IN THE HIGH COURT OF LESOTHO
In the matter between:
CIV/APN/104/2009
MAMOTŠABI MAHASELE PLAINTIFF
VERSUS
NTSANE KALI DEFENDANT
JUDGMENT
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 22nd DAY OF FEBRUARY 2011
This is a matter of an application for an order of court to compel the respondent to take part together with the applicant and their alleged off spring – the minor child whose paternity the reputed father – respondent herein denies. It is in the common cause that the applicant and the respondent were lovers during the period when the said minor child was conceived. The applicant claims that this minor child was born subsequent to the event when the applicant and the respondent were involved in a sexual act. The respondent denies that he was involved in a sexual act with the applicant at the time the minor child in question was conceived or at any time in his life.
The respondent has filed opposing papers to this applicant. His grounds for refusing to under go DNA Test are:
Firstly, “there is no law that provides for that.
Secondly, the order of this nature would violate his constitutional freedom of choice. He does not choose to under go blood test”
Before dealing with the merits of this application, the court must first of all deal with the points in limine raised by the respondent. He says that this court has no jurisdiction over this matter. In addition to that this matter according to this respondent, is res judicata. There is a further point in limine which like the first two points attack at the heart or root of the matter. The point of law raised is that the matter is lis pendens. The legal point which I choose to deal with last is procedural. It skirts at the periphery of the matter and has caused or likely to cause no prejudice to any of the parties. This fourth point of law concerns the person to whom the notice of the application was sent.
1. JURISDICTION
It is argued by Mr Serabele on behalf of the respondent, that this court has no jurisdiction in this matter. This means that this court cannot therefore entertain this matter. The authority on which the respondent relies isTHE DESERTED WIVES AND CHILDREN PROCLAMATION 60 of 1959. The particular Sections on which the respondent relies are; Sections 6 and 8. I intend to quote the two sections verbatim:
“6. If complaint is made to the Clerk of the Court of the area or district in which a wife or child resides by the wife or by a reputable person on her behalf or by the mother or a reputable person on behalf of the child that –
(a) The husband of the wife has unlawfully deserted her or left her without adequate means of support; or that
(b) The person legally liable to maintain the child has deserted it or has left it without adequate means of support;
The court may summon the husband or other person to show cause why he or she should not support such wife or child. In the summons and in any subsequent proceedings founded thereon the person making the complaint shall be cited as the plaintiff and the person against whom complaint is made shall be cited as the defendant.
8. (1) Upon the day appointed for the hearing and upon proof of service of the summons, the Court shall enquire into the matter of the complaint whether the defendant be then present or not.
(2) If the court is satisfied that the wife or child is in fact without adequate means of support and that the defendant is able to maintain or to contribute to the maintenance of the wife or child, the court may give judgment in favour of the plaintiff and make an order in writing directing the defendant to pay at such intervals, in such manner, and to such person as such Court may think fit, a reasonable sum or allowance for the use of such wife or child.
(3) A judgment under this section shall have the effect of a civil judgment of the Court and an order made hereunder shall be enforceable and recoverable accordingly.
The reading of these two provisions does not indicate in anyway that the Subordination Court has exclusive jurisdiction on the applications of this nature. There is no where in these two provisions where one finds that the High Court is excluded from entertaining matters to compel the alleged parents to under go the paternity test. The present matter before this court is an application for an order of Court, compelling the respondent who is the alleged or reputed father of the minor child to under go DNA Test together with the mother and the child in question. The authority relied on by the respondent – Sections 6 and 8 DESERTED WIVES AND CHILDREN PROCLAMATION 60 OF 1959.
The High Court has unlimited jurisdiction. SECTION 2 HIGH COURTAct 1978. This means that the High Court entertains all matters and any matter which is not expressly excluded from it. It has unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law in force in Lesotho. SECTION 2 (b) HIGH COURTAct 1978is more relevant to the matter under consideration. It reads as follows:
“2. (1) The High Court for Lesotho shall continue to exist and shall, as heretofore, be a superior court of record, and shall have –
(b) in its discretion and at the instance of any interested person, power to inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination;”
As it will appear hereunder, the respondent claims certain rights which as he claims, must be respected. The minor child in question also has rights which must be protected and/or enforced. Therefore in the exercise of its discretionary powers, as set out above, in terms of SECTION 2 (B) HIGH COURT Act 1978, this court has jurisdiction to determine this matter. This issue of rights and their protection will further be dealt with in the merits of this case.
RES JUDICATA
The applicant avers that she is the mother of the minor child. She has instituted an action for a claim of maintenance for the said child against the respondent in the Magistrate’s Court for the district of Thaba Tseka. It is in the common cause between these two parties that pleadings in that action have been closed. The matter has not been heard. There is no indication whether or not the matter is set down for hearing there at. If so, there is no indication when the said matter will be heard. Therefore there is no dispute between these two parties, regarding the fact that that action for maintenance of the minor child by the applicant against this respondent, is pending at Thaba Tseka Subordinate Court. There is no judgment. The case cannot be said to have ended, when there is no final judgment or order. This is the first reason why this legal point cannot succeed. There is another and different reason. The matter before this court is an application for parties to undergo a DNA Test to confirm the alleged paternity of the minor child. The parties before this court are the same as the parties before the Subordinate Court at Thaba Tseka. The matters which are before the two courts are not the same. At Thaba Tseka Subordinate Court, the applicant seeks an order of maintenance of the minor child. Applicant has instituted at Thaba Tseka Subordinate Court a claim for maintenance. At this court, the applicant seeks an order to compel the respondent together with the applicant and their alleged child to undergo DNA Test to confirm the paternity of this child. These are two different matters. The applicant is not seeking maintenance for the minor child before this court. This court therefore, in its judgment, cannot make an order for the maintenance of the child in question even although it has power [jurisdiction] to do so. e.g. The High Court has made orders for maintenance penderti lite or final maintenance orders in divorce matters. The judgment and the order of this court will not be the same as the judgment or the order of Thaba Tseka Subordinate Court. But most importantly that matter of maintenance at ThabaTseka Subordinate Court has not been heard. There is no order or judgment. Therefore the point of law raised by the respondent that the matter is resjudicate is not well taken and cannot succeed.
The Third point of law raised, concerns the state of affairs of the matter in the subordinate court. This application to compel the respondent to take part in the DNA Test with the child and mother is before this court. There is nowhere in the papers filed of record, where there is an indication that similar application has been launched elsewhere and it is pending thereat. I have pointed out earlier that the matters before these two courts: [High Court and Thaba Tseka Subordinate Court] are two different matters. They require the parties to perform different actions. At Thaba Tseka the court will order or reject the payment for maintenance for the minor child by the respondent. This court will order the respondent to under go or not to under go a DNA Test. These are two different things. There is no allegation that the application to undergo DNA Test is pending at Thaba Tseka Subordinate Court. But at Thaba Tseka parties agree that there is an action or application for maintenance for the minor child. The decision or judgment by any of the two courts involved does not repeat or necessary end the matter pending in the other court. This point too is not well taken and must fail.
The last point is procedural. The complaint made by the respondent is that the application is not addressed to him in accordance with the rules of this court. 8 (2) High Court Rules 1980. Ex facie this application is addressed to the respondent’s attorneys. The rules of court are made for the parties. They are meant to facilitate their approach to this court. They are not intended to hamper or to make it difficult for the parties to approach the court.
This particular rule is intended to identify the respondent so that he or she reacts accordingly. The respondent has been never-the- less identified and has responded accordingly. The point raised is merely academic because the parties are before court and have both presented their cases. Nobody has or is likely to suffer any prejudice. It was risky for the applicant’s attorneys to address the papers directly to the attorney rather than to the respondent. The respondent would legitimately raise this point of law if he claims not to have seen or received the papers which are addressed to and served upon his attorneys of record. But he has seen the papers despite the fact that they are addressed directly to his attorneys and has responded to the matter without any problems. This point in limine takes the matter nowhere. It is also not well taken and it falls to be dismissed.
All the points in limine raised by the respondent have not been successful. The matter must therefore fall to be determined on its merits.
MERITS
The applicant and the respondent were lovers. The applicant is the mother of the minor child whose paternity is in question. The mother claims that the respondent is the father. It is a common saying that the mother is the only person who knows for sure who fathered her child. She claims that the respondent is the only man with whom she has had sexual relations in her whole life. The respondent denies paternity. He claims he has never had sexual relations with the applicant in all his life. The mother by nature of things cannot deny that she is the mother. She has no choice. How come the mother has no right of choice to be the mother? The child is hers. There must be a man who together with her bore this child. She cannot produce a child alone without the aid of “so called the father”. Who is the father? The respondent says he has a constitutional right of choice. Is there such a right? Can he therefore legally choose to be or not to be the “father”? At what stage? Before or after the fact? My search for such a right in our 1993 Lesotho Constitution has not been successful. Respondent claims that the right to choose, is his constitutional right. It is his alone? Does the mother have the same right? Apparently not. The child is on her lap or in her hands. It should not be her mere acceptance of paternity which denies her the freedom to choose to be a parent. It is the fact of being the alleged or reputed mother which denies her the right to choose.
There is a contest for rights here. The respondent claims that he does not choose to undergo DNA Test. Therefore the court cannot compel him to undergo such test. The High Court is the upper guardian of all minors.
Does this minor have a right to know his parents? Is the parent entitled if he so chooses, to withhold the knowledge of paternity from the child or from the courts? He has no such right. The High Court as the upper guardian of all minors. The High Court must assist the minors to find and know their parents. The parent cannot be allowed to choose to refuse or deny the minor child to know who the parent is or parents are.
The parents have an obligation to care for their children. Neglecting a child may sometimes constitute a criminal offence. The respondent does not want to be found to be the father. The mother has no doubt whatsoever that the respondent is the father. The only secure and reliable method that can convince the doubting father that he is the father is forensic medical evidence if the respondent doubts the evidence of the mother. He cannot be allowed to stop the search for the truth by his simple dislike of the fact to be established or simple dislike of the search itself.
The High Court as the upper guardian of all minors is duty bound to assist this minor child to know his father. It is the child’s right to know its parents. Tšepo should not permanently be “Moramang”. The search for the father must be made and must come to an end. The search cannot be denied on the flimsy grounds that the reputed or alleged father has a right of choice not to undergo the DNA test. The search must start with the man who was with the mother at the time the minor child was conceived. It will be unwise to ignore the scene of the crime and go to carry out investigations elsewhere. That would be an exercise in futility. Respondent does not know who the father of the minor child in question is. Why does he want to prevent the start of the search for the alleged father? He does not claim that “likopane mohoanng kapa li kopane naheng!” The only bull in the kraal with the cows must be tested and eliminated, before testing Those that are outside.
If a man is found at the scene of the crime, investigations of the alleged crime must start with him. If the respondent was the mother’s lover, he must be tested if he denies paternity so that the question of paternity can be answered positively or negatively but there must be an answer. The respondent just like the mother he cannot have a right to choose to test. The protection of his “so called constitutional right of choice” denies this child a right to know his parent. Which right must the High Court protect?
(1) the right of choice of the alleged father? Or
(2) the right of the minor child to know his father?
Which right is the High Court obliged to protect when there are two or more rights competing for its protection? As the Upper Guardian of all minors the High Court has a duty to protect the right of the minor against that of an adult father. The alleged father’s right of choice cannot be allowed by the High Court to deny the minor the right to know who his father is. He must take DNA Test if that is the only way to establish that fact of paternity.
COSTS
If there are financial implications, they should be taken care of by the respondent because this application is granted as prayed with costs which should include the cost of the DNA Test.
K.J. GUNI
JUDGE
For Plaintiff: Ms Mokwena
For Defendant: Mr Molise
