LesothoLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law.

 

 

CIV/APN/194/2011

 

 

IN THE HIGH COURT OF LESOTHO

 

 

In the matter between:-

 

 

M.M.                                APPLICANT

 

 

And

 

 

T.M.                                 RESPONDENT

 

 

JUDGMENT

 

Delivered by the Honourable Madam Justice N. Majara

on the 5^th September 2011

 

Summary

Custody of minor girl child aged 3 years – Child hitherto in the custody of both parties who had been staying together until applicant left for her maiden home – whether it is in the best interests of the child to award custody to the mother – as a general rule mother best custodian of child of such a tender age unless exceptional circumstances exist for father to be awarded custody – no such exceptional circumstances shown to exist -  custody awarded to the mother.

 

The applicant and the respondent have been living together as a couple until the applicant fled to her matrimonial home leaving their three year old girl behind.  It is common cause that the minor child, R. had hitherto been living with both parties at the respondent’s rented apartment since she was a year old having been brought up by the applicant and her mother M.M.2.

 

There is a dispute on whether the parties were legally married or not.  The applicant avers that they were merely cohabiting and the respondent avers that they were married or that at least only the issue of bohali was outstanding.

 

In terms of the applicant’s assertions she had been living with the respondent until on the 17^thMarch 2011 when she left as a result of the latter’s assaults and insults on her.  She tried to take the minor child with her but the respondent refused and threatened her.  This is denied by the respondent who in turn avers that the applicant left because they had a misunderstanding when he confronted her about her arriving home very late at night.

 

It is also the applicant’s case that it is not in the best interests of the minor child that the respondent be awarded custody because since she fled to her home, he usually leaves the child with a security guard after school as he is employed and that when the guard knocks off, the child is left alone in the apartment.  This averment is denied by the respondent who asserts that he used to come back from work and stay with the child and that he has since found a child minder for her.

 

On his part, the respondent contends that the minor child’s best interests will be safe-guarded if he is awarded custody because the applicant is not gainfully employed as she is a student at the national University of Lesotho and that her mother earns a living by selling chicken in town.  He adds that the child will be traumatized by having to board two taxis per day to get to and from school whereas he lives in a more convenient place being closer to the school.

The applicant disputes these averments and states that her mother was able to care for the child until she was a year old and that the business has never been a problem as the sale of chickens in town is only occasional.  She adds that nothing turns of the fact that she is a student and unemployed because her brother and sister help the family financially as they are both gainfully employed.

 

It is worth to note that both parties have cast aspersions on each other’s character with respect to who is better suited to be awarded custody of the child.  However, I am more inclined to agree with the approach suggested by Counsel for the applicant namely that, in a case of this nature, the Court is enjoined to determine what would be in the best interests of the minor child.

 

I find it apposite to mention at this stage that while there is dispute with respect to whether or not the parties are legally married, the fact that they have been living together with the minor child as a family renders the fact of the existence of a marriage between them secondary.  I am therefore of the view that an enquiry into the existence or otherwise of a marriage between the parties as was suggested by Mr. Rafoneke on behalf of the respondent will not be of much assistance to the Court in this regard. 

 

Further, while it may be true that under Roman-Dutch Law, 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, quoted to this Court, I have to consider this case upon its own peculiar circumstances, namely that due to having been living together with both parents the child has developed a natural bond with both, thus, what is at stake at this stage is how her interests will be best served so that the existence or otherwise of a marriage between the parents is not really relevant and/or helpful.

 

Indeed, I am also persuaded that the best approach in a case of this nature is the one that was adopted by the Court in the case of T. v M 1997 (1) SA 54 at 60 B – C also quoted to this Court where the Court expressed the following sentiments:-

“Generally speaking, I think, it can be accepted that once a natural bond between parent and child (whether legitimate or illegitimate) has been established it would ordinarily be in the best interests of the child that the relationship be maintained, unless there are particular factors present which are of such a nature that the welfare of the child demands that it be deprived the opportunity of maintaining contact with the parent in question.”

 

I have already stated that in casu, having been living with them since she was a year old, the minor child has formed a bond with both parents but they have parted ways as a result of their differences.  Unfortunately, in this kind of situation the Court can grant custody to one party with the other only being granted reasonable access because it is impossible for the both of them to have custody when they are living apart. 

 

As I have already shown, due to the circumstances of this case, the issue of the existence of a marriage and/or of legitimacy of the child should not be the determinant factor but rather, the Court should try and determine what would best serve the minor child’ s interests.  In the T v M case (supra) at p 57 H - J, Scott J.A. had this to say in this regard:-

“While at common law the father of an illegitimate child, unlike the father of a legitimate child, has no right of access, the difference between the respective positions of the two fathers is not one of real substance in practice since in our modern law whether or not access to a minor is granted to its non-custodian father is dependant not upon the legitimacy or illegitimacy of the child but in each case wholly upon the child’s welfare which is the central and constant consideration.  Accordingly, and to the extent that one may choose to speak in terms of an inherent right or entitlement, it is the right or entitlement of the child to have access, or to be spared access, that determines whether contact with the non-custodian parent will be granted.”(emphasis provided)

 

I might add in passing that where two people decide to cohabit without first having gone through the necessary legalities of a marriage as the applicant avers is the position in casu, they cannot expect that, that factor will always be to their convenience and in their favour where the issue of custody of a minor child is involved, i.e., assuming the applicant’s version is the correct one.   In other words, unmarried mothers take a calculated risk by deciding to leave their homes and go and cohabit with men to whom they are not married because this is bound to cause problems in the long run such as what obtains in the present case, especially where a minor child is involved.

 

But be that as it may, I now proceed to consider whether the applicant has made out her case i.e. that it is in the best interests of the child that she be awarded custody.  In this regard, Mr. Rasekoai made the contention that the child in question is a girl and barely three (3) years old and therefore requires the care and nurturing of her biological mother.  He added that the respondent has not raised any exceptional circumstances to the contrary that would persuade the Court to deviate from this general rule.

I have already shown that the respondent’s submission is that the applicant is a student, not gainfully employed and that her mother lives on amongst others, the sale of chicken.  Further that the child will suffer psychologically as she will have to take two taxis per day to and from school.

 

In my view, being a student per se does not necessarily make one a bad mother, nor does earning a living by selling chickens.  That the child will suffer psychologically as a result of having to board two taxis per day is the respondent’s opinion which is not based on empirical and/or expert evidence and I cannot accept it as fact.   Further, a lot of mothers combine parenthood, a career and further studies in an effort to try and improve their chances of making a better living for themselves and their families.  Thus, the fact of the applicant being a student is in my view, not exceptional in any manner.

 

Over and above these, how families earn an honest living through legal means cannot in my view be used against them as evidence that they are unable to care for minor children.  In casu, it has not been disputed that the applicant’s mother was able to raise the child up until she was a year old notwithstanding that she earns a living by selling chickens.  In addition, the applicant has also shown, and I have no reason to disbelieve her, that her mother does the selling occasionally not every day.  In my opinion, earning a modest but honest living cannot be used by this Court to condemn parents and/or label them as unsuitable to raise minor children.

 

Lastly, if the child is already attending school and the mother goes to university but comes back every evening, that is no different from the case where a parent leaves every morning to go to work and comes back to attend to her family after hours.  Indeed, this is quite common in this jurisdiction. 

 

Given these circumstances I am of the opinion that being only a three year old girl, the minor child’s best interests will be served if custody is awarded to her biological mother, the applicant.  However, the respondent should have reasonable access to the child so as not to sever the bond that has developed between them as father and daughter.

 

The applicant has also sought a prayer in the notice of motion to the effect that the respondent be restrained and/or interdicted from interfering with her and/or assaulting her either verbally or physically.  This is the reason the applicant averred made her leave the respondent and go back to her maiden home.  The respondent disputes that he ever assaulted and/or insulted the applicant and avers that he has on several occasions confronted her about her ‘unbecoming behaviour’ of arriving home very late. 

 

It is not clear to me what the respondent means by confronting the applicant on several occasions.  However, in my view, that admission does suggest that there have been differences between the parties that indeed culminated in the applicant leaving the respondent and the parties’ minor child and going back to her maiden home.  I might however add that it is not unheard of for couples to fight and/or insult each other during ‘confrontations’. 

 

Further, I might add that it is also hardly ever the case for the one to leave the other in such a manner and end up bringing and seek relief from the Court when relations are normal and peaceful and the differences are petty ones.  

 

The respondent added that if the applicant’s assertions were true the applicant would have no difficulty involving the parties’ parents.  Once again, this is the opinion of the respondent especially when account is taken of the fact that the issue of the existence of a marriage between them is in dispute so that involving the parents would not necessarily be a given under such circumstances.  This being the case, it is my view that granting the applicant such an order will not prejudice the respondent even assuming his is the correct version.

 

The other prayer that the applicant sought is that of maintenance of the minor in the sum of M2000, 00 per month.  Although no evidence was led in this regard, the respondent did not dispute in the pleadings that he would be unable to maintain the minor child with that amount per month.  Instead, it was his contention that he has no obligation to maintain his wife and child when they are not at their matrimonial home.  He added as follows in relevant parts of paragraph 5.8 of his founding affidavit:-

“If however, this Honourable Court can come to a decision that applicant and I are not properly married, then (sic) this Court is not the proper forum to decide over the issue of maintenance.”     

 

Needless to say, the above contention is misconceived and incorrect not to mention that the respondent does not even suggest what or who he believes would be the proper forum to decide the issue of maintenance.  It would be different if his submission was that if this Court finds that there is no marriage between the parties, then he cannot be ordered to pay maintenance for the applicant.   That is the position of our law.  But, insofar as the minor child is concerned, the applicant is as a matter of law bound to maintain her until she reaches the age of majority or becomes otherwise emancipated notwithstanding that the parents may not be married. 

 

The issue of maintenance is not dependant on where the child lives or in whose custody she is awarded.  I have already stated that it is not the respondent’s case that he cannot afford to maintain the child in the suggested amount.  This leads me to conclude that he will be able to maintain the minor child in the amount requested and I so find.

 

It is on the basis of all the foregoing reasons that I accordingly find that the applicant has made out her case for the relief sought and I therefore grant her prayers 1(b) (c) (d) and (e) in the notice of motion with costs on the ordinary scale.  I also order that the respondent should have reasonable access to the minor child.

 

 

 

 

N. MAJARA

JUDGE

 

For the applicant             :       Mr. Rasekoai

For the respondent          :       Mr. Rafoneke