CIV/APN/26/2004 CIV/APN/34/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:-
LIEPOLLO TSEKOA APPLICANT
and
LIKHETHO MOKHATHI RESPONDENT
JUDGMENT
Delivered by the Honourable Mrs Justice A.M. Hlajoane
on 2nd March, 2004.
The prayers sought in this Application were framed as follows: 1. That a rule nisi be issued returnable on the date to be determined by the above Honourable Court, calling upon the Respondent to show cause if any, why an order in the following terms shall not be made:
(a) That the Rules of this Honourable Court relating to notice and service of process be dispensed with on account of urgency.
(b) Respondent be directed to release to Applicant the temporary
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travelling permits/passports or any travelling documents issued in favour of Mara Mokhathi and 'Maleballo Mokhathi forthwith.
(c) Respondent be restrained and interdicted from interfering with the rights of MARA MOKHATHI and 'MALEBALLO MOKHATHI to attend school at St Gabriel's Independent School in any manner whatsoever other than by due process of law.
(d) That the custody of MARA MOKHATHI be given to the Applicant.
(e) That Applicant be given such further and /or alternative relief as this Honourable Court may deem just.
2. That prayers 1(a) & (b) operate with immediate effect as an interim interdict.
Before this case was proceeded with both Counsel were agreed that there be a consolidation with CIV/APN/34A/2004 where the present Respondent is the Applicant. Application for consolidation was accordingly granted.
The Applicant in that CIV/APN/34A/2004 Likhetho Mokhathi, was asking the Court to direct the Respondent, Liepollo Tsekoa to produce the two minor children born of the marriage namely Mara and 'Maleballo
Mokhathi immediately.
That the said minor children must continue attending school pending determination of CIV/APN/26/2004.
The main prayers in this Application are the release to Applicant of the temporary travelling documents issued in favour of Mara and 'Maleballo Mokhathi and that custody of Mara Mokhathi be given to Applicant.
The Applicant and the Respondent were husband and wife but their marriage was dissolved by a decree of divorce by this Court on the 11th November, 2000 in CIV/T/288/2000. The Respondent was awarded custody of Mara while the Applicant was awarded 'Maleballo's custody. Mara a boy born on the 25th February, 1995 and 'Maleballo a girl born on the 1st April, 1998.
Applicant is saying that, Mara had been living with the Respondent until 2002, when Respondent took him to Applicant's place to stay with her. According to the Applicant this happened after the Respondent got married to one Moretlo Litabe. But according to the Respondent Mara ended up staying with the Applicant by agreement of both parties of exchanging access of the two minor children. This happened after Applicant had told
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Respondent that 'Maleballo was lonely and thought the solution would be to allow them to stay over taking routine terms to avoid that loneliness and separation.
The two minor children had been attending school at SOS Nursery and SOS Primary School. The Applicant wants the Court to direct the Respondent to release to her the travelling documents for the two minor children as she wants to take the kids to Ladybrand at St Gabriel's Independent School. Respondent on the other side does not want the children to leave SOS which he considers to be one of the best schools in the country. Respondent contents further that it is not best for the children to attend school in the Republic of South Africa whilst there are still better schools in the country.
Applicant argues that the school in Ladybrand has a more advanced curriculum than SOS in that it offers Computer Studies whose importance cannot be overemphasized in this technological age.
Despite Respondent's denial that she does have resources at her disposal, Applicant has shown that she has not only enrolled the children in Ladybrand, but also, has resources to send them to such a school. Besides, her sister has also promised to contribute towards the children's schooling.
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The Respondent in his opposing papers raised the following points in limine
(i) Lack of urgency.
(ii) Unenforceable prayer.
(iii) Lack of averments of facts.
(iv) Improper affidavits.
(v) Breach of the Rules of Court.
The Respondent is saying that Applicant has not advanced any cogent reasons which call for an urgent relief. He is saying this because
Applicant allegedly paid the registration fees as early as 2nd December, 2003 and knew that the school in Ladybrand would be opened
on the 19th January, 2004. But Applicant sat back only to move this Application just to create urgency.
Unfortunately the Applicant did not bother to respond to the points in limine either in reply or in his heads of argument. Where there is no urgency the court is bound to dismiss the claim. But there is one main consideration which makes this case distinguishable, we are here talking about the welfare of the minor children. The Court in the exercise of its discretion is not going to lose sight of such an important consideration.
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Unenforceable Prayer
Respondent is saying that prayer (d) of the Notice of Motion is unenforceable in that this Court has already in the divorce proceedings awarded custody of Mara to Respondent. In the absence of any variation of the original order, which was granted after evidence was led, Applicant can not therefore be awarded custody of minor child Mara.
Respondent has also averred that the Applicant has not set out in his founding papers the facts upon which he relies for relief sought. It only came up in his replying affidavit that the Respondent is not a fit and a proper person. The Respondent was thus denied chance to respond to this allegation. We know that a party stands or falls by his founding affidavit. Frasers Lesotho vs Hata-Butle (Pty) Ltd 1999 -2000 LLR & LR 65.
Improper Affidavits
The supporting affidavit to the replying affidavit of Nthofela Mokhathi and of Maleshoane Mokhathi according to the Respondent have not been sworn to before a Commissioner of oaths. When this was brought to the attention of the Court, the Court took it upon itself to check on such affidavits in the Court's file, only to find that in fact those in the Court's file were sworn to before the Commissioner of Oaths. It was just a matter of having photocopied the last pages for the Respondent's file. It would have been
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something if it was the other way round.
Nthofela Mokhathi is the Respondent's real father. His affidavit shows that the proper person to look after the children is the Applicant who has always been engaged on permanent jobs. Unlike the Respondent whom he says since he completed his studies at Lesotho High School has never been employed on permanent basis by any establishment. He says even after his marriage, the burden of maintaining his family fell on the Applicant who then was employed at the Lesotho Bank. Nthofela even says at all material times he had been contributing towards the maintenance of the parties' minor children in order to alleviate Applicant's burden.
Maleshoane Mokhathi, who is the Respondent's sister also associated herself with the allegations made by his father, Nthofela Mokhathi to the extent that they relate to the Respondent.
Breach of the Rules of Court
Respondent here is saying that the order that was granted in favour of the Applicant on the 28th January, 2004 was improperly obtained.
Applicant applied for a rule nisi and the Respondent responded by opposing the granting of the interim order and immediately filed an answering affidavit. He says Applicant instead of setting the mater down as an opposed matter
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in terms of Rule 8(13) proceeded to obtain an order and thereafter filed his replying affidavit.
Whilst this was an improper procedure that was followed by the Applicant, the Court however still has a discretion to condone any proceedings in which the provisions of the High Court Rules are not followed, S.59 of the High Court Rules 1980.
It cannot be said that Applicant tried to make out his case in the replying affidavit. Prayer (d) clearly shows that Applicant is asking the Court to vary the custody order that was made in the divorce case. She has even attached the order for divorce in his founding papers. One might have thought that viva voce evidence would be needed to establish that the Respondent is not a fit and proper person to take care of the kids, particularly at their tender age.
We have been given affidavits by the Respondent's father and sister who both are in favour of custody being awarded to the Applicant. They have advanced reasons why they are saying that.
Because we are dealing here with the welfare of minor children, of paramount importance should be the children's best interests. The High
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Court being an upper guardian of all minors, in deciding who between the two parties must have custody of the minor children must undoubtedly consider the children's best interest.
It was stated in the case of Edge v Murray 1962 (3) S.A. 603 that, the Court can and will in appropriate cases vary its order in regard to matters pertaining to custody on good cause being shown. Respondent's father and sister have shown that Respondent is not a fit and proper person to look after the minor children as he is irresponsible. The fact that he has even married the second wife is also to be taken as another contributing factor. It is only the mother who can look after her children especially of tender age like Mara and 'Maleballo.
I also share the same sentiments with TroIIip J in Edge v Murray above
that,
"It is deplorable that the parties should allow their own implacable hostility towards one another to affect adversely the reasonable exercise of their respective rights of custody and access to the child."
This is moreso because such acrimony may have a detrimental effect on the children's own peace of mind and feeling of security. We have already been told as to where the fault lies.
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Parties are agreed that custody of Mara was awarded to Respondent and 'Maleballo awarded to Applicant. The fact of the matter now is that both minor children are now living with the Applicant though different reasons are advanced as to how they ended up being
together. Applicant is saying Respondent brought the child to her after he married a new wife. Respondent on the other hand is saying it was by agreement as Applicant had shown that 'Maleballo was lonely without his brother, Mara. Whatever the reason, what is obvious is that the children have to stay together. That coupled with who between the parties appear to be the better parent for the kids. Applicant appears to be the ideal parent.
Even where the parties may have agreed to share custody of the minor children, it has proved to be a legal impossibility where parties
stay in separation. Edwards vs Edwards 1960 (2) S.A. 524. This is because, the legal custody involves the privilege and responsibility
of taking certain decisions in regard to say, education of the child as in this case. Sharing such responsibility between two parties not living together would result in continuing possibility of a deadlock even over every triviality. Parental power belongs to both parents, and custody is an incident of such power. Custody gives the mother sole control over the person and education of the minor. Calitz vs Calitz 1939 AD 56.
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I have not considered the affidavit of Teboho Tsekoa as it was not attested to here in Lesotho yet it bears Lesotho Revenue Stamps. It is in breach of Oaths and Declarations Regulations 1964.
I have already shown that in the exercise of my judicial discretion I have in terms of Rule 59 of High Court Rules 1980 condoned all irregularities for the benefit of the minor children. I would not want to delay this matter any further.
The rule is confirmed with costs.
A. M. HLAJOANE JUDGE
For Applicant: Mr Mda
For Respondent: Mrs Lethola