Kendall v Mofana and Others (CIV/APN 249 of 98) [1998] LSCA 63 (23 June 1998)

CIV/APN/249/98 IN THE HIGH COURT OF LESOTHO In the matter between: KATHRYN(LIMAKATSO) KENDALL APPLICANT and PALESA LILLY ANACLETA MOFANA 1st RESPONDENT MANKO MARIA MAICHU 2ND RESPONDENT ANNE MASEFINELA MPHUTHING (as Guardian) 3RD RESPONDENT JUDGMENT Delivered by the Honourable Mr Acting Justice S. N. Peete on the 23rd day of June, 1998. On the 23rd June 1998, Mr Maieane appeared before this court moving an application in which the Applicant, a female citizen of United States of America, sought to adopt two minor Basotho girls aged 11 and 10 respectively, with w h om she was presently staying in Pietermaritzburg, Natal in the Republic of South Africa. They are cited herein as 1st Respondent and 2nd Respondent. The Applicant also sought leave to bring the application for adoption before the High Court because adoption applications are ordinarily brought before the Subordinate Courts, in support of her application for leave to bring this application, Mr Maieane had also made an affidavit stating that this court ought to hear this application because (a) the constitutionality of section 14 of the Adoption Proclamation N o. 62 of 1952 was in issue and (b) the Applicant desired also to be granted permission to remove the said children from Lesotho after the adoption has been granted. Our Chief Justice has recently made an important judgment in Tankiso Hlaoli vs Karabo Timothy Hlaoli - CIV/Adoption/1/98 ( CC 5/97) in which the Chief Justice stated authoritatively as follows:- "I have come to the conclusion that section 14 of the Adoption of Children Proclamation No. 62 of 1952 is unconstitutional and I declare it as void." That section 14 read as follows:- "This Proclamation shall not apply to Africans and nothing in this Proclamation contained shall be construed as preventing or affecting the adoption of an African child by an African or Africans in accordance with the Basotho law and custom." The declaration as void of this obnoxious section is to be welcomed by all in our n ew constitutional dispensation which indeed outlaws discrimination in all its forms. In her founding affidavit, the Applicant states that she is a female citizen of United states of America aged about 53 and she is presently permanently residing in the Republic of South Africa where she is holding the position of Professor of D r a ma at the University of Natal - Pietermaritzburg Campus where she is a permanent employee. She continues to state that in August 1992 she visited the National University of Lesotho as a Senior Fullbright Scholar and her engagement lasted until July 1994. It was during her stay at the R o ma campus of the University that she met Palesa Mofana a young Mosotho girl whose alcoholic mother Mamaqelepo was unable to provide for her with necessary maintenance and other basic needs. At the time Palesa was stricken with typhoid and the Applicant states that she took her to St. Joseph's Hospital for treatment and duly paid her medical bills; after Palesa was discharged from hospital, the Applicant took her into her University campus residence and their attachment grew. Applicant states she also provided for her education at R o ma Primary School and later at St Rose Primary School. During the same time the Applicant also met M a n ko Maria Maichu, a young orphan girl through Palesa. M a n ko also began staying with the Applicant; Manko's grandmother asked the Applicant to take care of Manko. On the 10th August 1995 the Applicant successfully made an application before the Maseru Subordinate Court for an order that she be declared a foster parent to M a n ko apparently under section 10 (1) (b) of the 1980 Children's Protection Act. This foster - parenthood order was later extended in 1997 for another two years. In her founding affidavit the Applicant avers that she is qualified to adopt the two girls and that she is of good repute, and she is a fit and proper person w ho has adequate means to maintain and provide for the general welbeing of the two girls and that the proposed adoption will serve the interests and conduce to the welfare of the girls. The affidavit of A n ne Masefinela Mphuthing, the Registrar of the National University of Lesotho, supports the Applicant in this regard and the Registrar relates h ow the Applicant like the biblical Good Samaritan took the two girls w ho were in need of care into her residence and cared for their needs; she states that the Applicant is a lady of good repute w ho has adequate means to maintain the two girls. Mr Makalo Marite, a social worker in the Social Welfare Department has also made a supporting affidavit in which he states that he has k n o wn the Applicant since 1994 when she applied to be declared a foster parent of the two girls and that Applicant has proved herself to be a caring and capable foster parent to the two girls. With the nullification of Section 14 the Applicant has capacity to adopt the two Basotho girls, and what remains to be considered is whether it is in the best interest of the two girls that they be adopted by the Applicant whose nationality, domicile and residence the two girls will adopt; they will also adopt the Applicant's surname. In this case, the girl M a n ko is an orphan and the other girl Palesa has an alcoholic mother. The interests of young children involve good family and stable parenthood, good education and favourable environment and all these cannot be accessible to the two girls if they are returned to their original abodes; on the other hand, I am of the opinion that the best interests of the two girls favour adoption by Applicant w ho has shown herself to be a suitable person to serve those interests. The application is therefore granted as prayed and the Applicant is also permitted to remove the said children from the jurisdiction of this court. For Applicant: Mr Maieane S. N. Peete Acting Judge 5