HIGH COURT OF LESOTHO
MATHABISO MOHAPI PLAINTIFF
MOHAPI MARK MOHAPI DEFENDANT
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 14th
day of October, 1992.
Plaintiff : Miss M. Tau
Defendant : Mr. T. Monaphathi
an application for custody of the only child of the family, Thabiso
Peter Mohapi, a little boy aged 3 years and 9 months.
September I granted the plaintiff custody, denying access by the
defendant, for reasons which now follow.
parties now stand divorced, on the ground of the defendant's
malicious desertion. The parties were married on 7th June, 1987.
Within four months of the marriage, however, the defendant commenced
what can only be regarded as a campaign of assault upon the
plaintiff, beating and kicking her and attempting at times to gouge
her eyes out.
the defendant told her to go back to her maiden home and threatened
that if she insisted on staying, he would kill her.
two years of marriage, the plaintiff left the defendant.
plaintiff applied initially for custody of the child pendente lite.
The application was not resisted, and the contents of an
the plaintiff and those of another by her brother, were not
contested. The plaintiff deposed to the defendant's violent
The Court granted a rule nisi in the matter on 21st January, 1992,
granting interim custody to the plaintiff. Thereafter
affidavit, subsequently filed in support, disclosed that on 30th
January the defendant, armed with a gun, attempted
to seize the child
from the plaintiff's custody and in the process shot at and wounded
the plaintiff's father in the stomach. The
rule was confirmed on 9th
March, 1992, the Court granting custody to the plaintiff pendente
evidence was given at the application for permanent custody. A
neighbour of the plaintiff's father, Mrs. Malebohang Rasebonoang,
testified that in the afternoon of the 30th January, 1992, between 4
p.m. and 4.30 p.m., while the plaintiff and her father, Mr.
Augustinus Mofolo, were absent, the defendant arrived at the latter's
house. The witness observed him, at a
of about 100 metres, taking the child Thabiso from two playmates. She
observed him removing the child's shirt and, holding
the clothing in
one hand and the child's hand in his other hand, walking away
quickly, dragging the child, crying in protest.
about 10 minutes she saw and heard people coming towards her,
screaming that the defendant had shot Mr. Mofolo. She went to
Mofolo's house but found that he had already been taken to hospital.
Mofolo himself, a teacher, aged 62 years, gave evidence, he testified
that he arrived at his village at 4 p.m. As he approached
his home he
saw the defendant coming towards him, in a hurry, dragging the child,
with no clothing on the upper part of the child's
body. At a distance
of some 50 paces, the defendant called out, "Mofolo, you are
dead". He took out a firearm from his
pocket and, with the child
standing beside him, aimed at Mr.Mofolo, who stood there. Mr. Mofolo
"heard a sound": he subsequently
discovered that he had
been wounded. Nonetheless, he courageously picked up a stone and
threw it at the defendant, who avoided
the stone and fled into a
nearby maize field.
Mofolo himself also fled. In the process of flight he realised that
he was wounded, fortunately a
wound, the shot having apparently grazed his stomach and hip on the
left hand side. He was met by his son Lawrence and others,
holding stones. Mr. Mofolo turned to pursue the defendant, but
collapsed and was placed in an ox cart, when he heard the
apparently abandoned by the defendant, crying out, "I want my
mother. I want my mother". Mr. Mofolo was thereafter
hospitalised for a week.
defendant himself gave evidence. He testified that he only became
aware of the Court's interim order at a later stage, that
the child every week and that on 30th January, as he found the child
not in the direct custody of any adult, he decided
to take the child
away. The child was delighted to see him and ran to him from a
distance. He had left a vehicle at a distance
of about one kilometre,
and he then removed the child's shirt, as it was red in colour, in
order to wave it and to catch the driver's
attention and alert him to
the fact that he wished to walk home.
should explain that Mr. Augustinus Mofolo gave his evidence after the
defendant had given his. The procedure was unusual,
but was expressly
approved by the Court in all the circumstances of the case, in a
matrimonial proceedings, the welfare of the
child being of paramount
interest. In this respect, the defendant had
any affidavit in opposition to the earlier application. He never made
any application to give any evidence in rebuttal.
Mr. Monaphathi who represented the defendant, declined to
cross-examine Mr. Mofolo on his evidence.
circumstances, I accept that evidence. The fact remains therefore
that the defendant approached the home of the plaintiff's
armed with a firearm. That fact makes nonsense of his claim that he
was unaware of the Court's order of 21st January. He
approached Mr. Mofolo's house in defiance of the Court order,
determined to overcome any resistance in the matter.
issue of credibility, he has clearly told lies to this Court and I
prefer the evidence of Mrs. Rasebonoang and Mr. Mofolo
in the matter.
The defendant's evidence of attracting the driver of a motor vehicle,
is simply beyond belief. Clearly the child
was unhappy to be taken,
indeed dragged away. It is to be hoped that the subsequent traumatic
experience of seeing his father shoot
and wound his grandfather, will
not permanently scar his child's memory.
in mind the tender age of the child, and the father's behaviour in
the matter, I have no hesitation in
custody to the plaintiff. The question is should I also grant,
reasonable access to the defendant? Miss Tau submits that
not be in the interests of the child to do so, as the defendant is
not a fit and proper person to even have access to
moment I must agree with Miss Tau. Clearly the defendant is of a
violent and dangerous disposition. It might be said that
behaved in this fashion due to his love for the child. If that is the
case, then such expression of love is clearly, indeed
dangerously misplaced. To behave as he has done, in the presence of
the child, to partly undress the child, perhaps
to indicate that only
he might clothe the child, to drag the child crying from one family
home, reveals a complete lack of appreciation
for the child's true
welfare: the defendant's attitude indicates that he regards custody
of the child as a trophy, rather than
a responsibility demanding of
his utmost care and devotion. In brief, in view of the whole history
of violence in the marriage,
the Court needs some assurance that such
violence would not eventually be turned upon the child himself.
It is an
onerous duty, to have to deprive a parent of access to his child. But
this I must do, at least for a temporary period.
How long that period
will be, will
the defendant himself. The onus will be upon him to satisfy me that
no danger to the child will exist , in the future.
As part of that
process of satisfaction, I will require a report by an officer of the
Department of Social Welfare as to the feasibility
of any future
access to the child by the defendant.
the receipt of such report I will adjourn the matter of access until
7th December, 1992. I grant custody of the minor child
to the plaintiff and order that the defendant shall not have access
to the minor child until further order of this
at Maseru this 14th day of October, 1992.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law