        that technical error at the cost of eschewing to deal with the merits of this         case which involve an important and sensitive issue of custody of the  minor children. The court therefore exercises its discretion to condone       that technical error and decides to get into the substance of this case to          enquire into the custody of the two minor children and what will be in        their best interests. In Mafaufau v Mafaufau (Supra), which was an   appeal against the order for variation of a custody order, the Court of   Appeal condoned the non-observance of the Rules because of the          importance of the issue involved in the matter and the need to decide on        the best interests of the minor child involved therein. 

 

          Disposition  (Interim)

22. The objection of non-joinder of the Lesotho Mounted Police Service is         dismissed firstly because it relates to the prayer that is untenable for     being academic, speculative and unnecessary. Secondly, the joinder of          the police for the sole purpose of enforcing a court order is unnecessary           in civil proceedings because civil judgments are rightfully enforced by          the Sheriff.

 

23. The 1^st respondent’s submission that the instant application is tantamount     to an appeal or a review in as much as it challenges the alleged error of  law committed by the court that granted the custody order is dismissed         for being unsustainable.

 

24. The application ought not to have been brought under High Court Rule         45(1)(a) but in terms of section 4(c)of the Matrimonial Causes         Jurisdiction Act. In terms of this latter provision, this court can           appropriately deal with the instant variation application and it is not a      requirement to prove that the judgment was granted erroneously. The fact           that the application was brought under the wrongful legal framework       cannot be a bar to deal with the merits of the instant case which involves       the interests of the minor children.

 

25. Given the foregoing finding, the next step should be the determination of      the merits of the application. The court notes however that there are      material disputes of facts apparent in the affidavits filed in this case.         These are the disputes that cannot be resolved on the affidavits. The       disputes are so material that they make it impracticable for this court to          decide this application on the affidavits. This being an important case that         involves custody of minor children, and this court being the upper       guardian of the minor children, it is reluctant and chary to dismiss the           application premised solely on the material dispute of facts. This court        therefore reckons that the merits of this application cannot properly and         justly be decided on the affidavits which abound with material disputes of      facts on the issues that are critical to the determination of the best        interests of the minor children. Furthermore, due to the apparent       disharmony between the parties, their viva voce evidence will be a       subjective smear campaign against each other and unlikely to assist the           court in determining the best interests of the minor children.

 

26. The court therefore refrains from deciding on the merits of this  application at this juncture and it adopts a more or less inquisitorial        procedure to enquire into the children’s best interests. As oft advised, the       court confronted with custody issues should shun proceedings that are     more of an adversarial contest between the parents, but should rather lean        towards proceeding that will be more of an investigation or inquiry into       what is in the best interests of the minor children involved[11].

 

The Order (Interim)

27. The court therefore makes the following interim orders:

1.  This matter is referred to the social workers in the Ministry of Gender, Youth and Social Development who will conduct the investigations and prepare an objective social inquiry report that will assist the court in determining the custody of the minor children bearing in mind their best interests. The investigations by the social worker should include the views of the two minor children who are said to have been born in 2013 and 2016.
2. The parties should cooperate with the social worker to ensure an objective investigation and social inquiry.
3. The matter is postponed to 08^th August 2024 for mention and further directions.

 

 

_____________________________

M. RALEBESE

 

JUDGE

 

 

 

JUDGMENT  ON THE MERITS

Background

28. Upon granting of the decree of divorce between the applicant and the 1^st       respondent by default, custody of the two minor children born of the      marriage was granted to the 1^st respondent being their father. The  children are now aged 11 years and 8 years. Immediately before the         granting of the decree of divorce, the father left the matrimonial home for       reasons irrelevant to these proceedings. The two minor children remained     with the applicant being their mother at the matrimonial home at Ha Foso.  After the granting of the divorce and around 30^th May 2022, the mother  was served with the Court Order that awarded the matrimonial home to  the father for the benefit of the minor children[12]. The mother was      consequently evicted from the matrimonial home and she went to live at       her matrimonial home at Tsoapo-Le-Bolila in the outskirts of Maseru.

 

29. Upon the eviction of the mother from the matrimonial home, the children     cried and did not want their mother to go without them. The parties     agreed that the mother should leave for her maiden home with the         children who were, at the time, enrolled at Boipabolo Junior School at Ha       Foso. The father returned to the matrimonial house and lived there with          her new partner. The children’s stay at their mother’s maiden home was         short-lived as she returned them to live with their father because she    could not afford their school bus fares from Tsoapo-Le-Bolila to          Boipabolo Junior School. The mother returned the children to their father        so that the children could be closer to their school.

 

30. The children lived with their father and her new partner while they      continued with their schooling at Boipabolo Junior School. Their school      fees for the academic year 2022 were however not settled. As a result,       they did not sit for the end-of-year examinations as they were expelled.

 

31. In the following academic year, 2023, the father enrolled the children at        Lebohang English Medium School while still living with them. On 22^nd          February 2023, the children decided not to return home to their father       after school but to walk for about 10 kilometers to their mother’s maiden         home. Since the children left for their mother’s maiden home, they never     returned to Lebohang English Medium School. The children were still at       their mother’s maiden home when the instant application was instituted.

 

32. The grounds on which the applicant is seeking variation of the custody         order  appear in paragraph 20 of the founding affidavit wherein she states          that:

          “20.1  the respondent has failed to take care of the children

          20.2 the respondent has created a toxic environment for the minor                children

          20.3 the respondent has failed to take care of the schooling needs of the        children

          20.4 it also pillars on the fact that the children do not want to live with         the respondent

          20.5 between me and the respondent, I am the competent parent to take         care of the best interest of the children.”

 

33. As earlier indicated, most of the averments advanced by the applicant in       support of the variation request challenge the propriety of the initial      custody order. Those would be the grounds for either an appeal or a        review. For purposes of this case, the court will not be concerned with          such averments, but will rather focus on the averments tending to show  the circumstances that warrant the variation of the initial custody order.

 

34.  In support of the grounds in paragraph 32 above, the applicant submits        that the children have never lived their lives without her at any point in       time. She contends that when she was evicted from the matrimonial home,      the children cried hysterically and clung to her because they had never         lived without their mother since birth. She submits that the 1^st respondent          has never had an interest in the well-being of the minor children or in        being with them. She says the lack of a bond between the 1^st respondent        and the minor children was evident from the way the children reacted   when she had to leave them at the matrimonial home with their father.          The applicant further avers that-

 

           “…the lives of the minor children while in the custody of their father got      worse and complicated than when they were with me as they became                    isolated emotionally drained, exposed to verbal and even physical abuse         from their father and his new lover. They were constantly tormented by     being left alone particularly in the night and not given proper lunch box   to school and even worse, they began to find taxis for themselves to           school at their young age as the responsibility to pay for school bus was       carelessly overlooked.”

 

It is the applicant’s case further that the 1^st respondent shut her out of the       children’s lives. She alleges that at one point, the children asked a    neighbour for a telephone to call her and in that conversation, she learned   that the 1^st respondent’s new partner used to beat them up in the absence   of their father and she would allow her baby boy to bully them. She            further learned that the father and her partner would leave the children in      the house alone at night while they went out to have fun. On one such       night, the children fled through the window to the neighbour’s house as        the doors were locked.

 

35. The supporting affidavit of ‘Mapita Mokhobo, the former teacher of one of the children at Lebohang English Medium School, shows that the children used to be miserable and withdrawn at school. She befriended them and brought them closer to her. She learned that the children were miserable because their father denied them an opportunity to visit or speak to their mother. It is possible that the children were also miserable because they had just changed the school which they loved as it later turned out in their examination that they loved Boipabolo Junior School. Changing schools for children can have psychological effects that can stir up a mix of feelings including stress, anxiety, loneliness, and even a sense of loss and grief[13]. The children in the instant case were between the ages of 9 and 6 years at the time when they changed from Boipabolo Junior School to Lebohang English Medium School. Furthermore, the children were withdrawn and miserable because they were going through a difficult time in their lives where their parents had just divorced and they were forced to hop from one place to another and from one school to another.

 

36. The 1^st respondent denied all the allegations in the applicant’s founding affidavit. It should be pointed out from the outset that most of the allegations in the applicant’s founding affidavit are hearsay as they are stories which the applicant says were told by the children, who did not attest to their truthfulness.

 

37. It is not surprising that the affidavits of the parties are not helpful in the determination of the real situation regarding the children as the parties are clearly at loggerheads on who between them should have custody of the children. There is palpable animosity between the parents with the result that  their affidavits are subjective and influenced by idiosyncratic perspectives, hence their averments should be regarded with caution (B v S[14]). In cases involving custody of the minor children, the parental rights and preferences are subordinate to the interests of the children. It is for this reason that the court will mostly rely on the report of the Social Worker who conducted the social background inquiry and the supporting affidavits of the third parties to determine the real situation of the children and what would be in their best interest.

 

The Social Inquiry report

38. Ms. Lerato Ncheke who is the Social Worker in the Ministry of Social Development in the Child Protection Services Department carried out the social inquiry and compiled the report. The Social Worker interviewed the antagonists herein being the parents of the two minor children, the two minor children, the neighbour at the erstwhile marital home and the teachers at Boipabolo Junior School and Leseli English Medium. The report was accepted as evidence in this matter there being no objections to its admission from the parties.

 

39. The findings of the Social Worker were that the children were living at their grandmother’s house (the applicant’s maiden home) with the grandmother, their two aunts, their uncle, and two cousins. On the day the Social Worker visited the applicant’s maiden home, she found one woman and four men outside the house and they seemed to be highly intoxicated. The house was said to be dirty and untidy and there was a stove on the floor which could easily be kicked by the four minor children living in the house. One of these children was burned by a paraffin stove in the same house some months earlier.

 

40. The mother was said to be staying at a different rented place and not with the children. The children were enrolled at Leseli English Medium School in the vicinity of their grandmother’s place, but they were not in school at the time of the investigations (around September 2024) as they did not return to school after the school winter vacation.

 

41. In terms of the report, the children indicated that their father used to beat them while they were staying with him and his new partner. The children indicated that their father and his new partner used to go out at night leaving them alone at home and he did not permit them to talk to their mother. The report does not show why their father would beat them. This is contrary to what was alleged by the mother in her founding affidavit that the father’s new partner was the one who used to beat up the children in their father’s absence.

 

42. The report shows that the interview with the neighbour revealed that the applicant and 1^st respondent’s family used to be a normal one until after the father was no longer staying there. There were constant parties in the house and the children would be home during the school hours. This corroborates the evidence of  ‘Mathabo Ramahapu who was the teacher of one of the children at Boipabolo Junior School.  In terms of her supporting affidavit to the founding papers, ‘Mathabo Ramahapu indicated that the children used to go to school with lunch boxes until there was a sudden change in 2022 when the children would go to school without proper lunch boxes and at times they would even miss school because they had no lunch boxes. The teacher arranged with the mother that she should pay her on a monthly basis so that she could prepare daily lunch boxes for the children. This arrangement did not last as the mother failed to pay the teacher. The teacher indicated that during the second quarter of 2022, the children missed school for weeks and only showed up during the 2^nd quarter examinations. They attended school well during the 3^rd quarter and were brought to school by their father and her new partner. The children however failed to write the 4^th quarter examinations as their 3^rd and 4^th quarter tuition fees had not been settled.  The same teacher reiterated this story in her interview with the Social Worker and she further said that when she used to prepare lunch boxes for the children, they would not finish the food at school as they indicated that they did not have anything to eat when they got home because their mother was hardly ever at home when they returned from school and she did not leave any food for them. She further indicated that when the children were taken to school by a woman she did not know, they were clean and well taken care of, and they always had lunch boxes with freshly cooked food. She said the woman would pick up the children after school and they would run to her and hug her indicating a warm relationship.

 

43. In terms of the social background report, the neighbour disclosed that there were several times when the children would arrive at night at her place saying their mother and aunt were not at home and they were afraid of being in the house alone and they would also be hungry. The neighbour would give the children food and she would let them stay for the night. After some months, the neighbour realised that the father was the one living with the children. There were no longer parties in the house and the children no longer came to her house for a sleepover or complaining of hunger. She then realised that the family had been joined by another woman, probably the father’s new partner. Even though the neigbour did not know the woman and her relations with the girls, they seemed to be thriving, clean and well taken care of.

 

44.  The report shows that Leseli English Medium School, which is the latest school where the children were enrolled, is a kind of derelict building with broken windows and it did not seem to be a conducive environment for children to be educated in. The interview with the teachers at Leseli English Medium School revealed that the teachers had been warned by the girls’ grandmother that they should expect a Social Worker and that they should not say anything that would make the grandmother and her family look bad. The teachers said the mother also arrived at the school for the first time earlier on the same day and she also reiterated that the teachers should not say anything to the Social Worker that would make them look bad or irresponsible. The teachers said the children did not return to school since the schools re-opened after the winter vacation.

 

45. After the Social Worker had presented her report, both the Counsel for the applicant and the 1^st respondent felt that the children should be called for further examination, especially on their views regarding their custody and schooling. The children were called on 29^th October 2024 and they confirmed that they had not returned to school after the winter vacation as their mother could not do people’s hair and therefore did not have money for their school fees. They indicated that before they enrolled at Leseli English Medium School, they attended school at Tumelo in Tsoapo-Le-Bolila and Twinkling Star in MASOWE 3. They said amongst all the schools that they attended, they loved Boipabolo Junior School. They said their preference was to stay with their mother because at their father’s, they were made to clean the house and they were beaten with a thorny stick. They did not mention who used to beat them and why they were so beaten. In their interview with the Social Worker, one child alleged that their father used to beat them with ‘bobatsi’ (stinging nettle) while the other said he used to beat them with the belt. This is contrary to what was alleged by their mother in her founding affidavit that the children told her that they would be beaten by their father’s partner while their father was away.

 

 

          Analysis 

46. In terms of section 4 of the Children’s Protection and Welfare Act which mirrors Article 3(1) of the Convention on the Rights of the Child and Article 4(1) of the African Charter on the Rights and Welfare of the Child,  the best interests of the child should be a primary consideration in all matters and proceedings concerning the child. The courts’ approach in custody variation matters was aptly stated by the Court of Appeal in Mafaufau v Mafaufau[15] in the following terms:-

          “It is trite that in matters of this kind, the interests of the children are the     first and paramount consideration. Generally speaking, where,      following     a divorce, the custodian parent does things which are inimical to the child's best interests, a court will not lightly refuse an application to   have the child’s custody removed from such parent. The best interests of           the child’s determinations are generally made by considering a number        of factors related to the child's circumstances and the parent or       caregiver's   circumstances and capacity to parent, with the child's      ultimate safety and well-being as the paramount concern.”

 

47. In proceedings of this nature, the question of onus does not arise, and the proceedings become more of an inquiry and the court adopts an inquisitorial procedure to ascertain what will be in the best interests of the children concerned[16]. The court will make this determination based on objective criteria as opposed to the parental idiosyncratic interests and preferences or the children’s subjective wishes. The children’s best interests should be viewed from short-term, medium-term, and long-term perspectives.

 

48. Given the facts before this court, the question is whether there is anything inimical to the best interests of the children that justifies the variation of the initial custody order. Apart from the applicant’s allegations and the declarations of the children that they used to be beaten by either their father or his new partner, which allegation is clouded with lots of inconsistencies as earlier alluded to in this judgment, there is nothing to indicate that the children’s welfare was in jeopardy when they were living with their father. The information provided by the teacher at Boipabolo Junior School and the neighbour at the erstwhile marital home showed that the children were well taken care of physically and in terms of food while living with their father alone and even after their father had been joined by his new partner. The children attended school regularly when they were in the care of their father, with the exception that their fees for the academic year 2022 were not settled. This too cannot be exclusively blamed on the 1^st respondent. As the 1^st respondent indicated and in terms of Annexure RS10 to his answering affidavit which was the extract of his WhatsApp communication with the applicant, the latter refused to pay the children’s fees as they initially agreed.

 

49.   The unfavourable and adverse circumstances however seemed to have maintained while the children were living with their mother. There were constant parties in the house, the children used to miss school,  they would not have lunch boxes and food at home and they would be left home alone at night. The children are currently in the applicant’s custody and they did not return to school after the winter school vacations. The social background report also revealed that the children are not even living with the applicant who is reported to be living elsewhere at a rented house while the children live at her maiden home. This was confirmed by the children. The conditions at the grandmother’s house were described as unconducive for the children in terms of their safety and well-being.

 

50. The turnover at which the children have changed schools between 2022 when they left their father and 2024 is worrying, to say the least. They have been enrolled in three schools in the space of two years. This is in addition to Lebohang English Medium School where they were enrolled at the beginning of 2022 just before they left their father. Changing schools as already alluded to, has an impact of interrupting the children's academic development. In addition to absorbing the lessons at the new school, the children have to struggle with adapting to the new environment, teachers, peers, curriculum and pedagogical strategies which might differ from what they were used to. The effects of changing schools on young children have been summed up as follows:-

          “Relocation is a daunting experience for … children. For a student, it can     often be a wrenching social and emotional experience having to change    schools. Leaving their social circles, relationships, and lifestyle can          negatively impact their mental health. Moving schools can be challenging       for early to middle years students as they go through the most important    physical and emotional development phases…The transition to a new           school can be overwhelming for children as they have to leave behind an           environment they are familiar with and people they care about in order to     adjust to an unknown setting, which can cause feelings of uncertainty and         worry, leading to anxiety and stress. Children express these     psychological symptoms in many different ways. Some may become more withdrawn or irritable, whilst others may have trouble sleeping or           experience physical symptoms such as stomachaches or headaches.”^[17]

 

 

51. While it is true that the children moved from their father’s custody to their mother’s maiden home on their own and they also indicated before the court that they prefer to stay with their mother, the major consideration is whether their subjective preferences are in their best interests. The children's views and preferences may, in some cases be relevant in custody matters. The two children involved in this case however are too young and they have not psychologically and emotionally developed to know what is in their best interests[18]. From the perspective of their best interests, nothing in what they told the court justifies their preference to live with their mother. 

 

52.  What seems to be the problem in the instant case is that each of the parents becomes selfish the moment the children are in their respective custody. They deny the other parent the right of access to the children while also denying the children their rights to contact, relate and have time with the other parent. Denying the other parent access to the children is tantamount to denying the children their rights to relate and have contact with that other parent, and that is not in the best interests of the children who deserve the love and affection from both parents. It is further a contravention of section 201 of the Children’s Protection and Welfare Act which gives the non-custodial parent the right of access to the children. Access of a non-custodial parent is therefore mandatory until it is uplifted by the court on a good cause in the best interest of the children. Both parents should realise that denying the children access to the other parent without a just cause can negatively affect the children either psychologically or in their school performance. The two children are already caught up in the middle of the divorce and the bad blood between their parents. All that the parents can do is to ensure a smooth co-parenting arrangement for the interest and welfare of the children.

 

53. The children being girls who have lived with their mother since their birth, undoubtedly had a strong feeling of emptiness having separated from their mother more so when they were denied an opportunity to have time and contact with her. As the children told the teacher at Lebohang English Medium School, they were miserable because their father was denying them the opportunity to contact their mother either physically or telephonically. The decision to leave their father was likely fueled by the persistent yearning for motherly contact and love.

 

 

          Disposition (The merits)

54. In an application for variation of a custody order, the court should be satisfied that special circumstances or a good cause exists indicating that the social and other circumstances of the custodial parent are inimical to the best interests of the children. No such grounds exist in the instant case. There is clear proof that the minor children are better cared for in terms of food, care, support and schooling when they are with their father and the opposite is the case when they are in the care of their mother. It is mind-boggling that the applicant is seeking custody of the children whom she has left in the care of their grandmother and aunts while she is living all by herself.

 

55. The evidence before this court shows that the applicant is unable to cater to the educational needs of the children because every time they are in her custody, they miss school. There is no justification that the children are out of school for reasons of tuition fees while the Government of Lesotho is providing free primary education. In terms of section 11 read with section 22(k) of the Children’s Protection and Welfare Act, the two minor children have the right to primary education which is compulsory. Section 212(1) and (3)  of the same Act provides that a parent is under a duty to provide for the basic education of a child and failure to do so is a criminal offence punishable, on conviction, to a fine not exceeding one thousand Maloti or to imprisonment for a period not exceeding one month or both.

 

56. Though the children left their father for their mother’s maiden home by themselves, the court has considered that their mother is not physically staying with the children. She has left them in the care of her mother and her siblings who have their own children while she is living in a rented place by herself. An untidy home where a stove is left on the floor, even after one of the children staying therein got burned, and which is inhabited by drunken men is far from conducive for the safety and welfare of the children especially when their mother is absent to take care of them.

 

57. The court is not persuaded that there are grounds warranting the variation of the initial custody order. There are no substantial issues in the circumstances of the father or the children which are inimical to the safety, welfare or the best interests of the children to warrant the variation. The application is therefore dismissed.

 

          The Order (Final)

58. The following order is made:-

1. The application for variation of a custody order is dismissed.
2. The children should forthwith be relocated into their father’s custody and their mother shall have access to the children as follows:-

1. The children will visit their mother at her own rented place one weekend per month during the school term and she may also have access to the children on other weekends as the parties may agree.
2. The children will visit their mother during the Easter and Independence school vacations and during half the duration of the winter and Christmas school vacations.

3. The Social Worker who prepared the social background report should counsel and prepare the children for their relocation with their father.
4. The Social Worker should monitor the children and continue to give them the necessary counseling support to ensure their smooth transition into the care of their father and should submit a monitoring report to the court on or before 31^st March 2025.
5. The 1^st respondent (the father) should ensure that the children are enrolled in school from the beginning academic year 2025. This is without prejudice to any order for maintenance that may be made by the Children’s Court.
6. Each part shall bear its own costs.

 

 

 

_____________________________

M. RALEBESE

 

JUDGE

 

 

For the applicant:            Advocate L. Mejaela-Pheko

For the 1^st respondent:     Advocate L. Tuke and Advocate Mpobole