THE HIGH COURT OF LESOTHO
In the Application of
LIKHABISO MOSAO ........Applicant
AUGUSTINUS MOSAO ... Respondent
Delivered by the Hon. Mr. Justice B.K. Molai
the 4th day of December,
The applicant seeks an order of this court directing,
pendent lite, the Respondent to desist from assaulting or
threatening her with violence, to maintain Thabiso Mosao in the sum
of M200 per
month pending the finalization of a divorce action she
has instituted against him and to pay costs of this application. The
intimated his intention to oppose this application.
Affidavits were duly filed by the parties.
In her affidavits applicant deposed that before she got
married to Respondent by civil rites in August, 1983, she had given
to a baby boy, Thabiso Mosao. The child was born in 1981 and
had been fathered by the Respondent. He was legitimated by their
On 26th August, 1987, the Respondent took her out to a
place called Qoaling where he assaulted and threatened to throw her
the car unless she chose to leave the matrimonial home, on her
own. On 27th August, 1987, applicant accordingly left the
home and went to live at a rented house, the locality of
which she did not wish to disclose to the court for fear that the
might follow and assault her.
2/ Well, if she ......
Well, if she wished this court to grant her the relief
she is seeking in proceedings of this nature, it is important that
takes the court into her confidence and discloses all
the material facts. Be that as it may, the applicant further averred
when she left the matrimonial home, the minor child, Thabiso,
who was about 6 years old remained in the custody of the Respondent.
Because of its tender age, the child was in need of her care. The
Respondent who was running a lucrative business was able to maintain
the child at the rate of M200 per month. Wherefore, applicant prayed
for the relief as aforesaid,.
Respondent conceded that he had fathered the minor
child, Thabiso Mosao, before he and the applicant entered into a
in August, 1983. Prior to the civil marriage he and
the applinant had, however, been married in accordance with Sesotho
Law and Custom since 1979. In his contention, the child, Thabiso
Mosao was legitimate at birth. The Respondent denied, therefore,
averment that the child Thabiso Mosao was legitimated
by the subsequent civil marriage.
It is to be observed that although the Respondent
claimed to have been married to applicant according to Sesotho Law
and Custom since
1979 that was denied by the apolicant who averred
that she only got married to him after the Respondent had divorced
his former wife.
In support of hei denial, applicant attached
annexure "AA" an order of this court dated 31st August,
1962 by which Respondent's
civil marriage to his previous wife was
resolved If prior to 31st August, 1982 he was civilly married to
another woman the Respondent
could not, in my view, have been
lawfully married to the applicant for the simple reason that one of
the consequences of a civil
marriage is that there will be one
husband and one wife to the exclusion of all others. I would,
therefore, reject as false Respondent's
version that since 1979 he
was married to the applicant customarily and accept as the truth the
applicant's story that she was not.
3/ The respondent ..........
The Respondent denied the applicant's story
that on 27th August, 1987 she had to abandon the
matrimonial home because he had, on 26th August, 1987 taken her out
to Qoaling where
he assaulted and threatened to throw her out of the
car unless she chose to leave the matrimonial home on her own.
him, the truth of the matter tuns that on 26th August,
1987 a dispute arose between him and the applicant over his money
to M7,000 which she had deposited into her secret bank
account without his approval or knowledge. It was as a result of
that, on 27th August,1987 and whilst he was at work, the
applicant took her personal belongings, left the matrimonial home and
a house in Maseru East where she was current staying.
As proof of his averment that applicant had stealthily
deposited the amount of M7,000, Respondent attached annexure "A"
an order of this court declaring the secret deposit of the M7,000
into her bank account null and void and directing the bank to
release the money to him. It is significant to note that although
she avers that Respondent has assaulted
her, applicant does not seem
to have reported to the police nor approached a doctor for medical
treatment,. In my view, if it were
true that the Respondent had
seriously assaulted her as she wants this court to believe, the
applicant would have either reported
to the police or went to a
medical doctor for treatment. She has not. That being so, I take the
view that the balance of probabilities
favours the Respondent's
version that he neither assaulted nor in any way threatened to harm
the applicant who left the matrimonial
home merely because there was
a dispute over her secret deposit of the amount of M7,000. I am,
prepared, therefore, to reject applicant's
story as false and accept
as the truth the Respondent's version on this point.
4/ On the question .....
the question of custody of the minor child, Thabiso, it is to be
remembered that this court is the upper guardian of all children.
concede that because of the age of the child, Thabiso, the applicant
is better equipped to afford him a motherly tender care which
needs. However, the court should not loose sight of the facts that
the child is already of school going age, the Respondent is
admittedly able to maintain him adequately and he is transporting him
to and from school. It may also be mentioned that the applicant
working woman who naturally cannot claim to have much time to look
after the child.
Regard being had to all these factors, it seems to me
that the interests of the child, Thabiso, will best be served by
in the care of the Respondent at the matrimonial home
rather than uproot him to the applicant's rented house.
It has been argued that as he was fathered
by the Respondent at the time he was still lawfully
married to another woman and therefore, incapable of marrying the.
the child, Thabiso was at birth, not illegitimate
but adulterine. He could not, therefore, be legitimated by the
marriage between the applicant and the Respondents.
It seems to me that Thabiso is, as of now,
happily living with the Respondent who, rightly or wrongly, regards
him as his legitimate son. I consider it to be in
the best interest
of this child to leave the question of whether or not in the
circumstances of this case, he was legitimated by
marriage of his parents to the final stage of the divorce
5/ That being so,......
That being so, the question of an order directing the
Respondent to maintain the child, Thabiso, falls away at least for
being. Both parties have told the court, and rightly so in
my opinion, that at this stage neither of them insists on the costs
In the premises, I would dismiss this application with
no order as to casts.
B. K. MOLAI, JUDGE.
4th December, 1987.
for Applicant Mr. Hlaoli Far Respondent Mr. Nthethe.
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