LesothoLII Editor Note: Certain private details have been removed from the public version of this judgment in accordance with the law and to protect the identity of persons.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C of A (CIV) No. 29/2011
In the matter between
CORAM: SCOTT, JA
HEARD: 07 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
Illegitimate child – Father seeking access – Test whether access is in child’s best interest.
 The appellant and the respondent became involved in a romantic relationship in 2001. The relationship subsisted until 2010. In 2008, a baby boy, K., was born. It is common cause that the appellant is the father of K.. Both before and after the birth of the child, the parties had cohabited on a regular basis, with the appellant frequently sleeping at the respondent's home and having regular and frequent contact with his son in the same way as any married, working father might have. He also contributed the fairly substantial amount of M3400 per month toward K.'s upkeep.
 In January 2010, the respondent informed the appellant that she wanted to terminate the relationship. She told him that he was no longer free to sleep at her home as he had been accustomed to do. However, she does not seem to have endeavoured to curtail his access to K., and the appellant continued to spend a substantial amount of time with his son, fetching him from pre-school when the respondent was at work, taking him for holiday trips and generally indulging in the sort of father-son contact to which married fathers are accustomed. Gradually, during the course of the year, the respondent imposed restrictions on the access arrangements and, in about August 2010, she informed the appellant that he should stop contributing maintenance for K.. It emerges from the papers that the respondent's explanation for this rather curious decision was that the appellant was using his maintenance to "control her life".
 The situation deteriorated further and, at the end of the year, the respondent told the appellant that she had become involved in a serious relationship with a man from France whom she intended to marry. In December she travelled to France with K. and her prospective fiancé.
 Upon learning of these developments, and pursuant to the rather tense and unsatisfactory situation which had developed with regard to the access arrangements, the appellant approached the High Court for assistance in the form of an order defining access. The order he sought was detailed and elaborate and, because it has been overtaken by events, it is not necessary to set it out here. His application was opposed. The respondent candidly told the court that she is not opposed to K.'s father taking part in his upbringing, but the situation was that she would be going to live with her fiancé in France and that her husband would probably adopt the child. She pointed out that some of the access sought by the appellant would involve very substantial expense – the cost of travel from France to Lesotho and back being one example. She indicated that there had been problems during the previous year with regard to the access arrangements, many of which had been of the appellant's doing. However, I think it is perfectly fair to say that there is a general theme in her answering affidavit captured in a sentence from para 14.1, viz :
"I admit that a child has a right to know its father and it is in the best interest of the child that such child should bond with its father."
Her affidavit ended with the comment that the court should vary or dismiss the prayers for defined access to the extent that the court was satisfied that the prayers were not in the best interests of the child.
 It is apparent from what I have set out above that there was a good deal of common ground between the parties which might profitably have been built on by the court a quo. Nevertheless, the learned judge chose to adopt what I can only describe as a regimented (and archaic) approach to the task before him. After referring to certain judgments in the late 1980,s and early 1990's in which conservative views had been expressed about the desirability of allowing the father of an illegitimate child to have access to the child, the learned judge said:
"In the present case the applicant says he wants to 'strengthen the child's ties with his father'. As in the (quoted cases) there is no allegation or suggestion that the custodian mother does not properly care for the child or is guilty of any untoward conduct that could merit interference with her custodial rights."
"The father of an illegitimate child has no right of access to its (sic) child unless there are strong and compelling reasons for granting access. If it is felt that the law should change in this regard, it is for the legislature to decide that and not for the courts. . . . . I regard it as undesirable and therefore not in the best interests of the child that it should periodically shuttle between parents who do not live together and will therefore have different influences on a child, especially one of tender age. I believe it is inevitable that each of the parents will [view] (sc "vie"] for ascendancy of their own stamp of parenthood on the child leaving it emotionally confused. The present case, with its recriminations has all the ingredients of such a situation." (My italics).
Although he made mention of the "best interests of the child", it is apparent that the learned judge made no objective attempt to determine what those interests comprised in the matter before him, and resorted to expressing his own views on the desirability or otherwise of granting access. His reference to the child's interests was clearly only lip service to a principle which has historically been stipulated as the criterion, but was not often applied in the case of illegitimacy.
On this basis he dismissed the application with costs.
 The quoted passage displays a disturbing rash of misdirections, not the least of them being that the learned judge appears to have been unaware of the substantial strides made in the last two decades towards focusing all access decisions on the interests of the child and not those of the parents. The principle that access is as much (if not more of) an obligation than a right has come clearly to the fore. Sections 18 and 19 of the Lesotho Constitution 1993 have been invoked to stress that equality of treatment and prohibition of discrimination apply as much to fathers of illegitimate children and, of course to the children themselves, as they do in other areas of society. The International Convention on the Rights of the Child was ratified in 1990 and adopted by Lesotho in March 1992. Article 3 of that Convention provides that
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be a primary consideration."
Similar prescriptions are to be found in paragraph 4(1) of the African Charter on the Rights and Welfare of the Child, which took effect in this country on 29thNovember, 1999.
 Apart from these quasi statutory provisions, there are recent decisions in the South African courts which have pointed the way to an adjustment of approach and thinking in these matters. In T v M 1997 (1) SA 54 (A) at p 60, Scott JA said:
"Generally speaking, I think, it can be accepted that once a natural bond between parent and child (whether legitimate or illegitimate) has been established it would ordinarily be in the best interests of the child that the relationship be maintained, unless there are particular factors present which are of such a nature that the welfare of the child demands that it be deprived of the opportunity of maintaining contact with the parent in question."
(See also the same learned judge's judgment in this court in S. Makatse v N Makatse (unreported) C of A (CIV) No. 19/10 at para 10).
 From the manner in which the learned judge a quo expressed himself in his judgment it seems as if all the above developments had somehow passed him by. The circumstance that both parties before him were ad idem that the appellant had established a bond with K. and that there was no dispute about the desirability of maintaining that bond in the child's interests, formed a sound base for him to proceed with defining access arrangements which were as reasonable as possible in the circumstances. Yet he apparently ignored these factors in favour of an approach which can, at best, be described as out of date.
 Before us, the parties were agreed that the order of the court a quo should not stand. There was some discussion about the problems associated with this Court attempting to reach a reasonably acceptable solution, given the lack of pertinent information and the fluidity of the respondent's current situation (she intends to emigrate to France with K.). But the parties agreed that an attempt to circumvent these difficulties must be made and that it would suffice, for the present, if this Court would simply make an order that the appellant is entitled to reasonable access to K. and leave it to the parties to negotiate in more detail what such reasonable access would entail. Judging from the attitude of the parties before us, and since they are each plainly conscious that it is imperative for them to put K.'s interests first, we trust that they will reach a mutually acceptable arrangement without too much debate. They have also agreed that there should be no order as to costs in either court.
 (a) The appeal is upheld.
(b) The order of the high court is set aside and the following order substituted therefor:
"It is declared that the Applicant is entitled to have reasonable access to the parties' minor child, K., a boy, born on [edited out] 2008."
(c) There will be no order as to costs either in this court or in the court a quo.
JUSTICE OF APPEAL
I agree _____________________________
JUSTICE OF APPEAL
I agree _____________________________
For Appellant: Adv. T.J. Mokoko
For Respondent: Adv. N.G. Thabane
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