Case note

A judge in Lesotho digs into South African archives to

take children’s rights back to the stone age: Masupha
Lesala v Hlapase Lineo Morojele

Malebakeng Forere*

Abstract
For a long time, children born of unmarried parents have not been accorded
the same rights and benefits as children born of married parents. Today, the
international community has unanimously condemned the discrimination
against children born of unmarried parents (previously referred to as
‘illegitimate children’) through the adoption of the Convention on the Rights
of the Child. To that end, Lesotho has joined those who addressed
discrimination against children born to unmarried parents. However, the
case of Lesala v Morojele decided by the High Court of Lesotho leaves
much to be desired and has prompted this paper. In this case, the judge,
relying on very old South African jurisprudence, ruled that an unmarried
father has no rights to his child born out of wedlock. He ruled that it is not
in the best interests of the child to keep contact with his father who is not
living with the child’s mother. This note seeks to analyse this decision
critically by exploring the unmarried father’s right of access to his child
born out of wedlock, and the court’s subsequent failure to grant an order of
maintenance.

INTRODUCTION
In March 2011, the High Court of Lesotho was called upon to decide
whether an unmarried father has a right of access to, and the duty to pay
maintenance for, his child born out of wedlock. This is a unique case for
Lesotho, and the first to be decided by the Lesotho High Court where it is
usually mothers who sue for maintenance. In addition, there is a general
tendency in Lesotho for unmarried fathers to shun contact with their children.
On the other hand, Lesotho being a patriarchal society, it is considered
important for a male child to relate to his father’s family, which is impossible

*
BA Law, LLB (Lesotho); LLM (Essex). Lecturer: Faculty of Law, University of
KwaZulu-Natal, Durban.
116 XLV CILSA 2012

without a relationship with the father.

The case of Lesala v Morojele came before Nomncongo J in the High Court
of Lesotho. It involved the minor male child, K, born after a relationship
between Mr Lesala and Ms Morojele.1 On K’s birth Lesala, the applicant,
rented a house for Morojele, the respondent, and K. Although he did not live
with them in the house,2 he did visit the child and sleep over from time to
time.3 K also visited Lesala at his home.4 In addition, Lesala paid a monthly
amount of R3 400 towards the Morojele and K’s upkeep, as well as a salary
for a child-minder.5

Morojele then formed a serious relationship with a French national and

immediately denied Lesala access to the child and refused to accept
maintenance, alleging that Lesala used maintenance to gain access to K and
disturbed her private life.6 Lesala therefore approached the court claiming
access to K with a view to maintaining the relationship that he, as biological
father had formed with his child. In addition, he asked the court to grant an
order allowing him to pay maintenance towards the child’s upbringing,
school and medical fees, clothing and the child-minder’s salary.7

The court held that the father of an illegitimate child has no right of access
to his child, but that he may have such right, like any third party, if there are
strong and compelling reasons for granting access.8 Justice Nomncongo held
further that it is not in the best interests of the child to keep contact with both
parents who do not live together as that would leave the child confused.9 On
the issue of maintenance, Nomncongo J confirmed that Lesala had a duty to
maintain K, irrespective of whether or not he had access to the child.10

In arriving at this decision, the court had to decide two issues, namely: the
right of access and the issue of maintenance. With regard to the unmarried
father’s right of access to the child, the court distinguished two distinct
issues. The first was whether or not an unmarried father has a right of access

1
CIV/APN/95/2011.
2
Id at 4.
3
Ibid.
4
Ibid.
5
Ibid.
6
Ibid.
7
Id at 1 – 3.
8
Id at 5.
9
Id at 11.
10
Id at 6.
 Lesotho children’s rights 117

to his biological child born out of wedlock. The second was whether or not
it is in the best interests of the child to maintain contact with his biological
father who does not live with the mother of the child.

On the basis of the above, this note critically discusses the court’s decision
in determining the unmarried father’s right of access to his child born out of
wedlock, the court’s failure to grant an order of maintenance, and the judge’s
understanding of maintenance of a child born out of wedlock.

LEGAL POSITION OF A CHILD BORN OUT OF WEDLOCK IN

LESOTHO
Lesotho has a Constitution (1993 as amended), which contains the Bill of
Rights in its Chapter Two.11 Sections 18, 19 and 23 provide for freedom from
discrimination on the grounds of, among other things
• social origin;
• birth or other status;
• the right to equality before the law and the equal protection of the law; and
• the protection of young children and young persons.

Lesotho also ratified the Convention on the Rights of the Child (CRC) on 10
March 1992,12 the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW),13 and the African Charter on the
Rights and Welfare of the Child (African Children’s Charter) on 27
September 1999.14

Consequent to these ratifications, especially the CRC and the African

Children’s Charter, parliament passed the Children’s Welfare and Protection
Act with a view to, amongst others, domesticating the CRC and the African
Children’s Charter.15 The Act was officially published in the Lesotho

11
The Constitution of Lesotho 1993 as amended.
12
CRC, Status of Ratification, available at:
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg no=IV-
11&chapter=4&lang=en (last accessed on 10 August 2011).
13
Status of Ratification, available at:
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg no=IV-
8&chapter=4&lang=en (last accessed on 10 August 2011).
14
Also referred to as the ‘African Children’s Charter’. List of Countries which have
signed, ratified/acceded to the African Charter on the Rights and Welfare of the
Child, available at:http://www.africa-
union.org/Official documents/Treaties %20Conventions %20Protocols/List/African
%20Charter%20on%20the%20Rights%20and%20Welfare%20of%20the%20Child.pd
f (last accessed on 10 August 2011).
15
Act 11 2011 s 2(1).
118 XLV CILSA 2012

Government Gazette on 31 March 2011. The case was filed with the High
Court on the 18 February 2011, and the application was heard on 11 of April
2011, that is, eleven days after the Act came into operation.

Before 31 March 2011, children’s issues were governed by the Children’s

Protection Act 6 of 1980, and the Adoption of Children Proclamation 1 of
1952. Both these laws were repealed by the Children’s Act with effect from
31 March 2011. Both laws were outdated and had nothing to do with
children’s rights and were not even referred to by both counsel or the Judge.
Nonetheless, at the time that the case was heard, the applicable law was the
Children’s Welfare and Protection Act 11 of 2011.

In summary, the applicable laws in Lesotho at the time of the hearing of the
application were the Constitution of Lesotho, the Children’s Welfare and
Protection Act 11, the CRC, the African Children’s Charter, and CEDAW.
With regard to the CRC, the African Children’s Charter and CEDAW, it
should be noted that Lesotho is regarded as a dualist state. The dualist-monist
debate, however, remains unsettled.

[T]he entire monist-dualist controversy is unreal, artificial and strictly

beside the point, because it assumes something that has to exist for there to
be any controversy at all – and which in fact does not exist.16

Rather, the state has the duty to carry out, in good faith, its obligations
arising from the treaties which it has voluntarily ratified.17 In addition, a state
may not invoke its national laws as an excuse for failure to perform any
treaty obligations in accordance with article 27 of the 1969 Vienna
Convention on the Law of Treaties (VCLT). Significantly, with respect to the
CRC, it has been ratified by all the United Nations (UN) member states,
except the United States of America and Somalia, meaning it has attracted
general acceptance by UN member states, thus becoming a law of general
application in line with article 38(1) of the 1945 Statute of the International
Court of Justice. The effect of the status of general application is that a
country need not domesticate such law for it to be enforceable before
national courts. See article 38 of the 1969 VCLT. It follows therefore that

16
Harris Cases and materials on international law (2004) 66–68. Monism refers to the idea
that international law forms part of national law to while dualism refers to the idea that
for international treaties to be applicable at national level, they have to be domesticated
– that is, enacted into national legislation, see Harris at 66.
17
Vienna Convention on the Law of Treaties, 8 ILM 679 (1969), art 26 & 27; US v GB
(Alabama Claims Arbitration) 1872 (1) International Arbitration 495 at 656.
 Lesotho children’s rights 119

irrespective of whether Lesotho has domesticated the CRC or not, the

Lesotho courts are well within their material jurisdiction to apply and enforce
the provisions of the CRC.18 In any case, certain provisions of the UN and
AU treaties, such as those relating to non-discrimination, cannot be
suspended until the state concerned has domesticated the treaty in question,
because they are not reliant on administrative and other resources for their
implementation.19

Although Lesotho is an independent sovereign state, meaning decisions of

other foreign courts are not binding, the Lesotho courts rely heavily on South
African jurisprudence as is evidenced by the fact that the Lesotho High Court
library contains only South African law reports, legislation and literature. It
is understandable that Lesotho courts would consider South African
precedents, given that both countries are common-law countries. As
illustration of the dependence on South African jurisprudence, one hardly
finds any case where a judge in Lesotho has not relied on South African
materials,20 as evidenced in the case under discussion by the judge’s reliance
on the 1977 publication of Boberg’s Law of Persons; the 1987 decision in
Douglas v Meyers which predates the CRC and any other contemporary law
on children’s rights; and the 1993 decisions in S v S and B v S (which also
have been overtaken by events.21

DISCUSSION OF THE CASE

Right of access
The first issue to be considered is the unmarried father’s right of access to his
child born out of wedlock. As indicated in the introduction, the court looked
at two sub-issues to determine whether the unmarried father has a right to
access to his child born out of the wedlock.

Does an unmarried biological father have a right of access to his child born
out of wedlock?
Both the CRC and the African Children’s Charter provide for non-
discrimination on the basis of sex, birth, marital and other status. These

18
Ibid.
19
For instance, art 2 of CRC binds member states to take all measures to fulfill the rights
of the child enshrined in the Convention. Therefore, for some provisions, there are no
positive measures in terms of resources that are needed, such as non-discrimination.
20
Although it is claimed that South African decisions are merely persuasive and not
binding.
21
Boberg The law of persons and family (1977); Douglas v Meyers 1987 1 SA 910 (A); S
v S 1993 2 SA 200 (W); B v S 1995 3 SA 571; respectively.
120 XLV CILSA 2012

rights are also enshrined in the Constitution of Lesotho.22 The common law
position as enunciated in S v S, B v S, Douglas v Meyers,23 and Boberg’s Law
of Persons (1977), was that an unmarried father has no parental rights or
responsibilities – save for the duty to pay maintenance – in respect of his
biological child born out of wedlock. However,

the maternal preference of common law in the context of parental power

over the extra-marital child has now to be weighed against the Bill of the
Rights in the [Lesotho] Constitution, as also against [Lesotho’s] new
obligations under international conventions.24

In principle, to deny an unmarried father parental rights and responsibilities

amounts to differentiation between the child’s parents, which in turn is
discriminatory against the child on the grounds of social origin and birth. It
also violates the child’s right to parental care in contravention of both the
Constitution of Lesotho and Lesotho’s international obligations.

As far as parents are concerned, this differentiation amounts to inequality

before the law as well as unfair discrimination, contravening the equality
clause enshrined in the Constitution of Lesotho.25 The fact that Lesala was
denied parental rights and responsibilities in respect of K, while these are
granted to the respondent, is discriminatory on the ground of sex, as well as
in violation of the equality clause, and hence unconstitutional. Equally, to
deny K an opportunity to interact with his father by virtue of his parents’
marital status is discriminatory and unconstitutional. On the basis of the
constitutional and other international obligations that Lesotho has undertaken
to adhere to, the author submits that the judge erred in denying the applicant
a right of access to his biological child, K, born out of wedlock. In fact,
based on the arguments advanced above, the applicant could as well have
requested other parental rights, such as shared custody and guardianship,
instead of narrowing his claim to the right of access to and maintenance of
the child. In any event, section 20 of the Children’s Protection and Welfare
Act dealing with guardian/parental rights and responsibilities clearly
indicates that parents, irrespective of whether they are married or not, shall

22
Convention on the Rights of the Child, 28 ILM 1456 (1990), art 2(1); African Charter on
the Rights and Welfare of the Child, OAU Doc.CAB/LEG/24.9/49 (1990), art 3;
Constitution on Lesotho n 2 above, s 18. It is also important to note that the Constitution
of Lesotho is the supreme law of the land as the South African Constitution.
23
1993 2 SA 200 (W); 1995 3 SA 571(A); 1987 1 SA 910 (A) respectively.
24
Van Heerden et al (ed) Boberg’s law of persons and family (2ed 1999) 331.
25
The Constitution of Lesotho n 11 above, s 19; Heaton The South African law of persons
(3ed 2008) 69.
 Lesotho children’s rights 121

not deprive the child of his welfare. Thus, in alienating the applicant from
K’s life, K is being deprived of his welfare contrary to the Children’s
Protection and Welfare Act.

Further, the CRC provides for the child’s right to know his or her parents and
the right of the child to maintain family relations.26 Also, both the CRC and
the African Children’s Charter provide for the child who is separated from
one or both parents, to maintain personal relations and direct contact with
both parents on a regular basis, except if this is contrary to the best interests
of the child.27 This brings us to the concept of ‘the best interests of the child’
with a view to determining whether or not it is in the best interests of K not
to maintain contact with the applicant as the judge ruled.

Is it in the best interests of the child for him to maintain contact with his
biological father who does not live together with the mother of the child?
This question is open to two interpretations. It is not clear what the judge
meant by ‘parents who do not live together’. A literal interpretation of this
phrase is that it refers to parents who do not live under the same roof. This
could lead to the absurd situation where a child born of married parents who
live in different places because of work commitments, cannot have contact
with the parent with whom he does not reside. The second, and more feasible
interpretation, is that the judge was referring to parents who are not married
to one another. Whatever interpretation is adopted, this ruling conflicts with
the CRC, CEDAW and the African Children’s Charter, all of which provide
for the right of the child to maintain contact with both parents, unless it is not
in his best interests to do so.

The judge did no more than mention ‘the best interest of child’. It is therefore
unclear what he understands the doctrine to mean. However, it appears from
the judgment that the best interests of the child doctrine, according to Justice
Nomncongo, means care and guilt. This is based on the judge’s ruling that
he could not grant the father right of access – despite his wish to strengthen
ties with his child and contribute to its upbringing – unless it could be shown
that the mother did not care for the child properly or was guilty of any
misconduct. Of course, this is a highly misconceived understanding of this
doctrine that has been clearly elaborated by scholars and judges the world
over. For example, in South Africa, some of the factors that need to be taken
into account in determining the best interests of the child, include, among

26
CRC n 22 above, art 7.
27
Id art 9(3); African Children’s Charter n 22 above, art 19(2).
122 XLV CILSA 2012

others, the nature of the relationship between the child and the parents; the
attitude of the parents towards the child; exercise of parental rights and
responsibilities in respect of the child; and the gender of the child.28 It is
important to mention that not only is the best interests of the child principle
a statutory provision in South Africa, it has been entrenched in section 28 of
the 1996 South African Constitution. As a result, it is a very important
principle to which the courts must give effect.

As in South Africa, Australian law has among other demands in respect of

the best interests of the child, requirements similar to those of South Africa.29
In particular, section 60(CA) and 60(CC) of the Australian Family Law Act
provide that in determining the best interests of the child, the court must
consider, among others, the sex of the child; the attitude of each parent to the
child and the responsibilities of parenthood; the willingness and ability of
each parent to facilitate and encourage a close and continuing relationship
between the child and the other parent, and the benefit to the child of
meaningful relationships with both parents. Clearly, the judge ignored the
relationship that K and the applicant had already established, and the care,
including support and maintenance (parental responsibilities) that the
applicant had shown in respect of K.

Even in the United States – notorious for not having joined the CRC – the
courts in various states apply the doctrine of the best interests of the child in
much the same way as the rest of world. For example, the state of Delaware
prohibits courts from assuming that one parent, because of his or her sex, is
better qualified to act as a custodian or primary residential parent.30 Further,
Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts,
Michigan, North Dakota Ohio and others, consider, among other factors, the
emotional ties and relationships between the child and his or her parents
when determining the best interests of the child.31 If judges in many states in
the United States of America appreciate the contents of the doctrine of best
interests of the child and seek its guidance in making decisions involving
children, it becomes difficult to understand that the judge in Lesotho failed
to appreciate the scope of this doctrine.

28
Children’s Act 30 2005, s 7(1)(a)(I), (b) & (g).
29
Family Law Act 1975.
30
Del Code Ann Tit 13, s 722.
31
Child Information Gateway, ‘Determining the Best Interests of the Child: Summary of
State Laws,’ available at:
http://www.childwelfare.gov/systemwide/laws policies/statutes/best interest.cfm (last
accessed 7 August 2011).
 Lesotho children’s rights 123

It is now trite that one of the core elements of the best interests of the child
doctrine is that the child should know and have contact with both parents. To
this end, it is in the best interests of the child, K, to know his biological
father and to maintain contact with him. In the end, the judge erred in ruling
that it is not in the best interests of K to maintain contact with both parents
by ruling that the applicant should sever any relationship with K. In fact, the
judge ignored any parent-child relationship that the applicant and K had
already established, and the emotional and psychological impact that his
judgment would have on K and the applicant. Overall, it is not in the best
interests of K to grow up not knowing his father with whom he has already
formed a relationship.

Another point to note is that, when looking at the contents of the best
interests of the child doctrine and how it is applied in other jurisdictions, the
gender of the child is an important aspect which the judge did not consider.
As pointed out in the introduction, Lesotho is a patriarchal society deeply
embedded in male blood relations. As a result, the judge could have – and in
fact should have – taken K’s gender into account and against the backdrop
of the Lesotho culture, shown some sensitivity to the social alienation to
which he would be subjecting the child by cutting family ties between K and
his father.

The new Child Protection and Welfare Act has also not met the expectations
raised at the time of its adoption. Thus, its failure to elaborate on the meaning
and content of the best interests of the child will continue to be a problem
which can only be remedied by progressive courts, which, as evidenced from
this present case, is a serious challenge in Lesotho.

Maintenance
Turning to the second issue – maintenance – Justice Nomngcongo considered
the applicant to be an ‘ordinary third party’ concerning K, yet ‘this ordinary
third party’ is expected to pay maintenance towards the upbringing of K.
Ironically, the judge affirmed that it is the responsibility of the applicant to
maintain K, yet made no order in this regard. It is not clear why the judge
dismissed the entire application (including maintenance of K) that Lesala
made to the court. It makes no sense for the judge (correctly) to acknowledge
that an unmarried father has a right to pay maintenance for his child born out
of wedlock, but then to ignore this in the judgment. It is therefore submitted
that the judge erred in turning a blind eye to an order of maintenance
124 XLV CILSA 2012

requested by the applicant. Consequently, the judge compromised K’s right

to maintenance from his biological father.

It is also not clear from the judgment of Justice Nomngcongo that he

appreciates the legal definition of ‘maintenance’. Maintenance is defined
under common law as not limited to necessities of life such as clothing and
shelter, but also extends to education and care in sickness and other
essentials required for a child’s proper upbringing.32 Thus, in the case of Ex
Parte Pienaar, Judge Galgut stated that the duty of support/maintenance may
involve the duty to afford the child university education.33 It makes little
sense that the judge dismissed the entire application, considering that Lesala,
the applicant, indicated that he would pay K’s school fees; or that as
maintenance includes clothing, shelter, and medical expenses, he refused
these too, including the child-minder’s salary and other expenses regarding
K’s upbringing. On the basis of the absence of an order of maintenance, this
judgment highlights other missing factors. The judge seems to have been so
keen to grant the respondent’s wishes, that he ignored the valid points that
he himself identified regarding the duty of the applicant to contribute to the
maintenance of K.

While maintenance is a shared duty between the parents of the child, the
judge in effect placed an ‘undue and unfair burden’ on Ms Morojele to bear
all maintenance costs in relation to K’s upbringing. This could also be
challenged on constitutional grounds as being discriminatory on the grounds
of sex if Ms Morojele has to pay all the costs relating to K. Most importantly,
the CRC obliges state parties to ensure that both parents have a common
responsibility for the upbringing and development of the child.34 Equally
important, the CEDAW, to which Lesotho is a party, obliges state parties to
ensure that men and women have the same parental rights and
responsibilities irrespective of their marital status,35 so avoiding the
discrimination and stigma attached to children born of parents who are not
married to one another. In addition, the Lesotho Children’s Protection and
Welfare Act enjoins parents to exercise joint responsibility for raising their
child.36 The judge erred here too by denying the applicant the same rights and
responsibilities that he granted the respondent.

32
Oosthuizen v Stanley 1938 AD 322, 328; Hawthorne v Hawthorne 1950 3 SA 299 (C);
Glicksman v Talekinsky 1955 4 SA 468 (W).
33
1964 1 SA 600 (T).
34
CRC n 22 above, art 18(1).
35
CEDAW n 13 above, art16(d).
36
See s 20(2)(d).
 Lesotho children’s rights 125

Overall, while granting Ms Morojele’s wishes to waive the rights of K to

care, maintenance and other benefits from his biological father, the judge
overlooked one important aspect, which is that circumstances might change
in the respondent’s life, compelling K to seek out his father whom the judge
had effectively excluded from his life. This position was set out in Shields v
Shields, which involved a pregnant mother who wanted to waive the rights
of her unborn child to maintenance from its father.37 The mother expressed
a written wish not to see the plaintiff if he were to return to Cape Town and
undertook, when once the child had been born, to assume full responsibility
for it exemptioning the biological father from any contribution towards its
support. The court noted that although she was a wealthy woman,
circumstances could change. While she might be willing to undertake
responsibility for the support of the child, this should not affect the father’s
responsibility. Consequently, the court ruled that it could not consent to an
agreement that the biological father would not be obliged to maintain his
child being made an order of court – the child's position had to be
considered.38 In the same manner, Justice Nomncongo ought to have taken
the position of K into consideration; instead, he was distracted by the
respondent’s position and her new love-life.

CONCLUSION AND RECOMMENDATIONS

This case is a very unusual one for Lesotho, in that it involves denying a man
not only the opportunity to have access to his child born out of wedlock, but
also his wish to pay maintenance and contribute to its upbringing. The
judgment completely ignores contemporary law on children’s rights and
parental responsibilities. Equally, it has been an extraordinary judgment in
which Lesotho’s international obligations have been blatantly ignored.

Indeed, in terms of the old law, a child is being punished for the sins of the
parents – for being ‘illegitimate’ – but this position has since changed as we
no longer refer to children as ‘illegitimate’ but children born of married or
unmarried parents. The second edition of Boberg’s Law of Persons,
published in 1999, emphasises that it makes little difference today whether
a child is born out of wedlock.39 Children are now treated equally,
irrespective of their parents’ marital status, to the extent that a child born out

37
1946 CPD 242.
38
Id at 243.
39
Van Heerden n 24 above at 332.
126 XLV CILSA 2012

of wedlock can inherit intestate from his or her biological father.40 According
to the common law, children born out of wedlock can even claim
maintenance from their paternal grandparents.41 Had the judge read the 1999
publication of Boberg’s Law of Persons, and consulted cases on children’s
rights heard after the adoption of CRC, instead of digging into the South
African archives and outdated sources, he would have realised that the law
in respect of children born out of wedlock has changed significantly world-
wide.

The judge was clearly misguided in dismissing this application, More

importantly, he has revived the discrimination against children ‘born out of
wedlock’ and from which they have been freed in most parts of the world.
In so doing, he has violated the constitutional rights of both the biological
father and the child to freedom from discrimination, equality before the law
and equal protection of the law enshrined in the Constitution of Lesotho and
international treaties to which Lesotho is party. The judgment does not serve
the best interests of the child, K; rather it serves only the interests of the
mother. In conclusion, it is in the best interests of the child to grow up with
the love and care of both its mother and father, who do not necessarily have
to be married. Parentage is, after all, not dependent on marriage.

From the applicant’s point of view, there is a need to take the case on appeal,
since the Lesotho High Court is not the highest and final court, but the Court
of Appeal is. Alternatively, since the case raises constitutional issues, the
applicant can lodge an application with the Chief Justice of Lesotho to
convene the Constitutional Court to re-examine this matter.

For future developments, there is a serious need to expose Lesotho’s

judiciary to continuous training if individuals are to enjoy the rights and
receive the protections enshrined in the national laws and international laws
that the country has ratified. However, such training should be coupled with
resources, such as an up-to-date library (which must include subscriptions to
various databases) and access to the Internet for judges. As it stands, the
Lesotho High Court library is not equipped with recent information. Human
resources, such as researchers to assist the judges, are equally important.

40
Makholiso v Makholiso 1997 4 SA 509 (Tk).
41
Davies v R 1909 EDC 149 at 155.