IN THE HIGH COURT OF
In the matter between;
RANTLE MAFATA PLAINTIFF
MOTLALANE MAPOLO MAFATATHE COMMISSIONER OF
POLICETHE ATTORNEY GENERAL
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 10TH MAY 2006
The appellant in this matter approached this court by
way of an ex-parte and urgent application. On the 10th
March 2006 he sought andobtained a rule nisi in the following
terms:-a) That the Rules of this Honourable Court relating to
and service of process be dispensed with on account of
Respondent be restrained and interdicted from removing
the minor child born of the parties: POLO MAFATA
out ofthe jurisdiction of the above Honourable Court to
theUnited Kingdom in any manner whatsoever other than bydue
process of law.
c) 1st Respondent be directed to restore or
cause to be
restored to Applicant the passport issued in favour
ofPOLO MAFATA forthwith.
d) Second Respondent be directed to cause officers
subordinate to her to execute this order and prevent
1stRespondent from removing POLO MAFATA from
thejurisdiction of this Honourable Court.
e) 1st Respondent be ordered to pay costs of
only in the event of contesting same.
f) That Applicant be granted further and/or alternative
this Honourable Court may deem just.
-2-That Prayers 1 (a), (b), (c), and (d) operate
with immediateeffect as an interim interdict.
The interim court order so obtained was served together
withthe accompanying pleadings, to all the respondents, the
verysame day it was issued. Looking at the return of service
filedof record, it becomes clear that the 1st
Respondent who was
served with the processes
at their matrimonial home with theapplicant was shocked, annoyed
She angrily threw away the papers just served upon her.
Sheimmediately protested that she is not leaving for
UnitedKingdom on the 13th March 2006 as alleged.
Nevertheless, the 1st Respondent has filed
opposing papers toresist the confirmation of that rule nisi. The
other tworespondent have not filed any opposing papers. The
DeputySheriff was accompanied by two policemen when he wentabout
effecting service of the processes upon the Respondents.That
shows this court that the 2nd and 3rd
Respondents areready, willing and prepared to obey the court
order which maybe made by this court in this matter.
1. STATUS OF THE TWO CONTESTING PARTIESAs
appears from the papers filed of record, the two parties area
husband and a wife. The applicant and the first respondentmarried
each other civilly and in community of property on the27th
December 2003. Their marriage still subsists. As appearsin their
papers filed of record, they still live together ashusband and
wife at KHUBETSOANA HA MABOTE.
They have no intention
to separate de facto or de jure. Theyhave no intention to
divorce. They have one minor child POLO who is about four (4)
2. WORK PLACE The applicant works here in
Maseru at BEDCO as a corporateplanner. He resides at their
matrimonial home atKHUBETSOANA HA MABOTE. The 1st
respondent is a nurse byprofession. She has been working at
COVENTRY in ENGLANDsince June 2004. She came back to LESOTHO, on
a shortleave on the 10th January, 2006.
3. THE MINOR CHILDThe parties have one minor
child. Presently this minor childattends LIVING AND LOVING
PRE-SCHOOL at KHUBETSOANAwhere both her parents now live.
Attached to the applicantsreplying affidavit, are two copies
of her school reports marked Annexures RM1 and 2. The period
covered by the twoschool reports is when this minor child was
three and half (3½)years old. The two reports show this
court that the minor childis a very happy child. She is doing
extremely well at school.Neither the mother nor the father have
any complains againstthe pre-school or the education that is
available to her at thatschool.
4. CUSTODY OF THE
MINOR CHILD There is no application before this court for the
custody of thesaid minor child. The father and the mother, in
this case beingthe applicant and 1st respondent have,
naturally the jointcustody. The father and the mother live
together with theirminor child.
In those circumstances the question of the custody of
theminor child does not arise. The guardianship together with
thecustody of the minor child vest in the parents of the said
minorchild. Of the two parents, the father is the one who
exercisethe right of guardianship over the child. THOMPSON
VTHOMPSON 1946 CPD 231. The applicant herein is notchallenged
in anyway in the exercise of his right and\or duty ofguardianship
over his daughter. He is the one probably whochose the school the
minor child attends. The parties agreethat his parenting skills
are not questionable.
As parents of the minor child, the applicant and his
wife the1st respondent must have discussed the
issue of schooling oftheir daughter. As a couple they must also
have discussed andwill continue to discuss their future plans in
respect ofthemselves and also in respect of their minor child.
Now thatthey have a child their future plans take cognizance of
thefuture of the minor child.
The perusal of the
papers filed of record, reveals that they maynot have adequately
open channels of communications at alltimes. But they have
discussed and made decisions regardingtheir future. For example
the 1st respondent took up the job inENGLAND after
they (herself and her husband) haveconsidered carefully that it
will be in their familys interest to doso. This young couple
are individuals with separate andindependent minds. True, they
may agree on certain thingsbut when they disagree, is not a
It is expected that as individuals they will at times
holddifferent points of view from each other. It is also normal
tohave a change of mind. As the saying goes, It is a wise
manor woman who changes his or her mind. Changing
previouslyheld position does not make one a liar unless one
pretends thathe or she never previously held the position in
question. Forexample when the 1st respondent went to
work in the UNITEDKINGDOM, it was their joint decision. When she
returned be itfor good or short leave, it was also their decision
Various options were discussed and considered by these
partiesfor the betterment of their family. The applicant sent
hiscurriculum vitae to the 1st respondent in order
that shearranges for his coming to ENGLAND to work there.
She was tasked to secure
employment for him. That did nothappen despite the parties
good intentions. They were tryingto bring the members of their
family together. It appears thatit was and perhaps still is their
greatest wish to maintain theirfamily unit in tact and together.
The 1st respondent was askedand encouraged to further
her studies and discontinue hernursing job. Following that advise
the 1st respondent appliedfor and obtained a place to
study at the UNIVERSITY OFORANGE FREE STATE. I have a definite
impression that thesetwo individuals are very much alive to the
vicissitudes of theirfortunes and they are doing their level best
not to be foundwanting. At all times they seem to be up and going
Behind the 1st respondents back the
applicant approached thiscourt and obtained the rule nisi whose
confirmation is presentlycontested. I have pointed out earlier on
that it seems thechannels of communication between these two
parties aresometimes blocked. During the blockade, naturally
onewonders what the other is up to or is actually doing.
Thisapplicant alleges that the 1st respondent is
making preparationsto take their minor child along with her when
she leaves forUNITED KINGDOM on the 13th March 2006.
He made just thisbare allegation without anything to support it.
He goes on to claim that
by seeking to uproot the minor childfrom their joint home and
familiar environment, the 1strespondent is not acting
in the best interest of the child. Theseare bare unsupported
5. DISPUTED FACTSThe 1st
respondent denies that she is leaving for UNITEDKINGDOM on the
13th March 2006. She was not pleased whenshe was
served with a restraining order when in fact she wasnot leaving
as alleged. The applicant avers that he is againstthe 1st
respondents return thereto. The 1st respondent
deniesthat the decision to take the minor child to UNITED
KINGDOMwas hers. She alleges that there was a family meeting
whichresulted in the re-establishment of the channels
ofcommunication between them.
The question of the minor childs removal from LESOTHO
toUNITED KINGDOM was made by them together. It is notunilateral.
Applicant too does not in so many words claim thatthe 1st
respondent made a unilateral decision to remove theminor child
out of LESOTHO. He simply fears that such adecision is going to
The 1st respondent avers that the decision
has already been
made. The 1st
respondent avers that the decision has beenmade and made by the
applicant or at least he is part andparcel of the family decision
already made to take the minorchild out of LESOTHO. The question
is whether or not thedecision to take the minor child to UNITED
KINGDOM wasmade? That issue remains unsolved.
Another point of dispute is that it will not be in the
interest ofthe minor child to go with her mother to UNITED
KINGDOM.The 1st respondent denies this. Although the
1st respondentadmits that the applicants parental
care cannot be put toquestion she however qualifies it as lacking
in the nurturingthat the mother can provide to her child.
Although the minor child attends a satisfactory
pre-school,there is not good, sufficient, and appropriate after
school carewhile the applicant is at work the person who collects
theminor child from school and who is supposed to take care
ofher till the father comes home is alcoholic. She denies
that.But I cannot accept that denial because there is an
affidavit ofthe shebeen queen from whose establishment that
person isserved with alcoholic drinks. That nanny is said to be
smellingalcohol in her breath all the time. She denies that. In
the faceof these disputes this application cannot succeed. ROOM
HIRECO. (PTY) LTD V JEPPE STREET MANSIONS (PTY) LTD 1949
(3) SA 1155.
The application is dismissed. There is no order of
K.J. Guni JUDGE
For Plaintiff : Mr. Mda
For 1st Respondent : Mr. Macheli
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