IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIV.
CASE No. 2308/97
IN
THE MATTER BETWEEN:
SALLY
DLAMEVI (BORN MOTSA) APPLICANT
AND
EDDIE
DLAMINI RESPONDENT
CORAM
: DUNN
J.
FOR
THE APPLICANT : MR.
FLYNN.
FOR
THE RESPONDENT : MR.
EARNSHAW.
JUDGMENT
3RD
OCTOBER 1997.
This
is an opposed application for interim custody of two minor children
in terms of Rule 43 of the High Court Rules.
The
parties were married to each other by civil rites on the 6th
September 1986. Two minor children, both boys, were born of the
marriage . The eldest child, Lungelo, is 11 years of age . The
youngest, Brian, is 8 years of age .
The
applicant sets out in her papers that her marriage to the respondent
has not been a happy since about 1992 and that she was forced to
leave the matrimonial home at Mhlume, following a severe assault on
her by the respondent on the 18th June 1997. The minor children were
left with the respondent. The applicant
2
has
since issued summons against the respondent seeking an order for
restoration of conjugal rights failing which, a final order of
divorce; custody of the two minor children; maintenance for them at
the rate of E500.00 per child per month and the payment of school
fees at the rate of El 250.00 per child per term.
The
papers before me revealed several areas of dispute between the
parties regarding the present circumstances of the two minor children
.These included the question of the preparation of their meals,
assistance with their homework and their performance at school since
the separation of the parties. I found it necessary to hear the
parties on the question of the present position of the children and
as to what arrangements the applicant had in store for the interim
period , should she succeed in the application. These are , of
course, matters which will best be -canvassed at the main trial
should it get to the stage of a final order.
The
evidence given by the parties did little to resolve the issues in
dispute, a clear indicator in my view of the enormity of the exercise
which will have to be undertaken at the trial (should there be no
agreement between the parties) on the question of custody. What did
arise from the evidence and which became of immmediate concern to me
is the fact that the minor children are in the final term of their
present grades at Mananga Primary School .The school year ends at the
beginning of December. The Headmaster of the school, whose evidence I
also called for, gave an overall picture of satisfactory performance
by the two children at the school. The Headmaster was quite open and
frank in his evidence regarding the apparent confusion which the
younger boy appeared to be going through from the time of the
separation of the parties. The Headmaster is himself a parent and he
and his staff are aware of the position of the parties and are doing
all they can to ensure the continued progress of the two boys in
their respective grades.
It
is the stated intention of the applicant, if successful in this
application, to immediately transfer the children to a newly
established private primary school in Manzini. The applicant lives in
rented accommodation at Ngwane Park and has put in place arrangements
for the movement of the children to and from school and for their
care, whilst the applicant is at work, by her sister. The applicant's
main interest in the transfer of the children in the current term is
to enable the children to settle in and to establish relationships
with their peers at the school, in readiness for the new year. The
Headmistress of the school gave evidence about the school and how it
compares to other private schools in the country. She could not,
however, guarantee that the two children would make a smooth transfer
to her school at this time of the year.
In
cases of this nature the court must consider the best interests of
the minor children See Hahlo,THE SOUTH AFRICAN LAW OF HUSBAND AND
WIFE
5th
Edition p 433 and the authorities there cited. It is generally
accepted that children of tender years should be with their mother.
It is also generally accepted that as far as possible, children of
tender years should not be separated from
3
As
I have pointed out earlier, the question of the custody of the
children will if necessary, be fully canvassed at the trial. What I
am here concerned with is whether it would at this stage be in the
interests of the children to award custody (with the attendant
wrenching and dislocation of the children from their present school)
to the applicant. It is not simply a question of determining which is
the best school for the children to attend right now. The children
appear to be coping relatively well with the situation. The reaction
of the younger child is only to be expected and is by no means
alarming. The applicant's concerns about the dietary requirements of
the children can in the interim, be taken care of by the applicant
maintaining close contact with the maid who is employed by the
respondent in the same manner that she handled the situation before
her departure from the matrimonial home. The position as testified to
by the parties, was that the applicant used to commmute between
Mhlume and her place of employment at Matsapha, on a daily basis .The
applicant would leave home before the children left for school and
return after 7.00 p.m. The supervision of the children's homework has
and continues, by and large, to be the responsibility of the
respondent. The applicant has in no way been prevented from visiting
the children or from having them visiting her and can for her part,
in the interim, give some support and comfort to the children.
There
is much merit and reason in the contention of the respondent that the
status quo should be maintained at least until the end of the current
school year. We have fairly firm evidence of the progress and
stability of the children. It would be wrong, in my view, to gamble
and speculate that a relocation of the children, at this point in
time would progress smoothly and see the children in their next grade
next year.
I
order as follows –
That
the application for the interim custody of the minor children is
dismissed
That
the minor children continue attendance at Mananga Primary School,
pending the order of the court in the main action between the
parties or the re - assessment of the position of the minor children
at the end of the current school year upon application by either
party, whichever event is the earlier.
That
costs be costs in the cause.
B.DUNN.
JUDGE.
