IN THE HIGH COURT OF LESOTHO
CIV/APN/39/2009
In the matter between:
NOAMI SETABI (BORN NKOSI) APPLICANT
VS
LEHANA SETABI 1ST RESPONDENT
THE COMMANDING OFFICER - ROMA 2ST RESPONDENT
THE COMMISSIONER OF POLICE 3ND RESPONDENT
THE ATTORNEY GENERAL 4RD RESPONDENT
JUDGMENT
Delivered by the Honourable Judge M. Mahase
On the 16th 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 1st respondent) are husband and wife. They were married by civil rites on the 20th 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 23rd 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 applicants husband 1st 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 1st 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 babys grand parents at Roma in Lesotho. This she did on the 20th December 2008.
It is the applicants case that while at Roma, the 1st 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 9th January 2009, the 1st 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 1st respondent wanted to kill her, while on the other hand, 1st 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 applicants story that after this incident, she found herself in a very very hostile environment of 1st respondents family, friends and community including 1st 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 1st respondents 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 1st respondent for every thing, but her apology was not accepted by her husband.
Instead, the 1st 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 1st respondent and presumably by the 1st respondents 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 5th February 2009.
In a nutshell, the 1st 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 1st 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:-
Dispensation of the Rules of this Court and so on.
2. That a rule nisi be issued calling upon the 1st respondent to show cause if any why:-
a) 1st 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) 1st 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 1st 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.
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 1st 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 1st respondent did not agree to bring the said baby to the offices of the social worker for its mother to see it.
The 1st 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 1st 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 1st respondent be granted an interim custody of it? In other words, the court is asked to determine who between the applicant and the 1st 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 1st 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 9th January 2009. there is nowhere in his papers where the 1st respondent alleges that he took his wife, the 1st 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 23rd September 2008 and the 9th January 2009 when the applicant attempted to harm or kill her baby in anyway.
What is undisputed by the 1st 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 1st 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 wifes complaints regarding his alleged behaviour, he resorted to act of violence, the fact of the matter is that the 1st 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 1st respondent.
There is nowhere in his papers where the 1st 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 1st 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 1st respondent had not spend quality time with his wife and baby in that short time from the 20th December 2008 to 9 January 2009 hence the events of the 9th January 2009
Also of common cause is the fact that, it was 1st respondent who first lost temper and assaulted the applicant.
That by her own admission she fought back in self defence.
She immediately took 1st 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 9th January he took applicant away from where they both resided at 1st respondents parental home, away from her baby and compelled her to sleep at his brother-in-laws 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 1st respondent.
It is apposite to mention that indeed, this, the 1st respondent did against the will of the applicant because the family of 1st 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 1st respondent have not in anyway intervened in this whole saga while the incident occurred at their home None of them,
including 1st respondents brother-in-law have filed any affidavits in support of either the applicant or 1st 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 ofMYERS vs LEVISTON1949(1) S.A. 203 at 214 it was observed among others that there is no one who quite takes the place of a childs 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 1st 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 1st 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 1st 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 1st 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 1st respondent had clearly contradicted his own version on this issue.
This court has noted with trepidation that the 1st respondent asks this it to grant him custody of this baby; an order whose effect will be to remove baby T from its biological mothers
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 babys birth.
The fact that applicant has a helping hand at her flat, does not advance the 1st respondents 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 applicants wishes.
There is nothing in the 1st respondents 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 1st 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 applicants averment that there is no one who quite takes the place of a childs 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 1st respondent has also not gainsaid the applicants story that she has at all material times since the birth of their baby lived with this baby in Johannesburg, while its father 1st 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 1st 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 1st 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 1st 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 applicants 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 1st 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 (1st 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 1st respondent is allowed access to his child whenever he wishes to see his child.
5. This court declines to grant the prayer that 1st 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 1st Respondent : Mr. Q. Letsika
For other Respondents : No appearance
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