CIV/APN/416/87

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

MALEFETSANE
NKHAHLE Applicant

v

'MANEPO
THAKANE NKHAHLE

(born
MOEKETSI) Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 27th day of October,
1988

This is
an application by Notice of Motion for confirmation of a rule nisi
issued by the learned Chief Justice on 18 December 1987
in regard to
the custody of a child pendente lite. The main part of the order was
made in the following terms, to show cause why:.

1. The
   Respondent should not be inter­dicted and/or restrained from
   removing and/or taking the child namely, Nepo Nkhahle, out
   of the
   jurisdiction of this Honourable Court, until the fina-lisation of
   divorce proceedings in­stituted by the Applicant
   under CIV/
   APN/147/84

   
   

2

Alternatively

1. The
   Respondent should not be arrested and kept in the custody of the
   Police of Maseru Central Charge Office until such time as
   she has
   caused the said child to be brought back to Lesotho in the custody
   of the Applicant, who is permanently staying within
   the
   juris­diction of the above Honourable Court;

   
   

2. The
   Applicant should not be granted the custody of the said child
   pendente lite.

   
   

I have
now perused the Court file in CIV/APN/147/64 which is an application
by this applicant for restoration of conjugal rights,
failing which a
decree of divorce on the grounds of the respondent's desertion; as
well as an application for custody of the boy
Nepo Nkhahe born on 7
January 1981. The only action shown on that four years old file is
the granting of an application on 16 July
1984 for service on the
respondent by edictal citation. Mr Mphalane for the applicant
indicated that there was no record of service
or publication.

Since the
respondent was served in the present application and she is
represented by an attorney, I am unable to see the purpose
of
pursuing the edictal citation procedure. There seems to me to be no
good reason for all this delay in disposing of the main
application.

It
appears that the applicant is a town clerk

3

in
Lesotho and the respondent works in some unspecified job in
Johannesburg. She should have supplied the Court with full
information
about this

In answer
to the applicant's allegation that the respondent is guilty of
desertion, the respondent has accused the applicant of
adultery. If
both parties desire a divorce it should not be too difficult to come
to some agreement and so arrange the conduct
and expeditious disposal
of the main case. Even if that application is to be opposed, since it
has been pending for so long, I
would think that an early hearing
date could be arranged without too much difficulty. The earlier
edictal citation procedure can
be disregarded and direct service can
now be effected.

With
regard to the child, apparently as a result of the interim order made
last December, he has been in the custody of his father
the applicant
in Lesotho since then. When making the interim order the learned
Chief Justice held that it appeared to be in the
interest of the
child for him to remain in the jursdiction of this Court. ' Before me
Mr Mphalane cited various South African decisions
in which similar
opinions were expressed, and I am of the view that, generally
speaking, this is the most appropriate attitude
to take unless there
are exceptional circumstances.

The
eventual decision regarding custody of the child must, of course, be
made at the conclusion of the hearing of the main application.
The
child is at school

4

here now
and it would be unsettling to allow him to be moved away and then,
perhaps, moved back again later after the main case
has been disposed
of.

I am
somewhat critical of the "lay out of this present Notice of
Motion because it has two paragraphs (a) which makes it rather

confusing when referring to them. This should be avoided in future.

This
application is allowed and the Rule is con­firmed with regard to
the first paragraph (a) restraining the respondent from
removing the
child out of the jurisdiction, and paragraph (b) granting the
applicant temporary custody of the child pendente lite.
The costs of
this matter shall be costs in the main cause.

Meanwhile
the parties must take prompt and effective action in the application
CIV/APN/147/84 to see to it that it is disposed of
without any
further unnecessary delay. The Registrar should endeavour to fit it
in and fix it for hearing as soon as it is ready.

P. A. P.
J. ALLEN

JUDGE

2 7
October 1987

Mr
Mphalane for Applicant

Mr Pheko
for Respondent