IN THE HIGH COURT OF SWAZILAND
CHARLES NDZIMANDZE
Applicant
And
ALLEN HAMSOKWE
Respondent
Civil Case No. 178/2007
Coram SB. MAPHALALA - J
For me Applicant MR. S. MDLADLA
For die Respondent IN ABSENTIA
JUDGMENT
7th February 2007
[1] Before court is an application brought under a Certificate of Urgency for an order that the Respondent return the minor child, Shaka Hamsokwe to the lawful custody of the Applicant. The Applicant also seeks for costs of :be application.
[2] The Respondent has filed a Notice of Intention to Oppose dated the 15* January 2007. The matter appeared before Annandale ACJ on the 26th January 2007 where by consent of the parties the matter was referred to the Registrar for allocation on the 8.30am roll, if possible on Tuesday 30th January 2007. Indeed on the said date the matter appeared before me at i>30am of the 30th January 2007 and there was no appearance on behalf of the Respondent after the matter was recalled at 10.00am. In the circumstances I allowed Counsel for the Applicant to address me on the Events of the application.
[3] The facts of the matter are that the said minor child was born out of wedlock by the Respondent and the Applicant's sister one Phepsile Ndzimandze who died in October 2002. She felt sick and stopped working and came home to stay with the Applicant together with the minor child. They became the Applicant's sole responsibility. Applicant has been naintaining the child and paying school fees for him. At some point Applicant instituted maintenance proceedings against the Respondent.
[-] On the 31st December 2006, the minor child disappeared from Applicant's home at Maphungwane, Siteki. The matter was reported :o the police and investigations revealed that the child had made a telephone call to ihe Respondent. The Respondent was called on the same number and he confirmed that the minor child was with him. On the 13th January 2007 one Mr. Shongwe came to his house. He said he had been sent by the
Respondent to discuss the matter of the minor child. However, they agreed that the Respondent should bring back the child to the Applicant before any discussions of custody can start.
[5] The Applicant further avers that since then, nothing has been communicated to him and the minor child has not been brought back to him. The Applicant contends that even though the Respondent is the natural parent of the minor child, he does not have custody of the minor child. The child was born out of wedlock and the mother of the child, who was his sister, had full and uncontested custody and just before her death Applicant took custody of the minor child. The Applicant further avers that until this court, as the Upper Guardian of all minor children has ruled and given custody to the Respondent he remain in custody of the minor child.
[6] In support of the above-cited position Mr. Mdladla cited the textbook by Boberg, Tlie Law of Persons and the Family at page 459.
[7] I have considered the facts of the matter and the legal authority of Boberg (supra) and have come to the considered conclusion that the Applicant would be entitled to an interim order in terms of the Notice of Motion.
SB. MAPHALALA
JUDGE