CIV/APN/34/84

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

'MABAFOKENG
TSEHLO Applicant

and

FRANCIS
TSEHLO Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Mr. Justice B.M. Molai on the 3rd day of July, 1988

I have
already dismissed this application for the following reasons.

The
applicant herein sought, against the Respondant, an order for custody
of the child, Bafokeng Tsehlo, and costs of the application.
The
Respondent intimated his intention to oppose the application. The
founding and the answering affidavits were filed by both
the
Applicant and the Respondent, respectively. No replying affidavit
was, however, filed.

In as far
as it was relevant the facts disclosed by the affidavits were that
the applicant and the Res­pondent, who was a school
teacher at
Nyokosoba Primary School in the area of Roma, got worried to each
other by civil rites in community of property, on
16th July, 1975.
The marriage still subsisted. Only one child

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Bafokeng
Tsehlo, was born of the marriage, on 26th March, 1977.

In April,
1979 the applicant left the marital home and came to look for
employment in Maseru urban area. She took with her the minor
child of
the marriage. According to her, the applicant did so with the
approval of her father-in-law, a fact which was, however,
denied by
the Respondent, The father-in-law filed no affidavit to confirm the
applicant's allegation and there was, there-fore,
only her word
against that of the Respondent on that issue which, for obvious
reasons could not be resolved on papers.

In June,
1979 the Respondent came to where the Applicant was staying in Maseru
and took the child back home. Shortly there after,
the child was
found to have epileptic fits and had to be admitted at Roma hospital.
In applicant's avermant the child had ever
since been in and out of
the hospital. That was again denied by the Respondent who averred
that the child was discharged after
only two days and had never
returned to the hospital.

It was
clear from the affidavits that at the material time the child was
staying with the Respondent at the matrimonial home whilst
the
applicant lived alone in Maseru, She did not disclose how she came to
know that the child who was living with the Respondent
far away from
Maseru was in and out of the hospital. In the circumstances it was
sensible to accept the Respondent's averment as
more probable than
that of the applicant on

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this
point.

Be that
as it may, it was not disputed that in September, 1982 the Respondent
allowed the Applicant to take the child for medical
check up in
Maseru. According to him, the Respondant allowed the applicant to
take the child to Maseru on condition that she would
return it home
after the medical check up. However, the applicant never returned the
child home. She instead enrolled it for schooling
at St. Bernadett
Primary School in Maseru on 24th January, 1984.

It was
common cause that after the applicant had taken it to Maseru the
child was referred to Dr. Makenete who prescribed for it
medicines to
be administered dally. According to the applicant, Dr. Makenete also
advised that the child should stay in Maseru
so that when and if it
had convulsions it could be easily referred to him.

The
Respondent's story was slightly different. Although he conceded that
Dr. Makenete had advised that the child should remain in
Maseru for
the reason disclosed by the applicant, the Respondent averred that it
was for a duration of only three months after
which the doctor
specifically said he could take the child home.

No
affidavit was filed by Dr. Makenete to confirm the averment of either
the applicant or the Respondent. What he was alleged to
have advised
remained, therefore, hearsay and of no evidential value,

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In his
answering affidavit, the Respondent con­tended that there was no
justification for the applicant to enrol the child for
school at St.
Bernadett Primary School without his consent. He, however, did
consede to have taken the child home from Maseru.
His reasons for so
doing were that the applicant was working in Maseru and could not
properly look after the child. In December,
1983 she had to take the
child to her maiden home because its nurse-maid was sick. The child
then became ill and had to be hospitalised
at Mapoteng hospital for a
day or two. On the other hand, he (Respondent) himself was teaching
at Nyokosoba School which was very
close to the matrimonial home. He
was taking the child with him to and from the school and was,
therefore, better able to afford
it the required constant care.
Consequently the Respondent prayed that the application be dismissed
with costs.

I was
satisfied, from the affidavits, that Respondent and applicant were
husband and wife married by civil rites in community of
property. The
marriage still subsisted and no proceedings for either divorce or
separation had been instituted. The child, Bafokeng
Tsehlo, had been
born of the marriage between the applicant and the Respondent. It was
therefore the legitimate child of the Respondent
and the applicant
who were respectively its father and mother.

The
salient question was, therefore, whether or not, in the circumstances
of this case, the court had jurisdiction to deprive the
father of the
custody of his

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minor
child and award it to the mother. While in the opinion of the
applicant the answer was in the affir­mative the respondent

contended that it was in the negative.

In Calitz
v. Calitz 1939 A.D. 56 at p. 63 Tindall, J.A. had this to say on the
issue:

"The management of the minor's property and the control of the
minor's eduction belong to the father solely: as to the control
of
the minor's person, though the mother shares it with the father, in
case of difference of opinion the father's authority prevails.
There
is no doubt that such is the law .... In my judgment the court has no
jurisdiction, where no divorce or separation authorising
the separate
home has been granted, to deprive the father of his custody except
under the court's powers as upper guardian of all
minors to interfer
with the father's custody on special grounds, such for example as
danger to the child's life, health or morals."

I
entirely agreed. It was significant to bear in mind that when he
realised that the child was suffering from epileptic fits the

Respondent wasted no time in taking it to Roma hospital. He
subsequently allowed it to be taken to Dr. Makenete for check ups.

Moreover, the Respondent was living with the child at the matrimo..
nial home. He was taking it to and from the school where he
himself
was a teacher and, therefore, better able to give it consistent care
than the applicant who was a working woman. By and
large, I found no
special grounds on which the court as upper guardian of all minors
could justifiably interfere with the Respondent's
custody over the
child, Bafokeng Tsehlo.

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The
application was accordingly dismissed. This being a family dispute I
made no order as to costs.

B.K.
MOLAI

JUDGE

3rd
August, 1988.

For
Applicant : Mr. Moorosi

For
Respondent : Dr. Tsotsi.