9
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 1st day of November 2010
The Applicant has approached this court on urgent basis for the following orders:
That the Respondent be ordered to pay school fees for minor children;
That she (Applicant) be granted interim custody pending divorce.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The application is allowed on the above terms with no order as to costs.
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T. E. Monapathi
Judge
For Applicant : Mr Teele
For Respondent : Mr Rasekoai