HIGH COURT OF LESOTHO
MAPOLO MAFATA 1st RESPONDENT
COMMISSIONER OF POLICE 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
BY THE HONOURABLE MRS JUSTICE K.J. GUNI ON THE 10™ MAY 2006
appellant in this matter approached this court by way of an ex-parte
and urgent application. On the 10th March 2006 he sought
a rule nisi in the following terms:-
the Rules of this Honourable Court relating to notice and service of
process be dispensed with on account of urgency.
Respondent be restrained and interdicted from removing the minor
child born of the parties: POLO MAFATA out of the jurisdiction
the above Honourable Court to the United Kingdom in any manner
whatsoever other than by due process of law.
Respondent be directed to restore or cause to be restored to
Applicant the passport issued in favour of POLO MAFATA forthwith.
Respondent be directed to cause officers subordinate to her to
execute this order and prevent 1st Respondent from removing
MAFATA from the jurisdiction of this Honourable Court.
Respondent be ordered to pay costs of this application only in the
event of contesting same.
Applicant be granted further and/or alternative relief as this
Honourable Court may deem just.
Prayers 1 (a), (b), (c), and (d) operate with immediate effect as an
interim court order so obtained was served together with the
accompanying pleadings, to all the respondents, the very same day
was issued. Looking at the return of service filed of record, it
becomes clear that the 1st Respondent who was
with the processes at their matrimonial home with the applicant was
shocked, annoyed and surprised.
angrily threw away the papers just served upon her. She immediately
protested that she is not leaving for United Kingdom on
March 2006 as alleged.
the 1st Respondent has filed opposing papers to resist the
confirmation of that rule nisi. The other two respondent
filed any opposing papers. The Deputy Sheriff was accompanied by two
policemen when he went about effecting service of
the processes upon
the Respondents. That shows this court that the 2nd and 3rd
Respondents are ready, willing and prepared to obey
the court order
which may be made by this court in this matter.
OF THE TWO CONTESTING PARTIES
appears from the papers filed of record, the two parties are a
husband and a wife. The applicant and the first respondent married
each other civilly and in community of property on the 27th December
2003. Their marriage still subsists. As appears in their papers
of record, they still live together as husband and wife at
KHUBETSOANA HA MABOTE.
no intention to separate de facto or de jure. They have no intention
to divorce. They have one minor child -POLO who is
about four (4)
applicant works here in Maseru at BEDCO as a corporate planner. He
resides at their matrimonial home at KHUBETSOANA HA MABOTE.
respondent is a nurse by profession. She has been working at COVENTRY
in ENGLAND since June 2004. She came back to LESOTHO,
on a short
leave on the 10th January, 2006.
parties have one minor child. Presently this minor child attends
LIVING AND LOVING PRE-SCHOOL at KHUBETSOANA where both her
now live. Attached to the applicant's replying affidavit, are two
copies of her school reports -marked Annexures RM1 and
2. The period
covered by the two school reports is when this minor child was three
and half (3 1/2) years old. The two reports
show this court that the
minor child is a very happy child. She is doing extremely well at
school. Neither the mother nor the father
have any complains against
the pre-school or the education that is available to her at that
OF THE MINOR CHILD
no application before this court for the custody of the said minor
child. The father and the mother, in this case being
and 1st respondent have, naturally the joint custody. The father and
the mother live together with their minor child.
circumstances the question of the custody of the minor child does not
arise. The guardianship together with the custody
of the minor child
vest in the parents of the said minor child. Of the two parents, the
father is the one who exercise the right
of guardianship over the
child. THOMPSON V THOMPSON 1946 CPD 231. The applicant herein is not
challenged in anyway in the exercise
of his right and\or duty of
guardianship over his daughter. He is the one probably who chose the
school the minor child attends.
The parties agree that his parenting
skills are not questionable.
parents of the minor child, the applicant and his wife - the 1st
respondent must have discussed the issue of schooling of their
daughter. As a couple they must also have discussed and will continue
to discuss their future plans in respect of themselves and
respect of their minor child. Now that they have a child their future
plans take cognizance of the future of the minor
perusal of the papers filed of record, reveals that they may not have
adequately open channels of communications at all times.
have discussed and made decisions regarding their future. For example
the 1st respondent took up the job in ENGLAND after
they (herself and
her husband) have considered carefully that it will be in their
family's interest to do so. This young couple
are individuals with
separate and independent minds. True, they may agree on certain
things but when they disagree, is not a crime.
expected that as individuals they will at times hold different points
of view from each other. It is also normal to have a
change of mind.
As the saying goes, " It is a wise man or woman who changes his
or her mind." Changing previously held
position does not make
one a liar unless one pretends that he or she never previously held
the position in question. For example
when the 1st respondent went to
work in the UNITED KINGDOM, it was their joint decision. When she
returned be it for good or short
leave, it was also their decision
together as one.
options were discussed and considered by these parties for the
betterment of their family. The applicant sent his curriculum
to the 1st respondent in order that she arranges for his coming to
ENGLAND to work there.
tasked to secure employment for him. That did not happen despite the
parties' good intentions. They were trying to bring
the members of
their family together. It appears that it was and perhaps still is
their greatest wish to maintain their family
unit in tact and
together. The 1st respondent was asked and encouraged to further her
studies and discontinue her nursing job.
Following that advise the
1st respondent applied for and obtained a place to study at the
UNIVERSITY OF ORANGE FREE STATE. I have
a definite impression that
these two individuals are very much alive to the vicissitudes of
their fortunes and they are doing their
level best not to be found
wanting. At all times they seem to be up and going with various
the 1st respondent's back the applicant approached this court and
obtained the rule nisi whose confirmation is presently
have pointed out earlier on that it seems the channels of
communication between these two parties are sometimes blocked.
the blockade, naturally one wonders what the other is up to or is
actually doing. This applicant alleges that the 1st respondent
making preparations to take their minor child along with her when she
leaves for UNITED KINGDOM on the 13th March 2006. He made
bare allegation without anything to support it.
on to claim that by seeking to uproot the minor child from their
joint home and familiar environment, the 1st respondent
is not acting
in the best interest of the child. These are bare unsupported
respondent denies that she is leaving for UNITED KINGDOM on the 13th
March 2006. She was not pleased when she was served
restraining order when in fact she was not leaving as alleged. The
applicant avers that he is against the 1st respondent's
thereto. The 1st respondent denies that the decision to take the
minor child to UNITED KINGDOM was hers. She alleges that
there was a
family meeting which resulted in the re-establishment of the channels
of communication between them.
question of the minor child's removal from LESOTHO to UNITED KINGDOM
was made by them together. It is not unilateral. Applicant
not in so many words claim that the 1st respondent made a unilateral
decision to remove the minor child out of LESOTHO.
He simply fears
that such a decision is going to be made.
respondent avers that the decision has already been made. The 1st
respondent avers that the decision has been made and made
applicant or at least he is part and parcel of the family decision
already made to take the minor child out of LESOTHO.
The question is
whether or not the decision to take the minor child to UNITED KINGDOM
was made? That issue remains unsolved.
point of dispute is that it will not be in the interest of the minor
child to go with her mother to UNITED KINGDOM. The
denies this. Although the 1st respondent admits that the applicant's
parental care cannot be put to question she
however qualifies it as
lacking in the nurturing that the mother can provide to her child.
the minor child attends a satisfactory pre-school, there is not good,
sufficient, and appropriate after school care while
the applicant is
at work the person who collects the minor child from school and who
is supposed to take care of her till the father
comes home is
alcoholic. She denies that But I cannot accept that denial because
there is an affidavit of the shebeen queen from
that person is served with alcoholic drinks. That nanny is said to be
smelling alcohol in her breath all the
time. She denies that In the
face of these disputes this application cannot succeed, ROOM HIRE
LTD V JEPPE STREET MANSIONS (PTY) LTD 1949 (3) SA 1155.
application is dismissed. There is no order of costs.
Plaintiff : Mr. Mda
Respondent : Mr. Macheli
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