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Mangope v Mangope (nee Moeti) (Civil Appeal No. 15 of 1996) [1996] BWCA 50 (19 July 1996)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE

Court of Appeal Civil Appeal No. 15 of 1996
High Court Matrimonial Case No. 52 of 1995

Related to Miscellaneous Application No, (F) M 7 of 1995

In the matter between:

TITEO MANGOPIE Appellant

and

MALEBOGO MANGOPE(nee MOETI) Respondent

Appellant in person

R espondent in person

JUDGMENT
Delivered on the 19th Day of July, 1996

CORAM: AMISSAH, J.P.

SCH REINER, J.A. HOEXTER, J.A.

HOEXTER. LA.:

The parties to this appeal were married to one another in community of property at Serowe on 16 November, 1990. There is a daughter of this marriage ("the child") now aged 5 years. The child is in the custody of her mother who is the respondent. The respondent works. During the week the child is cared for by the respondent's mother. The child spends week-ends with the respondent.

At the end of March 1995 and in the High Court at Francistown the respondent instituted an action for divorce against the appellant. In her Particulars of Claim the respondent alleged that the parties had not lived together for a period of four years immediately preceding the summons, and that the marriage had irretrievably broken down. She claimed a rule nisi for divorce, custody of the child and costs of suit.

On 14 June 1995 the appellant filed a Consent in the action. In the Consent the appellant conceded that the marriage had irretrievably broken down and he consented to the granting of a decree of divorce -

"Save for custody of the minor child B. which shall be left to be determined by the Court".

The matter came before COTRAN J on 4 September 1995.

There was no appearance by the appellant and the respondent testified in support of her claims. At the close of the case the learned trial Judge granted the following Orders:

" 1. Rule Nisi for divorce is granted as prayed.

2. Defendant [the appellant] is to pay P200 per month for the child with effect from October 1995.

3. Costs to the plaintiff [the respondent]."

The decree was made absolute on 27 October, 1995.

The appellant was dissatisfied with the second and third orders which COTRAN J granted against him. By notice of motion dated 29 September 1995 he informed the respondent that on 3 November, 1995 he would seek an order setting aside the second and third orders granted against him.

The respondent resisted the application, and on 3 November, 1995 both parties appeared in person before COTRAN J. The appellant told COTRAN ] that he was not contesting the divorce but that he objected to paying maintenance in the monthly sum of P200. He explained that he was a warrant officer in the Botswana Defence Force and that he had just been posted to Gaborone. According to the appellant his salary slip, before deductions and tax, amounted to P1400.

The respondent then testified under oath. She said she was an accounts clerk in the Botswana Power Corporation and that she earned PI700 per month. She explained what her financial commitments were and she said that she needed more than P200 as monthly maintenance for the child.

COTRAN J told the appellant that he wished to see his pay slip for September 1995 and to that end the case was postponed to 17 November 1995. On that date the appellant produced his pay slip. He was questioned in regard thereto and the pay slip was also exhibited to the respondent. Having been sworn in as a witness the respondent submitted that the appellant was able to pay monthly maintenance for the child in an amount larger than P200. To this the appellant responded by saying that he could not afford to pay anything at all by way of maintenance for the child. The Court a quo then proceeded to make the following orders:

"1. Respondent husband [the appellant] is to pay the sum of P200 for the month of October, 1995 as I have decided previously.

2. With effect from 1st November 1995 the Respondent husband [the appellant] to pay P150 per month until the child reaches the age of 21 years or becomes self-supporting or marries if earlier".

In granting the respondent relief on 4 September 1995

COTRAN J omitted to make a specific order awarding custody of the child to the respondent. From the fact that the appellant was ordered to pay maintenance for the child, however, it is plain that the Court a quo intended that the respondent should be given custody of the child. It is clear, moreover, from the appellant's founding affidavit to his notice of motion, that the appellant fully appreciated that the effect of COTRAN's order on 4 September 1995 was to award custody of the child to the respondent. Despite this fact the appellant did not either at the hearing on 3 November or at the hearing on 17 November 1995 contend that custody of the child should be awarded to him.

The notice of appeal filed by the appellant states that his appeal to this court is based -

"Upon the grounds that appear in the grounds of Appeal and will at the hearing of the appeal seek the relief set out in the grounds of Appeal."

In fact no grounds were subjoined to the Notice of Appeal.

A t the hearing of the appeal both parties appeared in person. The appellant's complaints were:

" 1. that the Court a quo had erred in not awarding custody of the child to the appellant;

2. that in awarding custody of the child to the respondent the court a quo had erred in failing to define the appellant's right of access to the child;

3. That the court a quo had erred in ordering the appellant to pay maintenance for the child in any amount whatever.

In the course of her argument the respondent urged this court to increase the amount of maintenance ordered by COTRAN J on 17 November 1995.

The respondent did not, however, note a cross-appeal against such order and this Court is therefore confined to a consideration only of the merits of the appellant's appeal. The appellant's submission that the Court a quo went wrong in not awarding custody of the child to him must, I think, be rejected out of hand. When questioned by this Court the appellant was unable to argue that the respondent was in any respect unfit to discharge the obligations of a custodian parent, and there is no evidence to suggest that she is anything other than a good and caring mother to the child or that during the week the child is not adequately looked after by her maternal grandmother. When it is further borne in mind that the child is a girl of very tender years then it is very difficult to avoid the conclusion that it is in the interests of the child to leave her in the custody of the respondent. Indeed, the appellant did not seriously contend to the contrary. His claim to obtain custody seems to have as its only basis the fact that since the parties have lived apart the appellant has not had anything to do with the child. It is unnecessary to say anything more in regard to the issue of custody save that in the interests of clarity the order made by COTRAN J on 17 November 1995 must be expanded to include an express award of custody to the respondent; and at the same time (since relations between the parties are obviously strained) to define, for the present, the appellant's right of access to the child. At this stage the child is very young and the appellant is a stranger to her. As the child grows older it is desirable that she should see progressively more of her father. It is to be hoped that the parties will be wise enough to achieve agreement in this respect and thereby to avoid further litigation.

I turn to the appeal against the maintenance order. The appellant's main argument is that he should not be liable to pay any maintenance at all for his child. That argument has no merit whatever. It serves merely to show that the appellant has a very poor appreciation of his responsibilities as a father - which is further borne out by the admitted fact that the appellant is already P700 in arrear with maintenance ordered by COTRAN ] on 17 November 1995. The appellant's alternative argument is that he should be ordered to pay no more than P100 monthly. That argument must likewise be rejected. Having regard to the salary earned by the appellant and the circumstances of both parties there is no good reason to disturb the very modest maintenance fixed by COTRAN ]. The appellant had better begin to understand here and now that as the child gets older he will be required to increase very substantially his contribution towards her maintenance.

The following orders are made:

"(I) The order made by COTRAN J on 17 November 1995 is amended by the addition thereto of a further paragraph, to be numbered "3", in the following terms -

"3. Custody of the child is awarded to the mother subject to the father's right of reasonable access. For the present the father's right of access is limited to having the child with him twice every month over alternate week-ends from 4 pm on Friday to 4 pm on Saturday."

2. Save as aforesaid the appeal is dismissed.

3. No order of costs is made in regard to this appeal.
   
   DELIVERED AT COURT OF APPEAL, LOBATSE, this 19^th Day of July 1996.
   
   
   
   
   

I concur, G. G. HOEXTER (JUDGE OF APPEAL)

I concur, A.N.E. AMISSAH (JUDGE PRESIDENT)

I concur, W. H. R. SCHREINER (JUDGE OF APPEAL)