CIV/APN/293/87

IN THE
HIGH COURT OF LESOTHO

In the
Application of

LIKHABISO
MOSAO ........ Applicant

and

AUGUSTINUS
MOSAO .......... Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai an the 4th day of December, 1987

The
applicant seeks an order of this court directing, pendent lite, the
Respondent to desist from assaulting or threatening her
with
violence, to maintain Thabiso Mosao in the sum of M200 per month
pending the finalization of a divorce action she has instituted

against him and to pay costs of this application. The Respondent
intimated his intention to oppose this application. Affidavits
were
duly filed by the parties.

In her
affidavits applicant deposed that before she got married to
Respondent by civil rites in August, 1983, she had given birth
to a
baby boy, Thabiso Mosao. The child was born in 1981 and had been
fathered by the Respondent. He was legitimated by their subsequent

civil marriage.

On 26th
August, 1987, the Respondent took her out to a place called Qoaling
where he assaulted and threatened to throw her out of
the car unless
she chose to leave the matrimonial home, on her own. On 27th August,
1987, applicant accordingly left the matrimonial
home and went to
live at a rented house, the locality of which she did not wish to
disclose to the court for fear that the Respondent
might follow and
assault her.

2

Well, if
she wished this court to grant her the relief she is seeking in
proceedings of this nature, it is important that the applicant
takes
the court into her confidence and discloses all the material facts.
Be that as it may, the applicant further averred that
when she left
the matrimonial home, the minor child, Thabiso, who was about 6 years
old remained in the custody of the Respondent.
Because of its tender
age, the child was in need of her care. The Respondent who was
running a lucrative business was able to maintain
the child at the
rate of M200 per month. Wherefore, applicant prayed for the relief as
aforesaid.

Respondent
conceded that he had fathered the minor child, Thabiso Mosao, before
he and the applicant entered into a civil marriage
in August, 1983.
Prior to the civil marriage he and the applinant had, however, been
married in accordance with Sesotho Law and
Custom since 1979. In his
contention, the child, Thabiso Mosao was legitimate at birth. The
Respondent denied, therefore, applicant's
averment that the child
Thabiso Mosao was legitima­ted by the subsequent civil marriage.

It is to
be observed that although the Respondent claimed to have been married
to applicant according to Sesotho Law and Custom
since 1979 that was
denied by the apolicant who averred that she only got married to him
after the Respondent had divorced his
former wife. In support of hei
denial, applicant attached annexure "AA" an order of this
court dated 31st August, 1962
by which Respondent's civil marriage to
his previous wife was resolved If prior to 31st August, 1982 he was
civilly married to
another woman the Respondent could not, in my
view, have been lawfully married to the applicant for the simple
reason that one
of the consequences of a civil marriage is that there
will be one husband and one wife to the exclusion of all others. I
would,
therefore, reject as false Respondent's version that since
1979 he was married to the applicant customarily and accept as the
truth
the applicant's story that she was not.

3

The
Respondent denied the applicant's story that on 27th August, 1987 she
had to abandon the matrimonial home because he had, on
26th August,
1987 taken her out to Qoaling where he assaulted and threatened to
throw her out of the car unless she chose to leave
the matrimonial
home on her own. According to him, the truth of the matter tuns that
on 26th August, 1987 a dispute arose between
him and the applicant
over his money amounting to M7,000 which she had deposited into her
secret bank account without his approval
or knowledge. It was as a
result of that dispute that, on 27th August,1987 and whilst he was at
work, the applicant took her personal
belongings, left the
matrimonial home and rented a house in Maseru East where she was
current staying.

As proof
of his averment that applicant had stealthily deposited the amount of
M7,000, Respondent attached annexure "A"
an order of this
court declaring the secret deposit of the M7,000 into her bank
account null and void and directing the bank to
release the money to
him. It is significant to note that although she avers that
Respondent has assaulted her, applicant does not
seem to have
reported to the police nor approached a doctor for medical
treatment,. In my view, if it were true that the Respondent
had
seriously assaulted her as she wants this court to believe, the
applicant would have either reported to the police or went
to a
medical doctor for treatment. She has not. That being so, I take the
view that the balance of pro­babilities favours the
Respondent's
version that he neither assaulted nor in any way threatened to harm
the applicant who left the matrimonial home merely
because there was
a dispute over her secret deposit of the amount of M7,000. I am,
prepared, therefore, to reject applicant's story
as false and accept
as the truth the Respondent's version on this point.

4

On the
question of custody of the minor child, Thabiso, it is to be
remembered that this court is the upper guardian of all children.
I
concede that because of the age of the child, Thabiso, the applicant
is better equipped to afford him a motherly tender care
which he
needs. However, the court should not loose sight of the facts that
the child is already of school going age, the Respondent
is
admittedly able to maintain him adequately and he is transporting him
to and from school. It may also be mentioned that the
applicant is a
working woman who naturally cannot claim to have much time to look
after the child.

Regard
being had to all these factors, it seems to me that the interests of
the child, Thabiso, will best be served by leaving him
in the care of
the Respondent at the matrimonial home rather than uproot him to the
applicant's rented house.

It has
been argued that as he was fathered by the Respondent at the time he
was still lawfully married to another woman and therefore,
incapable
of marrying the. applicant, the child, Thabiso was at birth, not
illegi­timate but adulterine. He could not, therefore,
be
legi­timated by the subsequent marriage between the applicant and
the Respondents.

It seems
to me that Thabiso is, as of now, reasonably happily living with the
Respondent who, rightly or wrongly, regards him as
his legitimate
son. I consider it to be in the best interest of this child to leave
the question of whether or not in the circumstances
of this case, he
was legitimated by the subsequent marriage of his parents to the
final stage of the divorce proceedings,

5

That
being so, the question of an order directing the Respondent to
maintain the child, Thabiso, falls away at least for the time
being.
Both parties have told the court, and rightly so in my opinion, that
at this stage neither of them insists on the costs
of this
application.

In the
premises, I would dismiss this application with no order as to casts.

B. K.
MOLAI,

JUDGE.

4th
December, 1987.

For
Applicant Mr. Hlaoli

ForRespondent
Mr. Nthethe.