THE HIGH COURT OF LESOTHO
the matter between:
by the Hon Mr Justice T. E. Monapathi
the 1st day of November 2010
Applicant has approached this court on urgent basis for the
the Respondent be ordered to pay school fees for minor children;
she (Applicant) be granted interim custody pending divorce.
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”
the application was argued by consent Counsel, informed the court
that the father had agreed to pay fees for the children.
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.
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
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.
argument was premised on the fact that the Respondent had failed to
pay the school fees from June until the application was
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.
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
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
be resolved as issues with respect to permanent custody.
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.
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.
unless exceptional circumstances exists.
this case there are no exceptional circumstances. Respondent has not
shown in any manner that the Applicant is not fit and
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.
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.
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
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
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
Mr Teele has correctly submitted, in the absence of a
counter-application, it is difficult for the court to find a
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.
the circumstances it is in the interests of these children to
continue the existing form of relationship with their mother
there is no evidence that shows that the Applicant is not a proper
person to look after the children.
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.
application is allowed on the above terms with no order as to costs.
Applicant : Mr Teele
Respondent : Mr Rasekoai
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