CIV/APN/186/05
IN THE HIGH COURT OF LESOTHO
In the matter between:
'MAMPHELI SEFEANE APPLICANT
AND
TSEPO SEFEANE RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G. N. Mofolo On the 23rd day of September, 2005.
The applicant has approached this Court claiming an order as follows:
Custody of minor children Mpheli and Kori
Costs.
In her Founding Affidavit applicant says she is a divorcee residing in Pretoria, the Republic of South Africa and although she has acquired a South African identity document her roots are Lesotho where all her relatives are resident. She says she works for the World Health Organization, (paragraph 1). Applicant has also deposed respondent is married to one Lesimole (born Moletsane) and respondent and his wife stay at Polo Grounds, Maseru. Also that respondent is self-employed (paragraph 2).
In the background to her case, the applicant has alleged:
Respondent had her arrested for contempt of Court to found jurisdiction on the claim that she removed the child Kori from respondent's custody. She claims despite the fact that she had not seen or had knowledge of the Deed of Settlement she was convicted of Contempt of Court.
Despite the conviction she has deemed it necessary to bring the present application for the reason that while Mpheli attends school at Lesotho High School Kori attends school at Valhalla Primary School in Pretoria. She says in terms of the Deed of Settlement respondent had been granted custody of the minor children and it is this she intends varying for the reason that her sons are said to be staying with respondent and his wife and their infant son. According to applicant, she had been living continuously with her sons (1989 to 1994) when respondent snatched them from her in Pretoria and deposited them with his mother in Butha-Buthe. Applicant says at the time the children were snatched away from her both of them were relocated to South Africa for then they were South African citizens and under the South African jurisdiction. She says it was while the children were staying with respondent's mother in Butha-Buthe that respondent married Lesimole Moletsane in 2002. Kori had been enrolled at Phethahatso English Medium School where she pays the school fees.
Applicant has deposed she has received several reports of the children's ill-treatment and neglect by respondent and his wife with
respondent's wife assaulting Kori. Applicant also alleges applicant has deprived the children of the cellphone with which she communicated with
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her children. She also says respondent threatens Mpheli unless he changes his attitude and becomes friendly with his wife. Applicant claims the children are in a state of neglect and are not properly fed or adequately clothed.
In answer to these charges by the applicant, I have found respondent's answers interesting, if not amusing.
In her Founding Affidavit and at paragraph 2 applicant has alleged that (2.1) "respondent is currently married to one Lesimole (born Moletsane). In his opposing Affidavit respondent has not admitted or denied that he is married to and lives with the said Lesimole except "to admit that my wife lightly slapped Kori —" and "my wife and I do not interfere with the welfare of the children." (para. 6 (a)). As it is, this is information within the knowledge of the respondent which cannot be verified except by the evidence of the children, an unwise step and not in the best interest of minor children to testify against their parent. Applicant has deposed at para. 5.3 (a) that she stayed continuously with her children (Mpheli and Kori) from 1989 to 1994 when in February, 1999 "respondent snatched them from me in Pretoria and deposited them at his mother's house in Butha-Buthe."
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Applicant has not answered applicant's serious allegations contained in the rest of paragraphs 5 possibly because the respondent is of the view he can pick and choose which allegations to answer or answer them at his own sweet time. I say so because paragraph 3 refers to annexure "A". Now, annexure "A" is South Africa's Home Affairs note dated 21 February, 2005 declaring "Mr T. E. Sefeane and family to be persona non grata" As to what is meant by family I don't know since the respondent has a new wife and child according to papers before me and also according to papers before me applicant is a South African citizen and it follows her children would follow her citizenship in normal course of events. According to his paragraph 2, respondent alleges "applicant made attempts to acquire a South African identity for the children and I illegally" and "as a result we were banned from residing in the Republic." In my view if it is true applicant was responsible for forgery or misrepresentation it's her who should have faced the music but she does not seem to have incurred the wrath of the authorities in South Africa.
On assault of children paragraph 6 has sub-paragraphs (a), (b) and (c) and yet respondent has seen it fit to answer paragraph 6 (a) ignoring (b) and (c) which respectively charge respondent of assault and child abuse,
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removing a cellphone from the child "to make it impossible for me to communicate with them" and respondent seriously assaulting
Mpheli by "hit him with a stick until it broke into pieces"; again "and then he hit the child with part of a belt with a buckle until the child was almost unconscious." I hate the pick and choose and terse manner in which respondent answers these serious allegations. They should, in my view, be answered specifically and issuably.
Ms. Kotelo for the applicant was inclined to call the children to testify. In fact there were occasions when the matter was postponed
by reason of one of the children writing an examination and it was not possible to call him to testify and the application had been postponed. It is just as well that Ms. Kotelo saw the light and decided, ultimately, not to call the children in evidence. As I have remarked above, the practice of calling children in evidence against their parents is undesirable in that children are not to be embroiled in their parents' misunderstandings and grudges, particularly children of tender age liable to be, on divorce, awarded custody of the one or other of the parents. Speaking for myself, I think there is enough evidence of record to decide this case without oral evidence. There was in this case a Deed of Settlement by which the respondent was awarded
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custody of the minor children. The Deed of Settlement has not been made available to this Court much as it should have been so made
available. The Court has endeavoured to find it and has found it. From it, it appears that on 7 December, 01 such a Deed of Settlement
was signed in terms of which:
The divorce proceeded uncontested.
Custody of the minor children was awarded plaintiff with reasonable access by defendant.
Parties undertook to consult each other in all major decisions concerning the upbringing of the minor children especially then-education.
There has been an allegation that as the defendant was not available someone was allowed to sign for her. If this is the case, that somebody should have shown that the document was not signed by the defendant in person by signifying that so-and-so signed for the defendant. As it is, there is no such indication and the document appears signed by M. Sefeane giving the impression that defendant was impersonated notwithstanding the fact that defendant gave permission for papers to be singed on her behalf. It would seem, however, that on the signing of the Deed of Settlement the younger child Kori was still in Pretoria in defendant's custody. In answer to defendant's allegation that Kori was attending school at Valhalla Primary School in Pretoria, plaintiff has retorted at Paragraph 5 "-----Applicant
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flouted the custody order by refusing to return Kori to Lesotho January, 2005." Well, by flouted I suppose the plaintiff is alleging defendant impugned or disobeyed the court's order. How was this disobedience of the court's order when the child was still at school? Shouldn't he have been released to join plaintiff at end of term. Was it justified to disrupt the child's school term? In any event disobedience of a court order has to do with being served with a court order and ignoring it. It doesn't seem that defendant/applicant was served with a court order for instead plaintiff/respondent had defendant/applicant arrested to found jurisdiction. I understand the contempt proceedings are on appeal but if plaintiff/respondent believes this court will lean towards him because defendant/applicant does not obey court orders he is mistaken for although plaintiff/respondent was awarded custody defendant/applicant had reasonable access and in any event it does not appear that he disobeyed a court order duly served on her.
In any event defendant/applicant has applied for the variation of the order and among some of the reasons for change of heart are that:
Plaintiff/Respondent now lives with another woman who has a child of her own and she is not the right and proper person to care for and bring up her children;
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The children are in a state of neglect and not properly cared for
The children are ill-treated and abused.
Plaintiff/Respondent is unable to pay Kori's upkeep and school fees.
As to custody, it would seem the law has "grown away from rules directed towards penalizing the guilty spouse towards a recognition
of predominance of the interests of the child (see Fletcher, 1948 (1) SA 130 (A), at 144) which are always the paramount consideration (see Fletcher above, Goodrich v. Botha, 1954 (2) SA 540 (A); Fortune 1955 (3) SA 348 (A); Shawzin v. Laufer 1968 (4) SA 657 (A); Dionisio 1981 (3) SA 249 (ZA); Van Onderhove v Grubes 1981 (4) SA 857 (A). And, as a general rule, the disposal of a child cannot be decided on affidavit for the Court must have the parties and their witnesses before it so that it can itself form an opinion as to what is the best interest of the child - see O'Brien v Brooke 1956 (1) PH B17 and Viljoen 1964 (1) SA 198 (T) though account has to be taken in this application that counsel agreed such a procedure was unnecessary by reason of facts being of a straightforward nature. The court might also butt in to say that Ms. Kotelo for the defendant/applicant was inclined to call the children in evidence but was dissuaded otherwise as an unsafe step in the interest of the children to side with or against their parents.
Also, in deciding who would serve the best interest of the child the court
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takes into account all the circumstances including social and financial circumstances of the spouses, their character, temperament, past behaviour towards the child; its religious and educational needs and personal preferences. It has also been said in French 1971 (4) SA 298 (W) at 298H F S Steyn stressed a sense of security translated to into "the child must feel that it is welcome, wanted and loved." A far cry from the circumstances of the plaintiff/respondent who has a divided allegiance towards his children by reason of his first marriage and second marriage. We shalln't say much of plaintiff/respondent's wife who has no reason to love
defendant/applicant's children looked upon by her as of nuisance value and interfering with the welfare of herself and her child. I do agree there are parents who love then-foster children much as their own; but with respect such parents have to be treated as exceptions to the general rule. It has also been said a truism stands, namely "that a mother's affection is better adapted to the care of a young child than a father's and as was said in Myers v Leviton 1949 (1) SA 203 (T) at 204
"There is no one who quite takes the place of a child's mother. There is no person whose presence and natural affection can give a child the sense of security and comfort that a child derives from his own mother -— an important factor in the normal psychological development of a healthy child," per Price J.
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Undoubtedly, as compared to the home circumstances of the custodian father, the home circumstances of the non-custodian mother are more satisfactory given the fact that since divorce applicant remains unattached ostensibly to give all her love to her children while the father has seen it fit to share love due to her children with others resulting in divided loyalty.
It would appear the fact that at time of hearing action for custody the child is outside the jurisdiction of Court is no impediment in granting the order (see Johnson 1940 (1) SA PH B7; Eliasov 1941 (1) PH B39 (W) and conversely, the fact that at hearing an application for custody of a child the child may resume a foreign jurisdiction is no impediment to granting the custody order for in either case the Court may order that the child be returned to the jurisdiction of the custodian parent for what's important is the interest of the minor child. In this particular application, Lesotho is a member of the Southern African Development Community with reciprocal protocols and there can be no danger of the children being placed irrevocably outside the jurisdiction of this court should the applicant succeed in her quest. To be precise, in this case having regard to the circumstances of the case, the Court prefers the mother as custodian of the minor children
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and the father as their guardian for the reason that I am of the view that the custodian parent's right of control is contrary to the interest of the children.
In so far as variation of an order as to custody, guardianship and access is concerned, it has been said the onus is on the applicant to show good cause for the variation though there is no onus on him to show that the situation that has arisen was not envisaged at the time the previous order was made or that then there has been a change in the circumstances of the parties or any misbehaviour or shortcoming on the part of the respondent, or that the children are suffering injury or prejudice under the existing order for all he has to do is to satisfy the Court, upon a balance of probabilities, that it is in the best interest of the child to make the variation order - see Manning, 1975 (4) 659 (A); Van Ondenhove v. Gruiber, 1981 (4) 857 (A) and cases quoted on footnote 106, p. 104, 5th Ed. Hahlo's the South African Law of Husband and Wife. It has been contended on behalf of the plaintiff/respondent that in signing the Deed of Settlement defendant/applicant acquiesced to and condoned the situation existing as to custody of the children or as was said condoned the situation that had arisen. I do not think so for all that the defendant/applicant has to prove on a
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balance of probability is that the best interest of the children requires variation of the custody order.
In Richies, 1981 (O) PH B4 (1) van der Heever J. found:
"A parent who unnecessarily deprives a child — of its other parent, and breaks down the image of that parent in the eyes of the child, is a selfish parent; robbing the child of what should be its heritage in order to salve his own wounds."
Indeed when plaintiff/respondent caused defendant/applicant to be arrested to found jurisdiction, this was a most selfish act on the part of the plaintiff/respondent, it was not only selfish, it was totally unnecessary save breaking down the image of the defendant/applicant
in the eyes of her children thus robbing the children of what should rightly be their heritage. I have already said that defendant/applicant is not guilty of disobeying any existing order. And while plaintiff/respondent cannot be said to have in any way disobeyed or frustrated the court order, by painting a dirty picture of the defendant/applicant in the eyes of the children this Court is unable to say that plaintiff/respondent is a worthy custodian quite apart from the fact that there is change of circumstance since the award of custody for it is common cause that since the custody order plaintiff/respondent has re-married necessitating the new wife to
took after the welfare of children of the previous marriage. The Court is of the view that since there is change of
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circumstance it is necessary to vary the existing order more so because in this Court's view it is not in the best interest of defendant/applicant's
children that they should be looked after by another woman. I do not believe plaintiff/respondent, his paragraph 6 (a) is a thinly
disguised attempt to protect his wife in the ill-treatment of the child Kori. Nor am I impressed with the confused and erratic way in which the plaintiff/respondent answers or has answered defendant/applicants allegations. In his paragraph 6 he has answered
para 6 (b) and (c) in his paragraph 7. The view of this Court is that plaintiff/respondent has deliberately jumbled answers to confuse and mislead the Court for a paragraph not fully answered would lead the Court to erroneously hold that it was not answered as has indeed happened in respect of para 6 (b) (c). Answers have to be orderly and systematic.
In the result the custody order is varied to the extend that defendant/applicant is awarded custody of the two minor children namely, Mpheli and Kori and by the same token by order of this Court the children Mpheli and Kori are returned to the jurisdiction of the
custodian parent the defendant/applicant herein. As to access, the plaintiff/respondent will enjoy normal rights of access provided that such access does not interfere with the residential and educational needs of the children.
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It will be such interference if the children are not returned to the custodian parent on dates agreed and the children miss school days as a result.
JUDGE
For the Applicant: Ms. Kotelo
For the Respondent: Mr. Matooane
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