CIV/APN/163/2000
IN THE HIGH COURT OF LESOTHO
In the Matter Between:
TSEPO SEFEANE APPLICANT
And
'MAMPHELI SEFEANE RESPONDENT
RULING
Delivered by the Honourable Madam Acting Justice N Majara on 11th May 2005
On the 11th May 2005, I gave a ruling in this matter and promised that full reasons would follow. I now proceed to give my reasons. Applicant herein approached this court on an urgent basis for an order in the following terms:
That a Rule Nisi be issued calling upon the Respondent to show cause why the following prayers shall not be made absolute.
Dispensing with the normal modes of service due to the urgency of this matter.
Respondent to be arrested and brought to Court to found jurisdiction.
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Committing Respondent to prison for contempt of Court.
Ordering the Respondent to pay the costs of this application.
Granting Applicant such further and/or alternative relief.
2. That prayer 1 (a) and (b) should operate with immediate effect.
On the 20th April 2005, Mr Matooane appeared before me on behalf of the applicant and moved the application. Having heard Counsel for applicant, the Court granted the application and the rule was made returnable on the 2nd May 2005.
On the 2nd May 2005, Respondent was duly brought before the court and her Counsel, Mrs Kotelo applied for the matter to be postponed until the next day to enable respondent to consult with her former attorney of record in the divorce proceedings and to ask him to file an affidavit in support of her opposition of the application. This was because the
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present application came about as a result of that divorce matter. The matter was duly postponed after respondent handed in her passport as security for her attendance until the matter could be finalized.
Two days later, the matter proceeded. A brief background to this application is that, on the 11th December 2001, a deed of settlement in the divorce proceedings between the two parties herein was handed in and made an order of court. Amongst the terms of the agreement as appears on the said deed was that custody of the minor children was granted to plaintiff (applicant herein) with reasonable access to defendant (respondent herein).
It was on the basis of this agreement that applicant approached the court for relief. In his founding affidavit as stated in paragraphs 6, 7 and 8 respectively, applicant averred that during December 2004, the said children visited respondent in the Republic of South Africa and only Mpheli was returned to his custody by respondent. Kori was kept in
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the custody of respondent despite the fact that he was supposed to continue with his schooling here in Lesotho. Applicant went on to show that he had instituted civil proceedings in the Republic of South Africa to try and regain custody of the said child and that such are still pending.
In her opposing papers respondent denied being a party to the deed of settlement and stated that she knew nothing about the forged
signature which she averred, was not hers. She showed that she saw the deed for the first time on the 30th April 2005 when the deputy sheriffs caused her to be arrested. She also invited the court to direct that her former attorney of record . Mr Mafisa, should come and enlighten the court with regard to the signature that appears on the deed and to whom the signatures of the witnesses therein belonged. It was also respondent's case that this matter was not urgent as applicant himself alleged that she did not return the child in January yet did nothing since then until in April when he heard of her sister's death.
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After listening to both sides, I directed that Mr Mafisa be issued with a subpoena so that he could come and assist the court with regard to the signature that appeared on the deed of settlement as being that of respondent and the other issues that respondent was unhappy about.
Before dealing with the legal position, I wish to state that this being a matrimonial dispute involving the interests of a minor child, I dealt with the matter in a somewhat informal manner and kept on inviting both counsels to assist the court so that the court could arrive at a speedy solution regard also being had to the fact that respondent is currently employed in the Republic of South Africa, and had to get back to work.
After two attempts, Mr Mafisa duly appeared before the court and after I gave him a brief background of the matter, I asked him questions with regard to the deed of settlement and the disputed signatures thereon. In his sworn testimony, Mr Mafisa gave the court a background to this matter and without necessarily repeating the whole of his evidence suffice it to say
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that he conceded that he could not say with certainty that the signature on the deed of settlement was that of respondent.
He went on to explain that after lengthy negotiations with Mr Matooane who was still counsel for applicant in the divorce proceedings, it was eventually agreed that the parties would settle the matter out of court with the terms of agreement as they appear in the deed of settlement, a copy of which was attached in the court file.
He proceeded to inform the court that his client, (respondent herein) was initially not happy with the term awarding custody of the minor children to applicant. However, ultimately he, together with the help of respondent's late sister, convinced her to agree to this term for the reason that as he said, respondent might not have been awarded custody as she was already residing outside the jurisdiction of this court and the court would not be able to monitor the minor children's interests.
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It was also Mr Mafisa's testimony that due to the numerous times that respondent had been shuttling between the two countries, respondent
gave her sister permission to sign the deed of settlement on her behalf and that she immediately left on the day the matter was
proceeding even before it was finalized.
When the deed was presented before the court, applicant had duly signed the deed and a signature was appended on behalf of respondent as per her permission. This evidence was not challenged in any way and the Court thus had no reason not to accept it as it stands.
Against this background, the court had to determine whether respondent was indeed in contempt of court as per applicant's claim. Having looked at the case and the circumstances surrounding it as a whole, the court found that indeed, a deed of settlement which was purportedly signed by both parties was made an order of this court on the 11th December 2001.
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Secondly, the court found that the claim by respondent that she did not sign the said deed as per both her averments and Mr Mafisa's viva voce evidence is a fact which had not been challenged and the court therefore accepts it. However, when taking into account the facts of the case as put before the court in their totality, the court made the following findings; That during the divorce proceedings, bona fide negotiations were held between the parries with the result that an agreement was reached and a deed of settlement thereof drawn and signed. Applicant was entitled to assume that applicant as per the signed deed, was signifying her intention to be bound by the terms of the deed. See the case of George v Fairmead (Pty) Ltd 1958 (2) SA 465 and other authorities cited therein.
Whilst the court accepts that the other signature was not appended by respondent in person, it however found that on the unchallenged
evidence, it was signed on her behalf by her late sister. Over and above that, by her conduct, respondent acquiesced to the terms of the said deed of settlement, a fact
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which is reinforced by her failure to bring evidence to challenge the fact that since December 2001 (the time of the divorce) up till January 2005 the minor child was in the custody of applicant as per applicant's averments. In addition, respondent failed to show what according to her, the position was during the said period.
This being the case, the court could only draw an inference that applicant's version as supported by Mr Mafisa, respondent's former
attorney of record, is true, to wit, in principle, respondent had agreed to the terms of the deed of settlement albeit grudgingly. Even assuming that as per her version, respondent never saw the deed until at the time of her arrest, she does not seem to have taken any steps after the divorce to find out what the outcome was, especially since as per Mr Mafisa's evidence, he had occasion to speak with her on the phone subsequent to the deed of settlement being made an order of court, even though the consultation was only in relation to the clause concerning division of the joint estate. This can only lead to the court concluding that it is because
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she was already in full knowledge of and agreeable to the other terms of the deed of settlement.
In my opinion, the rest of the averments which make reference to applicant's subsequent marriage inter alia, cannot be used as evidence advancing respondent's case any further. If respondent had any change of heart subsequent to the court order, she ought to have sought legal recourse such as applying for variation of the terms, instead of acting in the manner that she did which brought about the unfortunate incident of her being arrested at the time when she was supposed to be mourning her late sister's death.
It is for these reasons that I find that on the facts, applicant has made out his case on a balance of probabilities and as such, the court grants his application as prayed with costs.
Respondent is hereby ordered to restore custody of the minor child, Kori to applicant with immediate effect.
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It is also ordered that the passport which respondent handed in as security should be returned to her only after she has purged her contempt by restoring custody to applicant.
N. MAJARA
ACTING JUDGE
For Applicant : Mr Matooane
For Respondent: Mrs Kotelo
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