HIGH COURT OF LESOTHO
AUGUSTINA 'MATSIE MAJORO APPLICANT
MOTSEKI MAJORO RESPONDENT
the Honourable the Chief Justice Mr. Justice B.P. Cullinan on the 6th
day of June, 1993.
Applicant : Mr. M.M. Ramodibedi
Respondent : Mr. T. Mohapi
an application for custody pondente lite, concerning the only child
of the marriage, a little boy named Bosomane aged 6
applicant avers that the marriage has broken down irretrievably. She
left the matrimonial home on 10th August, 1992. She fetched
from the matrimonial home in January, 1993. The respondent and his
father in turn fetched the child from her home in
May, 1993. Both
parties aver that the child was removed on each occasion by stealth
and by force respectively. The applicant avers
that on the latter
occasion, the child's clothing and books were left behind. That
averment is not denied by the respondent, and
I agree with Mr.
reveals an approach which regards the child as a trophy to be won in
the matrimonial contest.
clear to me is that when the applicant took possession of the child,
she did so after the child had graduated from a Nursery
she thereafter sent: him to a Primary School in Maseru, where the
child was doing well. It is not altogether clear
to me that the
respondent allowed the child to continue at the latter school. It
seems unlikely, inasmuch as the child now resides
respondent's parents, in the Leribe district, as the respondent works
at Rustenburg Mine in the Republic of South Africa.
after the Court granted a rule nisi to the applicant in the matter,
on the 11th June, 1993, an affidavit of service was
filed on 6th
July, indicating service upon the respondent's mother at the
respondent's family home on 14th June, whereupon the
the deponent that the respondent had taken the child to the Republic
of South Africa. This has not been denied.
The applicant had filed a
summons in divorce seeking custody inter alia, on 9th June. That was
not served until 30th September.
Nonetheless, the respondent in June
1993 was well aware that the custody of the child was very much in
issue between the parties.
He had no right therefore to remove the
child from the jurisdiction, without the consent of the other parent.
Once he became aware
of court proceedings in the matter, any such
removal required the consent of this Court.
been informed from the Bar that the child is now within the
jurisdiction. Suffice it to say that I do not regard the behaviour
either party in taking possession of the child, as a deciding factor
in this application. Very often the tug-of-war involved
of the parties' love for the child, a love which could possibly be
better expressed in more positive measures.
remains that the child is of tender years, of an age when the course
of nature indicates a strong attachment to the mother,
the father. In the case of a little boy aged six, I consider that the
mother could only be deprived of custody where
she was an unfit
respondent has attempted to establish. He avers that she is living,
apparently in adultery, with another man. This the
claiming that it is a complete fabrication. I observe that the said
allegation was incorporated in a counterclaim
by the respondent in
the divorce proceedings. Mr. Mohapi for the respondent has now
informed the Court that the counterclaim is
a further allegation that the child, while living with his mother,
"was always threatened with unpleasant words".
allegation is obviously vague. It is denied by the applicant, again
as being a complete fabrication. If anything, an affidavit
headmistress of the Primary School, which
that the child was happy and doing well in his studies, supports the
it were proved that the applicant was now living in a stable
relationship with another man, I cannot see that that would,
claimed by the respondent, affect the morals of a six year old child.
Certainly it would not render the applicant unfit to
have custody of
her child. The respondent avers that his mother takes good care of
the child in his absence, but quite clearly
the claim of the mother
is superior to that of the grandmother.
interests of the child are the paramount consideration. I cannot but
see that the best interests of the child would be
beat served by
granting custody to his mother.
the application therefore and confirm the rule. There being, as Mr.
Ramodibedi submits, a presumption of community of property,
costs to the applicant.
at Maseru this 6th Day of December, 1993.
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