CIV/APN/107/2011

 

 

IN THE HIGH COURT OF LESOTHO

 

 

In the matter between:-

 

BOFIHLA LEBOELA MATJELO               APPLICANT

 

 

And

 

 

NKARENG MAPETLA                              1^ST RESPONDENT

‘MANTSOABATSAME MAPETLA            2^ND RESPONDENT

 

 

 

JUDGMENT

 

Delivered by the Honourable Madam Justice N. Majara

on the 4^th July 2011

 

Summary

In an application for a declarator that the first applicant is the guardian and rightful person to whom custody of her minor child should be awarded – whether the 1^st respondent’s defence that he entered into a mala agreement with her is legal and enforceable – 1^st respondent married by civil rites to 2^nd respondent – practice not known in a civil rites marriage – no evidence to support same – agreement  null and void ab initio and unenforceable in law.

 

On the 24^th February 2011 the applicant moved an urgent application against the respondents for inter alia, the release of her minor child Ntseliseng Nelly Mapetla as well as her personal belongings; for the respondents to be declared as having no right and control over the child and for her to be declared as the guardian and rightful person to whom custody of the child should be awarded.  When the applicant was first moved before my sister Mahase J, she ordered the applicant to serve the respondents with the notice of Motion.  After the latter had filed their notice of intention to oppose and the parties had filed their respective affidavits the matter was set down and argued before me on the 9^th May 2011.

 

On the 15^th May 2011 I delivered a judgment ex tempore in terms of which I found in favour of the applicant and stated that my reasons would follow.  I now proceed to give those reasons hereunder.

 

A summary of the facts that are common cause is that the applicant and one Thabo Matjelo got married in 1993 and due to some misunderstandings between them, the applicant left the matrimonial home (ngalaed) to-date.  In November 1999 applicant and the 1^st respondent, who is legally married to the 2^nd respondent entered into an adulterous relationship out of which the minor child herein was born.

 

In terms of the applicant’s averments when the said child was about a year old, the 1^st respondent convinced her to take her away from Lesotho to live with his sister in Swaziland for fear that his wife might find out about her existence and the applicant agreed.  She added that she also agreed to the child being given the surname of Mapetla for convenience.  Further that she used to visit the child frequently in Swaziland until at some stage when the 1^st respondent’s sister intimated her desire to adopt the child to which she disagreed.  It was then that the 1^st respondent’s sister started to make it difficult for her to see the child as she would hide her whenever the applicant wished to see her.

 

As a result, the applicant sought the intervention of the police both in Lesotho and in Swaziland until when she eventually received a phone call on the night of the 20^th February 2011 from the Lesotho Child Protection Unit within the Police Service who informed her that they had succeeded to bring the child back to Lesotho.  On the 21^st February 2011 when the applicant went to fetch the child, the police refused to release her to her and told her that she was irresponsible as she appeared to have given her child to the 1^st respondent because she had agreed that the child could use his surname.  

 

On the 22^nd February 2011 the 1^st respondent called her to inform her that the child had fallen ill and when she made efforts to take the child to a medical doctor the 2^nd respondent refused and told her that they would not let her near the child as that would traumatize and trouble her.

 

In his answering affidavit the 1^st respondent admitted that he and the 2^nd respondent are married by civil rites and the marriage still subsists.  That he and the applicant had entered into a verbal agreement in terms of which she would perform the customary practice of mala and bear a child for them in place of his wife as the couple were childless.  The child was born and was named after the 1^st respondent’s sister.  The 1^st respondent also admitted that the applicant used to visit the child periodically but disputed that his sister ever wanted to adopt her.  He further admitted that he and the applicant are not married.  The 1^st respondent however denied that the child is illegitimate.

 

He also raised the following points in limine:-

That a dispute of fact exists with regard to the agreement between the applicant and the 1^st respondent to the effect that the latter would bear him a child through the mala custom whereas the applicant averred that she just fell pregnant at the time of their illicit affair.  That he also disputes that the child is illegitimate because the applicant alleges that she is legally married to someone else.

 

Secondly that the applicant is guilty of non-joinder of the Lesotho Police because she made some serious and damaging allegations against them and as such, the non-joinder is fatal to this application.

 

Thirdly that the applicant is guilty of mis-joinder in that she erroneously cited the 2^nd respondent while the latter has done nothing to impregnate her nor has she contributed towards the decision that the minor child be taken to the 1^st respondent’s sister in Swaziland.

 

Lastly that there is no urgency in the matter because the applicant had applied for a Rule Nisi which was not granted with a returnable date but instead, was ordered to serve the respondents with the Notice of Motion and further that it was not necessary for her to seek an order to file her founding papers.

 

In her reply the applicant denied that there is a dispute of fact with respect to her being legally married even if her husband has not filed any supporting affidavit not to mention that this is because they have been living apart for the last fifteen (15) years.  That even if there was a supporting affidavit in that regard, she would still be entitled to have instituted this application as the mother to the child.  Further that the presumption of legitimacy of children born during the subsistence of a marriage is rebuttable as the applicant has shown that the 1^st respondent does not dispute that she is not married to him save that they have a child together.

 

With regard to non-joinder of the Lesotho Police, the applicant made the contention that the point is misconceived because she is not seeking any relief against the police save for her to show that they released her minor child to the respondents and advised her that if she wished to challenge same she must come to Court.

 

On mis-joinder of the 2^nd respondent it was the contention of the applicant that the 2^nd respondent was properly cited because she is married to the 1^st respondent and the custody of the child has been given to them jointly by the police and thus, she has a direct and substantial interest in the outcome of these proceedings. 

 

With respect to the issue of urgency, it was the applicant’s case that the respondents were served in terms of the order of this Court and that the issue of custody and guardianship is urgent because the 2^nd respondents were unlawfully given the child.

 

Coming back to the merits of this case, the applicant averred in her reply that she and the 1^st respondent committed adultery and that there was never any agreement either verbal or written between them that she should bear the 1^st respondent a child through the mala custom.  Further that she could not in law have been 2^nd respondent’s mala outside a customary marriage between the respondents as the respondents are married by civil rites and could not lawfully practice the mala custom as he alleges.  Further that even assuming that she had agreed, the agreement would be null and void ab initio and not enforceable in law. 

 

Further that for the said custom to apply the 1^st respondent should have first arranged with his wife to marry her, i.e. the applicant and that nowhere does he aver that he ever consulted and/or agreed with the 2^nd respondent to a marriage and the mala custom.   That in addition, as proof of such an agreement, the child would have been handed over to the 2^nd respondent and not removed to Swaziland to 1^st respondent’s sister.  Further that in any event the said custom has since been abolished.

 

I now turn to deal with the first point of law namely that a dispute of fact exists than cannot be properly decided on affidavit.  Whenever this point is taken up, it is a trite principle of law that it is not enough for a respondent to allege that a dispute of fact exists.  The test that has been laid down for the Court to make a proper consideration thereof is whether the alleged dispute is material to the determination of the issues as a result of which the matter cannot be properly decided on the papers.  In other words as has been stated in the case of Room Hire Co. Pty (Ltd) v Jeppe Street Mansions 1949 (3) SA 1155 and followed by our Courts, the question to be asked is whether the alleged dispute is a genuine and/or real one. 

 

In my opinion, although the 1^st respondent avers that the child is not illegitimate because the applicant alleges that she is married to someone else, the fact of that marriage is not relevant to the determination of custody between the applicant and the respondents who are themselves undisputedly married by civil rites.  Further, the fact that the 1^st respondent denies that the applicant just fell pregnant as a result of their adulterous relationship and avers that the two had agreed that she becomes the mala, the dispute is not material one with respect to the determination of the question of whom custody and guardianship of the child should be awarded in terms of the law.   In other words, even if I were to believe the 1^st respondent’s version, he would still have to pass the hurdle of showing that the alleged agreement between them is enforceable in law.

 

At any rate, as it was correctly submitted on behalf of the applicant, the mala custom is an element of a customary marriage and since it is not disputed that the respondents herein are married by civil rites such a practice would not be enforceable.  I will come back to this issue when I deal with the merits of this case.  Suffice it for me to say I do not find that the dispute of fact is material to the determination of custody and guardianship of the child.

 

On non-joinder of the police, I accept the submission that was made on behalf of the applicant that the Lesotho Police do not have a direct and substantial interest in the outcome of these proceedings and that indeed no order is being sought against.  The fact that the applicant stated that they released the child to the respondents does not mean that they are going to be affected by the order of this Court.   See in this regard the decision of the Court of Appeal in the case of Matime & Others v Moruthoane & Others 1985 LAC 198 at 200.   In any event, the fact is not even disputed.  It was therefore not necessary for the applicant to join the police in these proceedings.

 

With respect to mis-joinder of the 2^nd respondent, it is common cause that she is legally married to the 1^st respondent and the child was released to them jointly.  The fact that the child has been staying with them precipitating the institution of this application is indeed an indication that she has accepted her into her family and has associated herself with everything that has to do with her. 

 

In addition, it is my view that the 2^nd respondent associated herself with the release of the said child to her and the 1^st respondent by conduct in that she accepted the minor child into her home and also filed a supporting affidavit to the 1^st respondent’s answering affidavit in which she does not disassociate herself with the matter of the custody of the child in any manner.   For these reasons it is my finding that she does have an interest in the outcome of these proceedings.

 

Further, if the child is to be released to the 1^st respondent, by virtue of her being his wife, the child will also be released into the 2^nd respondent’s custody and like I said she does not have any problem with this fact at all.  I might add that she fully backs her husband as shown above.   For the avoidance of doubt the 2^nd respondent averred as follows in her supporting affidavit in terms of the contents of paragraph 7:-

“Contents herein are denied.  The minor child NTSELISENG NELLY MAPETLA is in the hands of her father 1^st Respondent who is my husband and we are not strangers.”

 

Thus, the issue of whether or not she was not responsible for impregnating the applicant as averred by the 1^st respondent is neither here nor there and does not take this point anywhere.  Instead, it confirms the applicant’s assertions that the 2^nd respondent was never a party to the alleged agreement between her and the 1^st respondent to bear him a child through the mala custom upon which he seeks to rely in support of his case. 

 

On the issue of urgency the applicant has shown that she received a phone call on the night of the 20^th February 2011 informing her of the presence of the child in Lesotho on the basis of which she went to the police on the 21^st i.e. the very next day to fetch the child only for her to be released to the respondents on the 23^rd February.  She then approached this Court on the 24^th February 24^th to seek the release of her minor child. 

 

In my opinion, it was very crucial that this matter be dealt with as expeditiously as possible because it involves the interests of a minor child.  The issue of her custody was urgent because it is common cause that she had hitherto not lived with either party in Lesotho but had been removed to Swaziland since she was about a year old.  Indeed, the experience must have been traumatic for her and the issue of her custody needed to be determined as quickly as possible to avoid any likely continuance of the trauma so that she can settle down as soon as possible without being the subject of a lengthy litigation.  I accordingly accept that the matter was indeed very urgent and that the respondents’ point was thus misconceived.  I accordingly dismiss it.

 

I now turn to deal with the merits of this application.  With respect to the alleged agreement between the applicant and the 1^st respondent to the mala custom, Mr. Thabane who appeared on behalf of the respondents made the submission that the said custom still exists and has not been abolished alternatively, that the 1^st respondent is free, willing and capable of adopting any child from whatever source. 

 

With regard to the custom of mala, the learned Maqutu J discusses the practice in his Contemporary Family Law (The Lesotho Position) Second Edition p 240-1 in the following words:-

“In African custom it used to be possible for a childless woman to request her husband to marry another woman to bear children for her.  Such a woman did not have a separate house.  The children she bore were deemed to have been born by the childless woman.  This woman who was married exclusively to bear children had no status that was distinct from that of the childless woman.  She was simply her womb.”

 

Evidently, the malacustom used to go hand in glove with marriage within the customary setting where the decision would be preceded by a request by the childless wife.  It would be a joint decision to which the woman who was married as a mala wife would then agree to.  Thus, the above statement clearly supports the argument that was made by Mr. Makholela to the effect that, being married by civil rites to the 2^nd respondent the 1^st respondent could not legally enter into an agreement of that nature with the applicant without having married her and with the 2^nd respondent’s approval.  It is not disputed that the two were not married but were merely engaged in an adulterous relationship out of which the child was born. 

 

Further, as I have indicated above, the custom properly practiced entails a woman being taken as a mala wife thus necessitating that the woman has to first be married to the man before she can bear him any children.  In casu, by the respondents’ own admission, the 2^nd respondent had nothing to do with the alleged agreement of the applicant bearing the child by way of mala and/or the removal of the child from Lesotho to Swaziland which proves that she was never consulted nor did she give her blessing.  In addition, the  2^nd respondent responded as follows at paragraph 6 of her affidavit in response to the assertion of the applicant with respect to her adulterous relationship with the 1^st respondent which resulted in the birth of the minor child and her subsequent removal to Swaziland to hide the fact of her existence from her:-

“Contents therein are not admitted as they are not known to me save to deny any telephone communication between applicant and me.”

 

With these averments the 2^nd respondent confirms the applicant’s contention that she was never consulted with respect to the alleged agreement nor was she ever a part of it.  It also never received her blessing as should have properly happened in terms of the authorities.  It is as such, null and void and not enforceable in law.

 

With respect to the question whether the practice still forms part of our customary law the learned Maqutu J (supra) makes the followingremarksat page 241:-

“The burning question today is whether or not the marrying of a woman as a womb (mala) is still permitted by law.  It is clearly a method of adoption by a childless couple, it has the disadvantage of putting the woman who is womb in a permanent servile status.  It is doubtful whether or not it fits in with the present Basotho culture.” (my emphasis)

 

Mindful of the above sentiment and taking judicial notice of the fact that the practice has since become obsolete by virtue of it having died naturally, I need not say more than that Mr. Thabane’ s submission is flawed and not supported by the facts. 

 

However, even if it could be shown that the 2^nd respondent had agreed to this arrangement, I have already said that the practice was only permissible within the customary legal system which allows the taking of more than one wife and not in a marriage by civil rites.  A civil marriage does not permit polygamy in all its forms for as long as it subsists.  Thus, even if I were to believe that the applicant and the 1^st respondent had entered into such an agreement, it would be void ab initio and unenforceable. 

 

I now turn to deal with the issue of custody of a minor child born of a woman who is not married to the biological father as obtains in the present case.  The basic rule is that access is usually an incident of parental authority in the case of a father, stemming from the fact of his marriage to the mother, as was stated in the case of B v S 1995 (3) SA 571 at 575 G.  I might add that there are exceptions to this general rule but those are not applicable for the determination of the issue in casu. 

 

In the case of Adelina Mahanye v Theko Mahanye & Another CIV/APN/341/91 (unreported) p3 quoted to this Court the late Kheola (J) as he then was had to say with respect to the issue of guardianship of a minor child whose mother is still alive:-   

“It is wrong to assume that the first applicant assumed legal guardianship over Mopeli because his mother left him with him (first applicant).  The mother assumed the legal guardianship of the children immediately after the death of their father.  It is irrelevant that at the relevant time she happened to be out of the country.  She remained the legal guardian wherever she was….”

 

In addition, although much was made about this fact in the 1^st respondent’ affidavit, nothing turns on whether or the applicant was still legally married to her husband since it is not disputed that she and the 1^st responded are not married at all.  That issue would be one for determination where the applicant’s husband had an interest in and wished to contest the issue of paternity and/or guardianship of the minor child.  It has nothing to do with the two respondents in casu.

 

By the same analogy, the mere fact that the applicant permitted the 1^st respondent to remove the child to Swaziland and to use the Mapetla surname does not per se strip her of her legal guardianship of the child.  The matter of the names is not conclusive and can at best be seen as a ploy that the applicant and the 1^st respondent used to circumvent the laws of Swaziland insofar as the presence of the child in that country was concerned.

 

With respect to the submission by Mr. Thabane that the 1^st respondent is free to adopt any child, I do agree that this is indeed so save that no-one can be permitted to simply take a child away from its mother to whom he is not married, without her consent and argue that he is free to adopt any child from ‘whatever source’ especially when the said mother is fighting for custody and guardianship of her minor child.  At any rate, adoption is done through legal means and the relevant laws and procedure have to be followed before it an be granted and/or legalized.

 

It is on the basis of the foregoing reasons that I found that the applicant had successfully made out her case and granted her prayers 2(a) (b) (c) and (d) in the Notice of Motion as follows:-

2 (a) the first and second respondents are directed to release the applicant’s minor child and her personal clothes and belongings to the applicant forthwith;

(b) the first and second respondents are declared as having no right and control over the applicant’s child Ntseliseng Nelly Mapetla;

(c) the applicant is declared as the guardian and rightful person to whom custody of her child shall be awarded;

(d) costs of suit on the ordinary scale.

 

 

 

 

 

N. MAJARA

JUDGE

 

 

For the applicant     :       Mr. L. Makholela

For the respondents :       Mr. Thabane