IN
THE HIGH COURT OF LESOTHO

HELD
AT MASERU

CIV/APN/536/2010

In
the matter between:

MANTSEKISENG
LETLELA …..................................Applicant

AND

PAUL
LETLELA …................................................Respondent

JUDGEMENT

Delivered
by the Hon Mr Justice T. E. Monapathi

on
the 1^st day of November 2010

1. 
   The
   Applicant has approached this court on urgent basis for the
   following orders:

   
   

1. 
   That
   the Respondent be ordered to pay school fees for minor children;

   
   

2. 
   That
   she (Applicant) be granted interim custody pending divorce.

   
   

2. 
   Applicant
   and Respondent are married by civil rights and that marriage will
   subsists. It happened that the parties had separated
   since June this
   year and the Applicant has taken away from their common home the
   minor children with her. The children aged 9
   and 3 years
   respectively. She intends to issue divorce proceedings very soon
   which will also touch on the issue of “permanent”

   custody.

   
   

3. 
   Before
   the application was argued by consent Counsel, informed the court
   that the father had agreed to pay fees for the children.
   So, by
   consent the order relating to that prayer be entered by consent. So,
   the main issue remaining before court was that of
   interim custody of
   minor children as against “permanent” custody.

   
   

4. 
   Counsel
   for Applicant (Mr Teele) argued that the Applicant be given custody
   because Respondent is not a fit and a proper person
   to take care of
   the children. He said this was evidenced by the fact that since the
   departure of the children from their matrimonial
   home, Respondent
   has done nothing to care for his children. He further argued that
   the Respondent does not have the interests
   of the minor children at
   heart as compared to the Applicant. Instead Respondent exhibited an
   attitude of neglect more than anything.

   
   

5. 
   This
   argument was premised on the fact that the Respondent had failed to
   pay the school fees from June until the application was
   launched
   before the court to compel him. Mr Teele also submitted that since
   Applicant is going to institute a divorce action
   the balance of
   convenience favours the Applicant who also has the prospects of
   success in the main trial (divorce). This court
   as contended, can
   only presently take a prima facie view of this.

   
   

6. 
   Mr
   Rasekoai for Respondent argued that there were material disputes of
   fact that could not be decided on the papers but on viv-voce
   evidence. One of the disputes was that Respondent did refuse to pay
   the fees but rather he did not know where the children were
   and
   whether they were still attending school. He also argued that
   Applicant was a habitual drunkard who cannot take care of the

   children. He added that Applicant is a scholar and she has no money
   and cannot be awarded custody of minor children. While the

   Respondent was not able to demonstrate the way in which he showed
   interest all along, I thought this other facts could only feature
   to
   be resolved as issues with respect to permanent custody.

   
   

7. 
   The
   ultimate criterion to be considered is the interests of minor
   children. This is of paramount importance. See the case of Fernando
   v Fernando 1968 70 NLR 534. In applying this principle that
   the interests of the children are paramount consideration, the court
   as upper quardian would
   normally award custody of very young
   children to their mother unless exceptional circumstances exist.

   
   

8. 
   This
   is because in the case of Myers v Leviston 1949 (1) SA 203 at
   214 was held that among other that there is no one who quite
   takes the place of a child’s mother. This is because no person
   whose presence and natural affection can give a child the sense of
   security and comfort that a child derives from his mother.
   I repeat
   unless exceptional circumstances exists.

   
   

9. 
   In
   this case there are no exceptional circumstances. Respondent has not
   shown in any manner that the Applicant is not fit and
   a proper
   person to look after the children. Respondent said that the place is
   not conducive for the children but he made no attempt
   of going to
   the place to see whether it is a good place or not.

   
   

10. 
    Respondent
    has failed to tell this court as to what he did for the past four
    (4) months to show that he cares for his children.
    He did not bother
    to go to school where the children were attending and see to the
    welfare of his children. He even failed to
    pay school fees till
    Applicant approached this court. The court should look for cogent
    and substantial reason in order to effect
    a change in life of the
    children other than to uproot destabilize and traumatize. In this
    case there are no weighty reasons to
    effect a change in the lives of
    the children as things are.
    

    
    

11. 
    Counsel
    also argued that there is a dispute of fact that argued for
    dismissal of the claim. I do not agree. To me, the way the
    issue was
    brought, Counsel ought to have raised this as a point in limine.
    This point does not hold substance because other that pointing out
    the facts, they should be such that they do not enable the
    court to
    resolve the matter on the papers. In any event I did not see such
    facts that were pleaded or not pleaded that would
    disable me to
    reach a conclusion. Indeed the balance of convenience favours the
    Applicant in the main action because what has
    been said in her
    papers (if proved) warrant a decree of divorce and that is one of
    the requirement of interim custody pending
    divorce.

    
    

12. 
    Like
    Mr Teele has correctly submitted, in the absence of a
    counter-application, it is difficult for the court to find a
    specific
    order in favour of the Respondent. There is no prayer for
    the Respondent for custody and this court cannot grant a prayer that

    was not sought. That would be irregular.

    
    

13. 
    In
    the circumstances it is in the interests of these children to
    continue the existing form of relationship with their mother
    because
    there is no evidence that shows that the Applicant is not a proper
    person to look after the children.
    

    
    

14. 
    Interim
    custody of the minor children is hereby to the Applicant with the
    following conditions as to the parties access to the
    children. It is
    that during school days the father shall have access to the children
    on weekends. During school holidays, the
    mother shall have access to
    the children during weekends. Fundamentally the children should grow
    up knowing and virtually and
    interchangeably living with their
    father and mother despite the separation.

    
    

15. 
    The
    application is allowed on the above terms with no order as to costs.
    
    

    
    

--------------------

T.
E. Monapathi

Judge

For
Applicant : Mr Teele

For
Respondent : Mr Rasekoai