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Headnote Pending finalisation of winssen parties' divorce, they concluded a settlement agreement in terms of which the divvorce was to have interim custody of their minor daughter, Leloba. Notwithstanding the agreement, the respondent removed Leloba from the applicant's custody without his consent. The respondent resisted the application on the ground that she had removed Leloba from the applicant's custody because he displayed improper sexual conduct towards the. The respondent also denied the existence of the alleged settlement agreement. Held: 1 The settlement agreement, which included agreement on the interim custody of Leloba, had been proved.


Respondent ordered forthwith to return minor child to applicant. As will appear later in this ruling, no dispute of fact arises, the application is properly before me and can be determined easily on the affidavits. I will cause service of these papers upon him to afford him the opportunity to rebut, if he does not agree herewith.

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He then returned to Belgium having entrusted Leloba to his sister. In the womab action, both parties claim custody of the minor child of the marriage, Leloba Mokgaba Thema, a girl, born on 17 August hereinafter referred to as Leloba. If you happen to be reading this, i wonder when you've got seen me. He then made a report to the police.

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The very first matter to be brought to the attention of the parties is that their personal differences and their conduct towards each other and in the applicant's case, towards Winnet, womsn play no part in the determination of the custody issue. Winnet has not ed a confirmatory affidavit. The respondent was naturally very upset at this.

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Winnet, whose full names appear as Winnet Flidder Takundwa Chikwakwa, says in her affidavit that she was, until 15 Aprilin the employ of the applicant, as Leloba's nanny. There is no legal basis for altering that arrangement. Held: 1 The settlement agreement, which included agreement on the interim custody of Leloba, had been proved. She avers further that while the applicant was in Ghana no dates providedshe saw Leloba viewing pornographic material on the family computer.

To recapitulate my findings: 1.

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I have been constrained to provide the lengthy background to what is before me as it would be impossible to determine the issues without frequent reference to the respective averments. Paragraph 6 of that agreement deals with Leloba and I set it out in full, as a substantial portion of the debate before me turns on it: '6. The paramount consideration should be where the interests of a minor child would be best served. Qinsen was in fact in the employ of the respondent when the answering affidavit was prepared.

It is alleged that the applicant was in Ghana at the time.

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Where does all this leave the answering affidavit? What is more, she ed the settlement agreement and is bound by what appears therein above her ature. In or about December the respondent took up residence at the royal home of Kgosi Kgafela in Mochudi and she continued to exercise her rights of access. She also took issue with father and daughter sleeping in the same bed, calling this abnormal in itself. In their present form, the allegations are hearsay unless confirmed by her source, Winnet.

The respondent does not deny the existence of the arrangement but seeks to shift the blame to her erstwhile attorney suggesting but not saying, in as many words, that he misled her. In every case the court must see whether in truth wimsen is a real issue of fact which cannot be satisfactorily determined without the aid of oral evidence.

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She, however, denied ever having made the statements attributed to her. The circumstances of Leloba's removal from Belgium are not in dispute, nor are the applicant's reasons for doing so. In the result, the following orders are hereby made: 1.

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She describes the respondent as a heavy drinker and Leloba does not like seeing her in a state of drunkenness. The fivorce founding affidavit is a chronologicallargely uncontroverted, of the events leading to this application.

If the applicant succeeds, no need will exist to deal with the counter application. The respondent's allegations of the existence of such a dispute is not conclusive. If this were not done, the respondent might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant.

No confirmatory affidavit by Winnet is annexed to the respondent's answering affidavit winssn the applicant, as he was entitled to, sought verification from her. There is nothing before me to suggest that disruption of the status quo will benefit her in any way.

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The next day there was an exchange divirce text messages between the applicant and Kgosi Kgafela and the latter indicated that Leloba was at his home and would be returned to the applicant after the holiday. On 16 April the respondent called, wanting to collect Leloba, who was playing at home with other children. It is to be noted that the respondent does not seek custody pendente lite but womah final order for custody.

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Pending the determination of the divorce action between the parties custody of Leloba is awarded to the applicant. A large portion of the answering affidavit is then devoted to her dissatisfaction with the access arrangements and the continued acrimonious relationship between her and the applicant. Having wound up his affairs, he returned to Botswana in July Paragraphs 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 26, 27 and On 15 AprilLeloba's carer left her employment.

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She told me she was taking me there so that she could change what I had objected to in her affidavit. He could have done so only on the basis of what the respondent told him.

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She was told this by the child's carer Winnet and the report was to the effect that she, Winnet, had reason to believe that the applicant had been engaging in sexual intercourse with Leloba as father and daughter slept in the same room, Leloba's undergarment was often malodorous and showed traces of an abnormal discharge.

The supporting affidavit of Mmaabo Setshwaelo also contains inadmissible hearsay and the following paragraphs of that affidavit are hereby struck out. I find the respondent's allegations of the pornography incident false and unfounded on the papers before me. The first incidence of such behaviour relates to the respondent having 'caught' Leloba viewing pornography and putting the blame on the applicant.

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Fearing that she had left the dvorce home, he went through her personal effects to ascertain if she had removed any of these. They insisted that notwithstanding my protestations, they would not change the affidavit.

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