Court name
High Court of eSwatini
Case number
2395 of 2005

Mchobokazi v Mathunjwa and Another (2395 of 2005) [2006] SZHC 14 (01 February 2006);

Law report citations
Media neutral citation
[2006] SZHC 14












IN
THE HIGH COURT OF SWAZILAND











CIVIL
CASE NO.2395/05



In
the matter between:


NOAH
BAFANA MCHOBOKAZI APPLICANT





AND





ALFRED
MATHUNJWA 1
ST
RESPONDENT





LENAH
MATHUNJWA
2nd
RESPONDENT








CORAM: MATSEBULA
J





FOR
APPLICANT: MR. MAHLALELA





FOR
RESPONDENTS: MR. JELE
















RULING
ON POINTS OF LAW FEBRUARY 2006






By
notice of motion moved at the instance of applicant, applicant prays
for the following relief:




  1. That
    he be granted custody of the minor child named Sebenele Mchobokazi.


  2. Costs
    of application.







Applicant
filed a founding affidavit wherein he states
inter
alia,
that
he is the biological father of the child in question. The child
was born on 21
st
June









2002.
It is common cause that the mother of the child died during the birth
of the minor child. Applicant and deceased were married in terms of
the Swazi law and custom - a marriage certificate is annexed as
"NB2".






It
is applicant's evidence that an agreement was reached between him and
the maternal grandparents of the minor who are the respondents in the
case. This agreement was reached that the child was still very young
and should be in the custody and care of the maternal grandparents.






In
his paragraphs 7, 7.1(2) (3) (4) (5) plaintiff sets out all the
necessaries he provides for his child. These paragraphs are partly
admitted by the 1
st
Respondent
and others denied 1
st
Respondent avers that applicant was contributing an amount of
E1000.00 per month and stopped in September 2003.






On
the whole, considering the answering affidavit of 1
st
Respondent the court is satisfied that applicant was making a
meaningful contribution towards the maintenance of the minor child
whilst it was in the custody of 1
st
and 2
nd
Respondents.
Respondents' former attorney who subsequently withdrew as attorney of
record was MAHLALELA AND ASSOCIATES. The Respondents then engaged the
services of ROBINSON BERTRAM.






Mr.
Jele who now appears for Respondents and have filed heads of argument
dealing with preliminary points. In his preliminary points, Mr. Jele
admits what is common cause i.e.


1.1.
That applicant is the natural father of the minor child.


1.2.
That Phikie Mchobokazi was the mother and that she died whilst giving
birth to the child.


1.3.
The deceased was the daughter of 1
st
and 2
nd
Respondents.


1.4.
That applicant and 1
st
and 2
nd
Respondents reached an agreement that the minor child remains with in
the custody of 1
st
and 2
nd
Respondents in view of the fact that she was still an infant.



Mr.
Jele then deals with Respondents' opposing affidavit. Mr. Jele states
that they deny that applicant was contributing towards that
maintenance of the minor child; save for the medical contribution and
he refers to in paragraph 6 of Respondents' answering affidavit. In
their paragraph 6 the Respondents deal with the hiring of the maid
and payment of her wages that she was last paid in November 2003.






As
I have indicated above in my ruling, I am generally satisfied that
Applicant was meeting his obligation to maintain the minor child.






In
paragraph 4.1 of Mr. Jele's heads of the preliminary points he makes
a bold statement that applicant has failed to provide maintenance for
the child and that he has approached the court with dirty hands. In
paragraph 4.2 he states that applicant has also refused to hand over
the child's birth certificate notwithstanding that Respondents have
sole custody of the minor child. Mr. Jele then ushers in the doctrine
of clean hands as he interprets it and he refers to:-



(a)
PHOTO AGENCIES (PTY) LTD VS THE COMMISSIONER OF THE ROYAL SWAZILAND
POLICE AND THE GOVERNMENT OF SWAZILAND 1970-76 SLR 398 @407.



(b)
FIKILE MTHEMBU VS WELILE MABUZA CIVIL CASE NO.3645/2005.






Both
the above cases were decided by this Court. In the Photo Agencies
case certain goods viz arms and ammunition were imported in violation
of Section 81(1) as in contravention with Section 113(1) (K) and
113(K) of the
CUSTOMS,
EXCISE AND SALES DUTIES ACT 21/1971
Section
27(1) and (2) and Section 30(3) of the
ARMS
AND AMMUNITIONS ACT 24
of
1964; and section 5(2) of the
EXPORTATION
AND IMPORTATION RESTRICTION ACT 46/1939 LAW OF CONTRACT.






The
goods in question so alleged the applicant had been consigned from
Brazil to Mbabane via Johannesburg and had arrived in Swaziland in
error and that it was never intended to import them into Swaziland
but that the address in Mbabane was used in order to avoid a breach
of the embargo which had been placed by the United Nations
Organisation upon the supply of ARMS AND AMMUNITIONS to South Africa
by its member countries. Applicant denied any fraudulent intent or
intention to embarrass or prejudice the Kingdom of Swaziland and
further contended that the UN Security Council resolutions in
question were neither mandatory in character nor part of the domestic
law of Swaziland.






The
applicant is a South African registered company having no branch or
office in Swaziland who sought an order from the High Court against
the Commissioner of Police who had ordered the seizure of the goods
on their arrival by air in Swaziland.






In
the Fikile Mthembu case - a fairly recent decision of this court. It
was held that a person should not by reason of the subtlety of the
civil law and contrary to the dictates of natural justice, derive
advantage from his own bad faith.






In
both the case cited above, the doctrine of dirty hands is of
application, if not directly then by the necessary implication. In
order for this court to decide whether the
ratio
decidendi
in
the cases cited above are of application to the present matter one
must go into the merits and particular circumstances of those cases.






In
the cases of the application and 1
st
and 2
nd
Respondents, the applicant is the biological father of the minor
child concerned; and as such not only he but also the minor child is
entitled to reasonable access to each other. Applicant is also
entitled to custody of the minor child taking into account the
particular circumstances relating to the interest of the minor child;
whereas in the Photo Agencies case the applicant brazenly admitted
that it used a false address in Swaziland in order to overcome and
circumvent the resolution of the UN Security Council. By doing so it
became enmeshed in the web of deceit of its own creation. Applicant
was consequently not entitled to seek or be granted relief by a
Swaziland court. The facts in the Fikile Mthembu case are; briefly:
Fikile Mthembu sought an order against her partner restraining him
from
inter
alia
using
the premises used jointly by the partners, assessing the partnership
accounts and funds etc. From her affidavit it emerged that the trust
account of the partnership had been fiddled with by both the
applicant and the respondent. The Court held correctly in my view
that applicant had dirty hands which she had to purge first before
approaching the court for a relief. By purging her dirty hands simply
means in the legal parlance she had to ask the court to be condoned.






I
find the present case distinguishable.



(a)
It is common cause that applicant is legally entitled to the custody
of his own biological minor child.



(b)
He has deposed to an affidavit that he has hired:-



(i) a
maid Mrs. Mhlanga to take care of the minor's needs and
he pays
her.



(ii) He
has been paying money to the Respondents for the
needs of the
minor child.



(iii) He
buys her clothes.



(iv) He
has established a medical scheme for the minor child.



(v) Opened
a banking account on her behalf etc.






I
cannot find on the evidence before me that applicant is approaching
the court with dirty hands. As to whether or not there is dispute of
fact, I don't propose to deal with that in the particular
circumstances of this case. The main consideration in this matter is
the interest of the minor child. The court, in the interest of the
minor child is enjoined to refer the matter to oral evidence at any
stage of the hearing.








The
preliminary points are dismissed. In the particular circumstances of
this case, I make no order as to the costs and costs will be
reserved until the main notice of application is heard.












J.M.
MATSEBULA



Judge