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