IN
THE HIGH COURT OF LESOTHO

CIV/APN/39/2009

In
the matter between:

NOAMI
SETŠABI (BORN NKOSI) APPLICANT

VS

LEHANA
SETŠABI 1^ST
RESPONDENT

THE
COMMANDING OFFICER - ROMA 2^ST
RESPONDENT

THE
COMMISSIONER OF POLICE 3^ND
RESPONDENT

THE
ATTORNEY GENERAL 4^RD
RESPONDENT

JUDGMENT

Delivered by the Honourable
Judge M. Mahase

On the 16^th
February 2009

Civil Procedure – Husband
and Wife – urgent relief – interim custody of a four months old
baby –best interests of such a
child – removal of that baby from
the jurisdiction of this court

The parties herein
(applicant and 1^st
respondent) are husband and wife. They were married by civil rites
on the 20^th
September 2008 at Ormonde Johannesburg in the Republic of South
Africa. The said marriage still subsists vide annexure “NN1”
to
the notice of motion.

One child, a baby
by the names of TS was born out of the parties’ marriage. He was
born on the 23^rd
September 2008 at the Clinton Hospital in the Republic of South
Africa – vide annexures “TS1” and “TS2” annexed to the

notice of motion.

Applicant and the
said baby have been staying in the Republic of South Africa at a
rented flat since the parties` marriage and ever
since the said baby
was born.

The applicant’s
husband 1^st
respondent stays at Roma in Lesotho at his parental house with his
parents. He is employed at the Alliance Insurance in the district
of
Maseru, while the applicant is unemployed.

In other words,
the 1^st
respondent has never resided with nor has he ever had custody of his
minor child even though he visits his wife and child regularly.
He
also always has with him the key to the flat in which his wife and
child stay.

The applicant and
baby T came to Roma in Lesotho to visit her husband and the baby’s
grand parents at Roma in Lesotho. This she
did on the 20^th
December 2008.

It is the
applicant’s case that while at Roma, the 1^st
respondent used to go away from home living her and the baby alone
while he went out to carouse and have a good time with his friends.

That on the 9^th
January 2009, the 1^st
respondent arrived home drunk and he first abused her verbally and
ultimately assaulted her when she responded to his verbal abuse

against her.

It is her story
that this was not the first time that she was treated in this manner
by her husband.

To cut the long
story short, suffice it to mention that the applicant has clearly
and elaborately spelt out in her founding affidavit
how she was
assaulted by her husband and how she in turn respondent to that. In
fact the misunderstanding between them resulted
into a fierce fight
where each of them sustained injuries. They each blame each of them
has elaborated upon this fight, and are
each blaming or accusing each
other for the fight. Applicant says that in fact, the 1^st
respondent wanted to kill her, while on the other hand, 1^st
respondent accuses the applicant of having intended to kill him and
their baby.

Their stories in
this regard are contained in their founding and opposing affidavits
respectively.

Lastly on the
facts, it is the applicant’s story that after this incident, she
found herself in a very very hostile environment
of 1^st
respondent’s family, friends and community including 1^st
respondent who did also not talk to her and shunned her. She felt
lost.

That in
desperation, she took an overdose of tablets. This resulted in her
being hospitalized, though for an unspecified period.

It is the 1^st
respondent’s case that the applicant has precious, (though at
unspecified periods) taken an over dose of tablets. He therefore,
in
opposition of the application herein filed by the applicant for the
granting of an interim custody of their baby, states that
the
application be refused because applicant has serious psychological
problems. This he avers even though that fact is not supported
by
any expert/professional evidence.

The applicant
denies that she is violent and explains her dilemma and reasons for
having behaved as she did. In fact their affidavits
are referred to
in this regard.

Following this
incident, the applicant apologized to 1^st
respondent for every thing, but her apology was not accepted by her
husband.

Instead, the 1^st
respondent from then on refused applicant access to her baby, thereby
denying the right to have anything to do with her baby.

She subsequently
sort an intervention of a social worker and the offices of the
C.G.P.U. all in vain since even after their intervention,
she was
still denied access to her baby by the 1^st
respondent and presumably by the 1^st
respondent’s parents. She was denied an opportunity to see her
baby even after the social worker had tried to intervene. It
was
only after an order of court dated the 5^th
February 2009.

In a nutshell, the
1^st
respondent then ordered the applicant to go back to her home in the
Republic of South Africa for her recuperate but did not allow
her to
take their baby along with her. The said baby has since been looked
after by a hired nanny and the 1^st
respondent old mother much to the dissatisfaction of the applicant.

It is on the basis
of the above facts that the applicant approached this court on an
urgent basis for asking this court to grant
her prayers which appear
on her notice of motion as follows:-

1. 
   Dispensation of
   the Rules of this Court and so on.

   
   

2. That a rule
nisi be issued calling upon the 1^st
respondent to show cause if any why:-

a) 1^st
respondent shall not be ordered to omne
ante
produce the baby TS and cause same to be examined by the Honourable
Court to satisfy itself of its general well being.

b) The Commander
of Roma Police station shall not be enjoined to see to the immediate
enforcement of an order of the Honourable
Court.

c) 1^st
respondent shall not be ordered to bring the child Tto the offices of
the social worker Motsamai at Maseru on a date to be arranged
by
applicant and respondent to enable applicant to see the child T.

d) Applicant shall
not be granted interim custody of the baby Tpending the resolution of
the marital problem between applicant and
1^st
respondent alternatively legal action.

e) The Honourable
Court shall not grant applicant permission to remove the said child
from the jurisdiction of the Honourable Court.

f) Respondent
shall not be ordered to pay legal fees for this application as
applicant is unemployed.

g) Applicant be
granted further and or alternative relief.

2. 
   That prayer 1
   should operate as an absolute order and prayers 2(a), (b) and (c)
   operate with immediate effect as an interim order.

   
   

The rule nisi
herein granted was returnable on 13/02/09 while 1^st
respondent had been ordered to take the child in question to court in
terms of the Provisions of prayer 2(c) on the 05/02/09.

Suffice it to
mention that all other subsequent it to mention that all other
subsequent efforts by the applicant to see her baby
were unsuccessful
due to the fact that the 1^st
respondent did not agree to bring the said baby to the offices of the
social worker for its mother to see it.

The 1^st
respondent insisted that the applicant should go to Roma, to his
parental home in order for her to see her baby.

This he did and
insisted on despite the unchallenged averments by the applicant
relating to the hostile environment towards her
at Roma as outlined
at paragraph 7.9 of her founding affidavit.

When on the return
day, this application was argued; and which application is being
opposed by the 1^st
respondent, this court was asked to make a determination on two
issues as per parties’ head of argument. These were:-

• 
  whether or not
  it was in the best interests of this baby – T that either
  applicant or 1^st
  respondent be granted an interim custody of it? In other words,
  the court is asked to determine who between the applicant
  and the
  1^st
  respondent can better serve the best interests of a (4) four month
  old baby if granted custody of it?

  
  

• 
  What exactly
  does the phase, “the best interests of a child mean for a (4)
  four month old baby?”

  
  

In the instant
case, each party/parent of this baby claims that it is the one best
suited to serve the best interest of its baby;
for reasons which each
of them has advanced in their affidavits.

This court is most
indebted to both counsel for either party in having ably assisted
court with relevant authorities in support
of their respective cases.
It has however to be observed that in all the said cited
authorities, the issue in question arose during
the divorce or
judicial separation application and that, (and this is most important
all the children involved were age between
8 and 10 years. In the
instant case, the baby in question is aged (4) four months; has at
all material times after it birth (which
was by caesarian section)
been residing with its mother in the circumstances already outlines
above and as spelt out in the affidavits
of its parents in papers now
before court.

Most
significantly, it is clear and undisputed that the issue of the
suitability of the applicant to look after and serve the best

interests of this baby never rose up, nor was this ever an issue
prior to the alleged fight which occurred between the applicant
and
the 1^st
respondent some four (4) months after this baby was born.

In fact and to
precise, this was never an issue prior to that day, the 9^th
January 2009. there is nowhere in his papers where the 1^st
respondent alleges that he took his wife, the 1^st
applicant for professional medical examination and evaluation so as
to be determined that indeed she is psychologically disturbed.

This allegation is
unsupported by any professional or expert evidence. It is a bare
allegation. There is further no iota of evidence
indicating that
there was never a time between the 23^rd
September 2008 and the 9^th
January 2009 when the applicant attempted to harm or kill her baby in
anyway.

What is undisputed
by the 1^st
respondent is that the applicant traveled from Johannesburg to Roma
in Lesotho for the sole purpose of visiting her husband with
their
baby T.

The problem
between them arose as a result of neglect by the 1^st
respondent of the applicant while applicant had visited him. He does
nowhere in his opposing affidavit deny that he had left the
applicant
at his parental home for most of the time that she had come to visit
him. In fact he admits that it was him who got
irritated and lost
temper and that he could not resist the temptation to clap her in her
face – vide paragraphs 4.3 and 4.4.

All of the fight
was as a result of an aggrieved wife asking about why her husband did
not have time for her. While this court
does not in anyway condone
the actions of the applicant in defending herself against the assault
upon her by her husband, who by
his own admission he lost tempter and
clapped his wife instead of addressing his wife’s complaints
regarding his alleged behaviour,
he resorted to act of violence, the
fact of the matter is that the 1^st
respondent has not in anyway denied that at all material times after
the birth of their baby, that baby has been in the custody
of her has
not been denied. So also has the fact that the only and sole purpose
of having come to Roma with baby T was to visit
the 1^st
respondent.

There is nowhere
in his papers where the 1^st
respondent alleges that he was ever denied access by his wife to her
flat at Ormonde where she and baby T and to the knowledge
of the 1^st
respondent, reside. He has not denied that he even has with him a
key to that flat so that he can go in there freely whenever
he feels
like doing so.

Now, coming to the
issue of the best interests of a four (4) month old baby; in the
circumstances of this case.

It is a matter of
common cause that the 1^st
respondent had not spend quality time with his wife and baby – in
that short time from the 20^th
December 2008 to 9 January 2009 hence the events of the 9^th
January 2009

• 
  Also of common
  cause is the fact that, it was 1^st
  respondent who first lost temper and assaulted the applicant.

  
  

• 
  That by her own
  admission she fought back in self defence.

  
  

• 
  She immediately
  took 1^st
  respondent to hospital where he was treated as out patient.

  
  

• 
  That she later
  apologized to her husband for whatever had occurred between them
  but he did not accept her apology

  
  

• 
  Subsequently and
  on that very night of the 9^th
  January he took applicant away from where they both resided at 1^st
  respondent’s parental home, away from her baby and compelled her
  to sleep at his brother-in-law’s place.

  
  

This he did well
knowing that the applicant had no other close relative in Lesotho, so
that she had no choice of where else to go,
other than to the
relatives of 1^st
respondent.

It is apposite to
mention that indeed, this, the 1^st
respondent did against the will of the applicant because the family
of 1^st
respondent was hostile towards her, and being a stranger to them –
so to speak; she had no choice but to go and sleep at the
home of
another close relative of her husband.

• 
  One wonders why
  the parents of the 1^st
  respondent have not in anyway intervened in this whole saga while
  the incident occurred at their home ……… None of them,

  including 1^st
  respondent’s brother-in-law have filed any affidavits in support
  of either the applicant or 1^st
  respondent;

  
  

Best interest of
the four (4) months old baby:-

It has been
submitted that this court, being an upper guardian of all minor
children is in a position to decide the issues herein
raised.

In the case of
MYERS
vs LEVISTON
1949(1)
S.A. 203 at 214
it was observed among others that there is no one who quite takes the
place of a child’s mother. There is no person whose presence
and
natural affection can give a child the sense of security and comfort
that a child derives from his own mother – an important
factor in
the normal psychological development of a healthy child.

The above holds
true in the instant case. The applicant is a natural mother to this
baby, subject-matter in this application.
She was single handedly
always stayed with, cared for and provided for her baby from its
birth. This she has done satisfactorily
since this child was born
even thought she is unemployed.

There is nowhere
in his papers where the 1^st
respondent alleges that the applicant has never been a fit and proper
mother to look after their said child. There is no complaint
from
him suggesting that at all material times while the applicant had
custody of the said baby she neglected it in anyway such
that she is
rendered unfit to have its custody.

The fact that she
has at all material times taken care of her baby at the flat she has
rented out has not been gainsaid by her husband
in anyway. On the
contrary, he has a key to that that flat, presumably so that he can
go in and out as he wishes to see his family.
It is not his story
that he was ever denied any visitation rights and access to his baby
by the applicant.

All which is clear
and undisputed is that even though the applicant and 1^st
respondent have been formally married for about five months to date,
they have been staying apart for reasons which have not been

disclosed in these papers by any of them.

However, what is
important and a matter of common cause is that they are still
formally married and that their marriage still subsists.
This
explains why the applicant traveled all the way from Johannesburg
with this baby for the sole purpose of visiting her husband.

With the greatest
respect, this one isolated incident which occurred between the
applicant and the 1^st
respondent, can not and should never be used as the sole and main
reason why the baby in question should be separated from its
own
mother, in the absence of any evidence that she is completely unable
to look and care for her baby. In any case each one of
its parents
brought about this situation in which they now find themselves.

In fact the 1^st
respondent is blowing hot and cold over the issue that the baby in
question has always been cared for by the applicant from its
birth
and that she has had full uninterrupted custody of this child prior
to this one isolated incident. Vide paragraphs 3.1 and
3.2 where the
1^st
respondent had clearly contradicted his own version on this issue.

This court has
noted with trepidation that the 1^st
respondent asks this it to grant him custody of this baby; an order
whose effect will be to remove baby T from its biological mother’s

care and custody so that he can then leave the said baby in the care
of his elderly mother and nanny/maid.

This he applies
for without advancing credible evidence and or proof that the
applicant has proved to be an unfit person to care
for and look after
her baby for the whole time since this baby’s birth.

The fact that
applicant has a helping hand at her flat, does not advance the 1^st
respondent’s case in anyway, moreso since he too relies on such a
hand and that of his mother in caring for this baby. This
he wants
to do in total disregard of the applicant’s wishes.

There is nothing
in the 1^st
respondent’s papers in this application indicating that the actions
of the applicant which were cause by loss of temper, because
of what
her husband did to her, was in anyway directed at their baby, and
vice versa. It is sadly observed that in the instant
case, baby T is
being used as a weapon of revenge by its parents against one another.
This is regrettable.

There is a
plethora of authority that generally speaking, the mother is seen as
the person who is the primary giver of normal development
and secure
environment for a child.

In the instant
case, the applicant is a natural mother of baby T. She is not a
hired nanny nor a grandmother. There is therefore
no other person
who can provide for this baby. This is so in the instant case. In
the absence of any evidence that in acting
as she did, the applicant
acted in bad faith, spitefully or vexatiously and directly at her
baby, this court has not been successfully
persuaded that the
applicant is unfit to be granted interim custody of baby T.

The applicant has
asked this court to allow her to remove her said baby out of the
jurisdiction of this court.

The 1^st
respondent opposes this part of the application. His opposition is
based on the ground that among other, the applicant is unemployed,

stays in an unsafe environment in South Africa; and other reasons as
appear in paragraphs 3.2.1 up to 3.2.6 of his heads of argument.

This he does,
although he is in full agreement with the applicant’s averment that
there is no one who quite takes the place of
a child’s mother and
he relies on the case of MYERS
vs LEVITON 1949(1) S.A. 203 (T) at 214.
This is also a case cited by the applicant in support of her case
that she is the best suited person to be awarded the custody
of this
baby.

The 1^st
respondent has also not gainsaid the applicant’s story that she has
at all material times since the birth of their baby lived
with this
baby in Johannesburg, while its father – 1^st
respondent has never stayed with it as he stays away from them at
Roma in Lesotho with his own parents. He has not in anyway attempted

to explain to court why he has never stayed together with his
unemployed wife and baby.

In fact for him to
state and admit that his wife and child stay away from him at an
“unsafe” place without him correcting this
anormally leaves much
to be desired about his role and responsibility as a father and a
head of his own family.

One wonders if the
1^st
respondent is really honest and if he is bona fide in claiming that
the best interests of this child will better be served by him
and not
by its mother. We should recall at all times that when applicant
came to Lesotho with their baby; she drove all the way
from
Johannesburg with this baby, unassisted for the sole purpose of
visiting her husband and father of their baby.

There is, in the
view of this court, and reliance being placed on the authorities
cited herein by both counsel for applicant and
1^st
respondent, nothing placed before it indicating that it is in the
best interest of this baby that it should be removed from its
mother
even for a day to be looked after by a nanny or a grandmother.

In any case, both
parties are agreed that – there is no person whose presence and
natural affection can give a child the sense
of security and comfort
that a child derives form his own mother, an important factor in the
normal psychological development of
a healthy child – Vide MYERS
vs LEVITON
(Supra).

Applicant has also
asked this to order the 1^st
respondent to pay or contribute towards her legal costs or legal fees
in this case.

While it is trite
that the reciprocal duty of support of spouses is one of the
invariable consequences of marriage the applicant,
who in the instant
case is not employed, she has not quantified the amount of legal
costs/fees she has asked for. This court is
therefore unable to
grant same in the absence of the exact figure she applies for.

In the premises,
and for the foregoing reasons, the applicant’s application is
granted and the following order(s) is made:-

1. Interim
custody of the minor child TS be and is hereby granted to the
applicant.

2. Applicant is
allowed to remove the said baby – T to the Republic of South Africa
where she has been with him, but she should
allow the 1^st
respondent reasonable access to the said child since the said child
is equally entitled to be with its father. Further still its
parents
are still legally married to each other.

3. Applicant is
ordered not to remove the said child out of the jurisdiction of
Ormonde in Johannesburg without the written permission
of the father
(1^st
respondent), unreasonably withheld.

4. It is further
ordered that this order should be served upon the Registrar or
Sheriff of the Johannesburg High Court for him/her
to intervene and
see to it that the 1^st
respondent is allowed access to his child whenever he wishes to see
his child.

5. This court
declines to grant the prayer that 1^st
respondent be ordered to pay legal fees/costs for applicant because
same have not been proofed nor quantified.

M. MAHASE

JUDGE

For
Applicant : Mrs. V. Kotelo

For 1^st
Respondent : Mr. Q. Letsika

For other
Respondents : No appearance