CIV/APN/25/82

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

NTSOAKI
MAKOALA Applicant

v TSIKILO
MAKOALA Respondent

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 9th day of
November1982

This
application, which was launched on the 28th January 1982, came up for
hearing initially before my brother Mofokeng J on 8th
February 1982.
The matter was opposed and by consent was postponed to the 18th
February 1982. The application was for an order
to commit the
respondent Tsikilo Makoala to prison for contempt of court for
disobeying a Court Order consisting of four paragraphs
granted by my
brother Mofokeng J, as long ago as 12th November 1981, in consequence
of divorce proceedings between Ntsoaki Makoala,
now the applicant,
and the respondent Tsikilo her former husband in which a decree of
divorce was granted. (CIV/T/130/80) The parties
had on,that day
agreed upon a settlement with regard to the custody of two children
of the marriage, which was made an Order of
Court providing for
awarding the elder son Tsele to the applicant, and the younger son
Letuka to the respondent on the understanding
(not on condition - see
the Judge's original manuscript) that the younger child "resides
with the respondent's parents in
Quthmg". The order also
provided that in the long and short school vacations, both children
will spend alternate school holidays
with each of the parents. The
separation of the children was perhaps unusual though not of rare
occurrence, (See Kennedy v Kennedy
1929 EDL 257). The divorce
proceedings

2

were
originally strenuously defended, but eventually went undefended, save
as to custody, and the problem of the children which
was the bone of
contention was not therefore aired or canvassed before Mofokeng J
either at the divorce hearings between 31st March
1981 and 22nd June
1981 or on 12th November 1981 although we now know that a lot of
haggling had gone behind the scenes, which,
with the consent of
attorneys of both parties, it was my misfortune to investigate, in
addition to the proceedings for contempt.
The respondent had denied
by an affidavit filed on 17th February 1982 committing an act of
contempt and filed a counter application
to vary Mofokeng J's order
to give him custody of the boy Tsele as well, and the applicant in
turn, with leave of the Court, and
consent of attorney for
respondent, also applied for the variation of the original settlement
to vary Mofokeng J's order praying
that custody of both children be
given to her. The now divorced parents seem to recognise that the two
children should be with
one or the other parent and that separation,
as originally contemplated, would not be desirable. If the dispute
was simply between
husband and wife the matter would have been
resolved a long time ago but the parents of the respondent,
especially his mother Mrs.
Matsikilo Makoala (DW2) accentuated this
tragedy to an extent I have not seen in the annals of Lesotho
matrimonial legal history,
nor has the time that elapsed between
Mofokeng J's original order and today helped matters. The delays that
occurred were not one
sided but examination of the chronology of the
events which commenced on 12th November 1981 and ended on 29th
September 1982, and
indeed on the evidence heard, the respondent's
parents were quite content with the status quo and in no hurry to
change it, on
the basis I suppose, that as time progresses, the Court
will be more reluctant to disturb it. The two children are now one
year
older than they were in November 1981.

Two
attempts were made by the applicant to get hold of her children in
furtherance of the Court Order of the 12th November 1981.
Paragraph
No.l of the Order was not expressed to take place immediately and
thus there was a lacuna, which the applicant resolved
in favour of
the child

3

Tsele's
welfare, by delaying to obtain the fruits of the Order until the end
of his X - as school term due about mid December 1981.
Both children
were then with respondent's parents in Quthing, as indeed they had
been, on and off, though perhaps more on than
off, than with
respondent himself, when the relations between husband and wife,
which culminated in the divorce, reached its lowest
ebb in late 1977
or early 1978. The position then is that except for a brief period of
a day or two in 1979 (which evidence I believe)
when the applicant
saw and spoke to her children and gave them gifts when they were with
a woman relative in Morija she had no
access to them.

The first
attempt at enforcing the Order came on 17th December 1981. The
applicant went to fetch both children from Quthing. Tsele
in terms of
paragraph No.l and Letuka in terms of paragraph No.4 of the Order for
by then this had also come into operation. The
respondent's parents
allegedly refused to release the children and asked the applicant to
"come on another day when the respondent
is present". The
applicant went back to her former husband (in Maseru) and procured
from him a letter addressed to his parents
in Quthing to release the
children to their mother. Armed with this letter the applicant made
her second attempt on the 20th and
21st December 1981. The
respondent's parents again allegedly refused to release the children.
The parents (Mr and Mrs Makoala senior)
testify that the children
refused to go. The applicant (who was accompanied by her own mother)
then proceeded to the chief of the
village to complain about her
parents-in-law's none compliance with the Court Order. The chief sent
his messenger to the respondent
parents' house with a letter. He was
rebuffed by a reply from the respondent's father Mr. Bennett Makoala
(DW1) the text of which
is as follows:

"Annexure
C"

P.O. Box
3, Alywanskop

21.12.81

Chief of
Paballong, Paballong.

Chief,

I have
received your letter of 21/12/81.

4

I have no daughter-in-law in the name of Ntsoaki Makoala.

As for Ntsoaki Matsela who demands that the children of Makoala
should be forced to visit her is a problem, I will not allow my

children to be dragged to a place they do not want to go to.

This matter will therefore be attended to by the rightful persons.

Thank
you.

Sgd. B.
Makoala

The
second attempt of the applicant to obtain the fruits of the Order in
her favour took place on January 7th 1982. On this occasion
the two
children were in Maseru and they had been brought from Quthing by Mrs
Makoala senior, for what reason no one knows, presumably
to see their
father the respondent, on one of her periodic visits to Maseru to
consult her own doctor about some ailments she suffers
from, and no
doubt to visit her daughters. The respondent was an only son. The
children were in a house at Thamae near Maseru,
The applicant having
been apprised of their thereabouts, accompanied by a deputy sheriff
Mr, Masienyane (PW2) proceeded with a
messenger (detailed by the
chief of Thamae) Mr. Lehlohonolo Moloi (PW3) - to get one of the
children Tsele, There are some variations
as to what happened on this
occasion. It is common cause that the deputy sheriff did not possess
a "writ of execution"
issued from the office of the
Registrar at the instance of the applicant in terms of Rule 46 of the
High Court Rules. He had however
a copy of the Court Order. He says
that when he saw respondent at Thamae he asked him to hand over the
younger child Letuka. He
says the child Letuka showed no reaction and
when he said "Let us go" the boy did actually begin to
move. The respondent
himself however, calling his wife a 'nyatsi' (in
front of both children) told the deputy sheriff "a person can
die".
He would not let the child go. The deputy sheriff denied
on cross examination that the child refused to go or that he ran
away.
The witness Lehlohonolo the chief's messenger says the child to
be taken was not Letuka but Tsele and when they came to the house

respondent sent for his mother who was then inside. She

5

told them
"There are still matters to be settled about the children".
This witness continues by saying that when the deputy
sheriff said
his order was to take Tsele, the boy was called. He confirms the
respondent called his wife a 'nyatsi'. The boy Tsele
made no
movements. Now the word 'nyatsi' in Sesotho does not necessarily mean
a harlot or a prostitute as the word has been translated
to me. It
means actually a "concubine", i.e. a woman who is not
married to the man she lives with or the men who, from
time to time,
she had lived with. What is quite clear is that it is by no means a
complimentary word to a man's former wife, unless
she was sleeping or
had slept, at one time or the other, with another man or men, and
there was no suggestion throughout the proceedings
that she ever had.
On the contrary all speak of her highly. Although the decree of
divorce was granted on the grounds of the applicant's
desertion, that
desertion was more technical than real. As usually happens when a
marriage had irretrievably broken down, the niceties
of our archaic
matrimonial laws are used to get through with the question of status
by consent leaving important matters regarding
the children and their
welfare to another day. My impression of the applicant is that she is
a caring mother of decency and integrity.
Her fault, if it is a fault
at all, was her inability to get along with a powerful mother-in-law.
To resume the narrative the respondent
stood between Tsele and the
witness and said he would rather die if the witness should touch the
child and explained that when
the applicant went to fetch them from
Outhing they had "run away" from her. This latter statement
was based on what respondent's
mother (Mrs Makooala senior) or his
father (Mr, Bennett Makoala) had told him, for the respondent was not
present then.

I am
certain that deputy sheriff Masienyane was mistaken when he said the
order involved taking the boy Letuka not Tsele. The order
was clear:
it was Tsele who was to go to his mother's custody for by 7th January
1982 schools were about to start so that paragraph
4 of the Court
Order with regard to Letuka spending X-mas holidays with his mother
was superannuated or soon to be.

Both the
deputy sheriff and the messenger of the chief

6

testify
that the respondent's mother Mrs Makoala after initially attempting
to hinder the execution of the Order or to delay it
(her remarks
previously referred to indicated this) finally advised the respondent
to let the child Tsele go. It was the respondent
on this occasion who
refused and stood between the deputy sheriff or the chief's messenger
(it does not matter whom) and Tsele
and called his wife names and
uttered his threats. I reject the respondent's evidence to the
contrary and I am of the view this
was an act of contempt, I do not
subscribe to Mr. Sello's submission that before contempt can be
committed there need be a "writ
of execution" in an order
of this nature. It was executable immediately, certainly by that
date, if a court officer was present.
There was no question of the
applicant and the deputy sheriff using force. I did mention that
respondent's mother had somewhat
relented. She would not have
relented if Tsele refused to go.

The boy
Tsele was then without a shirt on (it was mid summer and probably a
hot day) and according to the messenger, when he and
the deputy
sheriff were about to go with Tsele, the latter told the boy to put
"a shirt on" but respondent's mother interjected
by saying
he could go as he is, i.e. without a shirt because his clothes belong
to her or that she had paid for them. Mrs. Makoala
senior denies this
but the chief messenger is an independent witness, well outside the
arena of conflict, and had no axe to grind.
There is no doubt
whatsoever in my mind that he is a truthful witness.

I should
point out that the dispute about custody of the two children had been
going on between the parties since their final de
facto separation in
late 1977 or early 1978, and came to a peak in March 1981, when their
respective attorneys became involved
as well. In all fairness the
attorneys did try and persuade the parties, for the sake of the
children, to find a modus vivendi,
without a costly court process.
They thought they succeeded in the settlement of the 12th November
1981 which, as we have seen,
was not to be.

The
applicant and respondent marriage by civil rites in community of
property on the 4th January 1971 was

7

preceded
by kemariso or chobeliso converted later into a customary law union
by the parents of both parties agreeing on the sum
of M73 in lieu of
bohali. If this was the whole bohali to be paid, the price of cattle
ruling on that date (1969/1970) amounted
to four heads, which was
rather below the average, so the applicant was not really a very
expensive bride.

The boy
Tsele was born on 11th March 1970 and the boy Letuka was born on 11th
July 1971 according to the divorce papers. By November
1981 they were
11.8 years old and 10.4 years respectively. They lived with the
applicant and respondent some 7 years and 6 years
of their lives
before the final breach. The relationship between the applicant and
respondent was not all honey, at any rate, not
in the last two years
between 1975 and 1977, whilst between the applicant and her mother in
law Mrs. Makoala senior it was not
honey at all from inception - a
period of some 11 years. Mrs. Makoala senior gave us her reasons for
this. She cited three reasons,
and if Mr, Sello had allowed her a
little more rein, I would have listened no doubt to a lot more, I
shall presently go over these
but the position today is this: the two
boys had been living with their grandparents in Quthing for the last
5 years or so, the
respondent husband having no physical custody (he
worked in a Maseru casino) but unlimited access or as much access as
his own
mother was disposed to allow him, and the applicant mother
none (except for their accidental encounter at Morija for a couple of

days or so in 1979) - leaving Mrs. Makoala senior in supreme command
of the situation. There was, I might add, one brief attempt,
which
lasted about a year, between applicant and respondent,of making a go
of the marriage. The respondent had rented accommodation
for the
applicant in Monja in 1977 where she and the children lived. She says
their relations were not out of the usual and he
sent her and the
children money and clothes. At the end of the year respondent came to
Morija and took the children away to his
own mother telling the
applicant that if she wanted them she herself had to go to Quthing,
i.e. to his mother's and live there,
i.e. she must submit. The
applicant was in the meantime, according to respondent and his
parents, roaming the sub-continent and
so they did not

8

know
where to send the children to if she wanted to see them, an
allegation which incidentally I find to be devoid of truth, made
only
during the trial, in an effort to show that Mrs. Makoala senior was a
reasonable lady. What happened was that having no support
after the
children were taken away she had to fend for herself. Apart from help
from own parents she now makes her own living as
a seller of food at
Maputsoe an important and expending industrial area in Lesotho. She
has reached the stage where she could support
and maintain both
children,

Mrs.
Makoala's senior episodes which she held against the applicant can
now be summarised :

1. The
   first visit by the applicant to her in laws in Quthing was sometime
   in 1970 or perhaps early in 1971. We know that the child
   Tsele was
   born. When the applicant made her visit Tsele was suckling his
   mother's breasts. Mrs. Makoala senior noticed that Mrs.
   Makoala
   junior was expecting another child. It was traditional in the old
   days, and indeed in many families until this very day,
   not to wean a
   child early and two or three years might go by before this is done.
   During the breast feeding period husband and
   wife are not supposed
   to have sexual intercourse. Mrs. Makoala senior, being traditionally
   minded, thought this was improper
   and asked the applicant if she was
   pregnant and the latter replied in the negative. That was the
   applicant's first sin. Mrs.
   Makoala senior, however, was sure that
   her intuition was right, and having been apprised of the birth or
   impending birth of Letuka,
   repaired to Maseru ostensibly to look
   after Mrs. Makoala junior during the period of her confinement and
   thereafter, but after
   hearing and seeing her in the box, she went
   there probably to prove that she was right and the applicant had
   lied. She testifies
   that that visit was one of extreme kindness to
   Mrs. Makoala junior. She added that apart from looking after her
   needs, Tsele
   was sleeping in her own blankets to allow Mrs. Makoala
   junior to rest and concentrate on the newly born baby Letuka.
   However
   the married couple had only one room and perhaps Mrs,
   Makoala's senior visit was not welcome especially because Mrs,
   Makoala's
   junior mother (Mrs. Mathabo Matsela - PW4) lived and had a
   home a

   
   

9

stone's throw away at Makoala and may be the applicant preferred her
own mother which was of course not possible in view of the

accommodation.

2. It
   was traditional according to Mrs. Makoala senior, after what she
   thought her sterling job at Maseru for the confinement, that
   Mrs.
   Makoala junior should travel to Quthing to pay her a visit which
   traditionally takes place two or three months after the
   birth. This
   Mrs, Makoala junior failed to do. This was sin number two.

   
   

3. Thereafter
   all pretences were shed away and communication ceased altogether
   except for a visit made by Mrs, Makoala junior to
   Outhing to offer
   Mrs. Makoala senior her condolences on the death of a daughter in
   1975. We do not know to what extent the applicant's
   and respondent's
   marriage had deteriorated by then, probably not quite on the rocks,
   but this visit was a flop. Mrs. Makoala
   senior testifies that Mrs.
   Makoala junior did not speak to her one word. She expected her to
   stay for 3 days, according to custom,
   but packed up and went after
   one day, I am not in the least surprised. This was sin number three.
   If no words were exchanged
   between them during that one day it was
   probably because Mrs. Makoala senior did not herself initiate any
   conversation. If Mrs.
   Makoala junior did not wish to make amends, or
   at least an attempt at a raproachment, she need not have gone to
   Outhing after
   the lapse of 4 years, and it is impossible to believe
   that she did not at least offer greetings on her arrival.

   
   

We thus
see in this case a clear instance of a weak husband torn between a
commonsense attitude to his former wife on the one hand,
and on the
other, his blind loyalty especially to his mother, whose influence
upon his family life, when she was around (and she
made it a point to
be frequently around) he was unable to shake off and in my view will
never be able to shake off. I will give
examples in a moment but it
is conceded by Mr. Sello that if custody was given to the respondent
father, although he might be able
to find accommodation and to employ
a domestic servant to look after the boys, they would in effect live
at Quthing with the grandparents.
These are the examples :

1. the
   respondent seems to have acted rationally and reasonably when he
   rented a home for his wife,

   
   

10

when she was still his wife, and supported her and the children in
Monja in 1977.

2. after
   the split, he agreed to divide the children, one to go to his
   mother, and one to his wife to keep them both happy I suppose,
   or so
   he thought but

   
   

3. he
   endorsed the arrangements for alternate holidays thus allowing
   access to his former wife and was not oblivious of her needs
   as a
   mother; and indeed gave the applicant a letter of authority to
   collect the children for the holidays, an indication surely,
   that he
   did have some respect for the agreement to which he had subscribed
   his signature, respect for the law which he undertook
   to obey and
   some respect for his former wife's ability to look after the
   children.

   
   

Mr. &
Mrs. Makoala senior testify that when the boys saw their mother at
Quthing they refused to go and ran away from her. The
applicant and
her mother testify that the boys were aloof and reluctant, not that
they rejected the applicant nor did they run
away. My assessment of
this evidence is that the boys were shy and to some extent confused
by the tug of war. They seem to have
been, if not terrified of Mrs.
Makoala senior, at least very much under her domination considering
the history of the relationship
which I have attempted in the
previous pages to outline.

The
evidence alleging that the two children did not "know or
recognise" their mother cannot be believed. Dr, Mohapeloa,
the
Government Mental Health specialist who was given the opportunity to
interview the children with their parents in my chambers
alone (i.e.
without the grandparents or the Court or attorneys) discounted this
theory.

The stand
taken by Mr. and Mrs. Makoala senior is perhaps best reflected in Mr.
Makoala's senior letter to the chief of 21st December
1981. The
implications are clear

1. That
   applicant's rights as a mother ceased to apply for after the divorce
   he "has no daughter-in-law" in the name of
   Ntsoaki
   Makoala.

   
   

11

2. In
   so far as the woman Ntsoaki Matsela (applicant's maiden family name)
   he is not going to allow his children to be "dragged"
   to a
   place they do not want to go to.

   
   

The old
traditions regard the children as belonging as of right, in the
fullest sense of the word, to the father and his parents
since
"children are begotten" from the cattle paid for bohali,
but to accept this as a universal criterion for determining
the best
interests of the children must be rejected. These no longer form part
of customary law and certainly not of the civil
law.

In the
second attempt at Thamae on 7th January 1982 two witnesses testified
that the boy Tsele was about to go with them. Mrs. Makoala
senior was
around. No doubt she told the respondent about the so called dragging
of the children at Quthing. She was lying or exaggerating,
but, as
usual the respondent believed his mother and it was in her presence
that his courage at defying his own commonsense and
the law occurred.
As far as Mrs, Makoala senior was concerned if the boy Tsele had to
go to his mother, so be it, but his shirt
must remain with her.

Sometime
late in January 1982, the boy Tsele had a nervous- breakdown as a
result of which he was admitted to Mohlomi Mental Health
clinic on
the 29th January 1982 and remained there until the 5th February, He
was attended to on 1st February by Dr. Mohapeloa
the Director of
Mental Health. The boy was brought by his father the respondent and
Mrs, Makoala senior after being referred to
him by Dr. Tlali of Queen
Elizabeth II. The doctor heard their version of the cause of the
boy's trauma. On the boy's discharge
Mrs. Makoala rang him up soon
after to say that the boy had a "relapse" when the
respondent was "presented with
a subpoena demanding that child
be handed over to the mother". The doctor did not see the
"subpoena" or "Court
Order" or know the
"details". This may have been a reference to the
application to commit the respondent for contempt
which was set down
for hearing on the 8th February 1982. On the same day the doctor
formally reported (Annexure B) that in his
opinion the boy's
condition was most probably caused by "an encounter with his
divorced mother" and was convinced that
the child's mental
disturbance is "attributable to the

12

efforts
that his divorced mother had made directly or indirectly to repossess
the child". Whilst it is clear that the child
Tsele was ill it
is equally clear that the stories that the doctor heard were all one
sided and he was not in a position to judge,
apart from the fact of
illness, if what he was told were exaggerations, or a pack of lies,
designed to satisfy the vanity of Mrs.
Makoala senior that Mrs.
Makoala junior was so rotten in her custody demands to the extent of
making her child sick. The doctor
attended Tsele as an outpatient
twice after his discharge between February and September but on both
those last two occasions Mrs.
Makoala senior alone was in attendance.
Unfortunately the recording machine had broken down before the doctor
was called to testify.
For the sake of completeness I shall quote the
notes I made

Examination
in Chief:

"I first saw the child on 1st February 1982. He was referred to
me by Dr.Tlali on 29. 1. 1982. I have my report (Annexure
B). I
discharged him on 5. 2. 1982.

I saw the child on 2 subsequent occasions. I prescribed some
treatment, I cannot remember the dates now, I saw him again today.

His condition fluctuated but there is an improvement.

I usually take the history of the illness. I had heard his father
Tsikilo and his grandmother on the first occasion and on other
two
subsequent occasions from his grandmother alone.

The state of health the child was consistent with the story I heard,
i.e. that his mother, who was divorced, was trying to regain
control
of the child.

It was only today that I had occasion to see the children with both
parents alone for the first time in the Judge's chambers.

Q: Were you able to form impressions?

A : Within the limitation(of time) Tsele's reaction to his mother is
one of fear and he reacts more positively to his father.

Q : What about his reaction to his grandmother?

A : She seems to play a domineering part over him; but he seems to
have a close relationship with her.The younger child(Letuka)
seemed
to me more relaxed than the elder child.

Q : What opinion would you form if the child Tsele was given to the
mother?

A : I think

13

A : I think it will have an adverse effect on his health.

Q : What do you mean by domineering?

A : I say the relationship is close, and she carries influence with
the child.

XX : When I composed the report I had only the father and the
grandmother's words but also I had my own professional observation.

Q : You were told that the divorced mother wanted to regain
possession?

A : I have been told but I have no direct knowledge. I have not come
to Court to give evidence in a case of this nature in Lesotho
before
though I am familiar with traumas of children of divorced parents
from other places where I had studied.

I agree in Lesotho the families, and not only the couple, play a part
in the upringing of children and the tendency is more disruptive
than
otherwise it might have been,

I agree that children are impressionable and delicate creatures.

Q : Would you say a child can be influenced by the custodian

A : Yes children follow their age group - i.e. peers and their
custodian.

Peers are other children, even within the family, but with younger
children the situation may be different. At age 12 and 11 the

influence of the younger child on the older child is not usual though
I can conceive of occasions where it is possible.

Q : Children do not like to be separated

A : Yes I think so, but there is no scientific evidence to support
this in the literature I have read.

Q : In general would you say brothers like to stay with each other.

A : Not necessarily, I cannot generalise. It is

difficult to make a conclusive statement. There is the question of
rivalry.

I agree I did not know the mother's story.

Q : Has not failure to see the mother put you at a disadvantage?

A : Yes there is such disadvantage.

Q : Did anything emerge from your interviews withthe father and his
mother to the applicant wife?

A : Yes I gathered that the grandmother hadconsiderable hostility
towards the applicant wife.

Q : Can you say if the domination and hostility by the grandmother to
the children's own mother could have been transferred to
the children

A : It is within the realms of the possible, yes.

Q : From the

14

Q : From the literature you read, and other information, would you
say children from broken homes are more susceptible to nervous

breakdowns?

A : Yes. I gave the child tranquilisers and removed him from the
atmosphere he was in for a while,

Q : Could children have forgotten their mother from 19799

A : This morning the child Tsele's attitude to his mother was
negative, I understand that marriage broke down in 1975.

Q : The other side they say children have not seen their mother since
1975 and only saw her in 1981, If that was the situation
would the
negative reaction surprise you?

A : It is all hypothetical, but it would not be an unexpected
reaction. The mother however showed me photos she had of the children

in 1977 though they were not date stamped.

Q : Our story is that the children were only taken away in December
1977 or early 1978, and spent a day or two pleasantly with
their
mother in 1979, Would you have expected the negative reaction?

A : If that was the case I would not have expected a negative
reaction.

Q : I like you to tell the Court, the applicantmother suggested that
the children were put under pressure. If true, would they
have been
influenced?

A : Yes she could reasonably suspect that.

Q : In Tlali v Tlali a child reacted negatively, but when the court
awarded custody to the mother all went well and there were
no
complaints since.

A : It depends on the sex of the child, and if she was a girl I will
not be at all surprised.I say Tsele, on balance of probabilities,

would be affected adversely.

Q : Would the child, mentally and emotionally, be happy in a place
where he is constantly influenced against his own mother?

A : It is difficult to answer.

I would say custody is better with either one or other of the
parents, rather than with the grandparents - it all depends on the

age of the children. There is a large gap in age between grandparents
and their grandchildren which may not be conducive to their
welfare.
When children are young there is attachment to the mother, but as
they grow older, they become independent and the closeness
that once
existed is bound to decrease gradually.

15

Re-Examination;

Q : Would you have been involved if the child was not referred to
you?

A :I don't know but when he was referred to me I examined him.

I think
the doctor was giving us an honest opinion of how he viewed the
problem - but it was clear to me that his opinion, which
was formerly
based upon the story of one side, has somewhat shifted after his last
interview with both children and their parents,
but it is the Court
that must decide finally on what are the best interests of the
children.

Mr.
Sello's main argument is that it is much too late in the day to award
custody of the children to the mother. He says if there
was some
trauma at one time, this will be repeated again, much to the
detriment of the children, so let them stay where they are.
The only
point in favour of the respondent's parents is that they are more
affluent' than either the applicant or respondent. The
children may
benefit materially but money is not the be all and the end all. In
fact it may have the reverse effect on the children's
welfare.
Tsele's alleged nightmares and constant illnesses are attributed to
the applicant's attempts to take him away, but this
is what Mrs.
Makoala senior says(and also Mr. Makoala senior) but there is no
proof of that at all. Mrs. Makoala's senior allegation
that Tsele has
forgotten how to write the alphabet was disproved in my own chambers

In my
opinion custody of both children should be awarded to the applicant.
Grandparents cannot be given preference over the mother
and the
father, and in this instance the father, as we have seen, if granted
custody, is going to send them back to Quthing. I
am sure, on balance
of probabilities ,that their ultimate benefit and welfare demand a
complete break with the existing atmosphere.
Mrs.Makoala senior, I am
afraid, cannot look after the children as a mother would. I am
satisfied she did attempt, and will always
attempt, to alienate them
from their mother. If Mr. Sello's contention is that she had already
succeeded and that a change will
do the children more harm than good,
I say this is pure speculation. The two children were

16

intervlewed
by me. They are of average intelligence but a brief conversation
revealed poor schooling. I must add that I did not
seek their
preferences. The responsibility for the decision is mine alone. I
think they will fare much better without Mrs. Makoala
senior around.

I make
the following orders :

1. Custody
   of both children Tsele and Letuka will be given to applicant with
   immediate effect.

   
   

2. The
   respondent will have access to the children at Maputsoe at the
   applicant's home once every two weeks on a Saturday or Sunday

   afternoon. He shall not be allowed to take the children away for the
   next 13 months,

   
   

3. The
   grandfather of the children (Mr. Bennett Makoala) may visit them at
   Maputsoe once every month on a Saturday or Sunday.

   
   

4. The
   grandmother of the children Mrs. Makoala shall not visit or have
   access to the children for 13 months.

   
   

5. A
   social worker (or other person nominated by , the applicant and
   respondent) shall submit ,a report to the Court once every three

   months about the progress the children are making at Maputsoe, with
   copies to attorneys of applicant and respondent. Expenses
   of the
   social worker(or that other nominated person) to be borne equally by
   applicant and respondent.

   
   

6. If,
   after the elapse of 13 months, and assuming the social worker's (or
   other person nominated by the applicant and respondent)
   reports are
   not adverse, the respondent satisfies the Court by affidavit or by
   other means, that he has acquired a home of his
   own in Maseru with
   adequate facilities to look after the children, they shall spend
   alternative school holidays with him commencing
   in the X-mas school
   holidays in December 1983.

   
   

7. Subject
   again to the social worker's (or the nominated person) report the
   prohibition imposed in paragraph 4 of this order will
   be
   reconsidered.

   
   

8. With
   regard to the application to show cause why respondent should not be
   committed for contempt I find the offence proved. He
   is sentenced to
   one month imprisonment, which will be suspended for 13 months on
   condition that he does not commit an act of
   contempt involving the
   children's custody and current orders as to access during the period
   of suspension.

   
   

17

The
respondent to pay the costs.

CHIEF
JUSTICE

9th
November, 1982

For
Applicant : Mr. Maqutu

For
Respondent: Mr. Sello