CIV/APN/158/86

IN THE HIGH COURT OF LESOTHO

In the Application of :

THERESIA MAKARA Applicant

CAMILLUS PHOLENG MAKARA Respondent

JUDGMENT

Delivered by the Hon. Acting Chief Justice
on the
12th day of June, 1986

The applicant is applying for an order;

(a) Directing the respondent to allow the
minor
children Motheba and Ntsepase to
attend applicant's graduation
ceremony

. at the University of Hull in Great Britain in July.
1986;

2. 
   Directing the respondent to sign the nece­
   ssary
   papers for the issue of passport to
   enable the children to get to
   Britain;

   
   

3. 
   Directing the respondent to pay the costs
   of this
   application.

   
   

It is common cause that the respondent and applicant are
husband and wife married by Christian rights on the 23rd August,
1974. There
are two children born of the marriage, namely, Motheba
and Ntsepase. There is a divorce case pending between the parties in
CIV/T/98/78.
By order of Court the custody of the two minor children

/of the

-2-

of the
marriage has been given to the applicant pendente lite.

In her founding affidavit the applicant deposes that she
is presently Senior Extension Educator at the National University of
Lesotho
and she obtained a Doctorate in Philosophy in Education

in October 1985 and she is to attend a graduation
ceremony at Hull

in in England in July, 1986. The children asked her to
take them to the

graduation ceremony in England and she promised to do
so. She avers that she has saved enough money to pay the fares of her
daughters
to attend her graduation ceremony. However, the respondent
refuses to allow them to go with her and will not make a letter
authorising
the Passport Office to issue them with passports or to
enter them in her passport. She feels that respondent's conduct is
unreasonable
as the four weeks trip in Britain would broaden the
horizon of the children and be in itself an education quite apart
from the inspira­tion
they might get in witnessing a postgraduate
ceremony. She has a permanent job at the National University of
Lesotho and has no desire
to leave Lesotho or to take the children
permanently out of the jurisdiction of this court.

The applicant has annexed to her affidavit a letter from
the Acting Registrar of the National University of Lesotho addressed
to the
Director of Immigration which confirms that the applicant is
an employee of the University and that she is to attend a graduation
ceremony at the University of Hull on the 11th July, 1986 and that
she will return to her work at the National University of Lesotho
after the graduation ceremony. He asked the Director to help her.

The respondent is strenously opposing this application
on the ground that the intention of the applicant is to take the
children out
of the jurisdiction of this court and so deprive him of
his rights of guardianship as the father permanently. In his opposing

/affidavit....

- 3 -

affidavit he avers that during the period of four years
that the applicant spent in Britain the children were in his custody
and were
living with him. During that period there developed an
'intimate association between himself and the children of which
association
the applicant is well aware. Since applicant's arrival in
Lesotho applicant has denied him reasonable access to the children
over
weekends. He denies that the applicant told him of her wish to
take the children to Britain for her gradua­tion ceremony as
there
is little or no communication between him . and the applicant.
He avers that if the children were as keen to go as the applicant
wants us to believe, they would have easily come to him to ask him to
allow them to go.

He futher avers that he has been reliably informed and
reasonably believes that the applicant has decided to work outside
Lesotho
and she has attempted without his knowledge and consent to
obtain passports for the children or to include them in her own
passport
but failed because the Immigration Office wanted her to
obtain his approval as the father of the children. This conduct of
the applicant
confirmed the information he had received. The
applicant knows that there are a number of mothers who after
finishing their studies
abroad have come to Lesotho to take children
and never came back. He has reasonable fear that the applicant wanted
to do the same
with his children. He has no knowledge as to whether
the applicant has made enough provision for his children's stay
abroad as well
as their safe return to Lesotho.

In her replying affidavit the applicant admits that she
went to the passport office to get information about the procedure
for including
children in her passport. She avers that she did not
have to get his permission in order to seek this information.

/As the

- 4 -

As the upper guardian of minors this Court must always
take into account the interests of the minors where the custodian
parent and
the non-custodian parent cannot agree. In the instant case
the custodian parent is going to attend a graduation ceremony in
England
at which a degree of Doctor of Philosophy in Education is to
be conferred upon her. The children have expressed their desire to go
with her and she has promised to do so. It seems to me that attending
a postgraduate graduation ceremony in England at which their
own
mother is going to receive a degree of Doctor of Philosophy in
Education is going to broaden their outlook and is part of their
education and it will make them aspire for very great things. I have
no doubt that they will enjoy themselves and it will be a holiday
they will never forget in their lives.

Not even the respondent has any doubt that the children
are going to benefit by their journey to England but his bear is that
the
applicant's intention is not to bring them back to Lesotho. The
issue which I have to decide is whether the fear is based on
reasonable
grounds. The fear is based on the fact that some mothers
who studied abroad came back and took their children and returned
abroad.
I do not know whether or not such mothers had permanent jobs
in this country. The applicant in this case is holding a very senior
post at the National University of Lesotho. She has not given any
notice to the University that she is resigning and remains on the
permanent staff. She is going to attend a graduation ceremony. I do
not think that the cases of those mothers referred to by the
respondent were similar to the applicant's case. The circumstances
surrounding her going to England show that she intends to come
back.

/Our law....

- 5 -

Our law is that the mother, as the custodian parent, is
entitled to have the children with her; to control their daily lives;
to decide
all questions relating to their education, training and
religious upbringing; to determine what homes or houses the children
may
or may not enter and with whom they may or may not associate (The
South African Law of Husband and Wife, 4th edition by H.R. Hahlo,
p.
463). As I have shown above attending the graduation ceremony in
England is itself education to the children and as such is a
matter
within the powers of the custodian parent. The respondent can stop
the custodian parent from exercising her right by showing
on a
balance of probabilities that the intention of the applicant is to
deprive him of his access to the children by taking them
out of the
jurisdiction of this Court. The respondent has failed to do so; his
fear is not based on reasonable grounds. The mere
fact that the
applicant made some inquiries at the Immigration Office about the
procedure as to how to include her children in her
passport or to get
them their own passports does not mean or indicate that she intends
to leave Lesotho permanently.

It was the duty of the respondent to disclose his source
of information that the applicant intends to work outside Lesotho.
The mere
allegation that there is reliable information and which he
verily believes, is not sufficient evidence in the face of
applicant's
denial and evidence that she has a permanent job at the
University and that she is going to receive her degree. She has a
genuine
reason to go to England.

The application is granted as prayed in terms of prayers
(a) and (b) of the Notice of Motion. With regard to costs I shall not
penalise
the respondent by making him pay costs because although his
fear is not based on reasonable grounds it does appear to be genuine.
Each party to bear its own costs.

- 6 -

J.L. KHEOLA
ACTING CHIEF JUSTICE.

12th June, 1986.

For Applicant - Mr. Maqutu
For Respondent -
Mr. Pheko.