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Headnote Pending finalisation of the parties' divorce, they concluded a settlement agreement in terms of which the applicant was to have interim custody of their minor daughter, Leloba. Notwithstanding the agreement, the respondent removed Leloba from the applicant's custody without his consent. The respondent resisted the application on the ground that she had removed Leloba from the applicant's custody because he displayed improper sexual conduct towards the. The respondent also denied the existence of the alleged settlement agreement. Held: 1 The settlement agreement, which included agreement on the interim custody of Leloba, had been proved.

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Fearing that she had left the matrimonial home, he went through her personal effects to ascertain if she had removed any of these.

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If the respondent and Mrs Kgafela were so concerned about Leloba's wellbeing, it is inconceivable that they would not have expressed their concerns to Kgosi Kgafela. M Kgafela for the respondent. Most of what is alleged by the respondent is hearsay and therefore inadmissible. As will appear later in this ruling, there was no apprehension of any harm to Leloba. There are other reasons why the allegations of sexual impropriety against the appellant cannot be sustained.

Paragraph 22 of her affidavit sums up the situation: 'On Monday 24th MayI went with the respondent back to her attorney's offices.

She also took issue with father and daughter sleeping in the same bed, calling this abnormal in itself. Whatever her reasons, she agreed to the arrangement voluntarily and is bound by what she agreed.

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Concerning gone at various hours. His colleagues too, had no knowledge of her whereabouts.

The next day there was an exchange of text messages between the applicant and Kgosi Kgafela and the latter indicated that Leloba was at his home and would be returned to the applicant after the holiday. The applicant was called to the police station about allegations of sexual impropriety made against him by the carer. On 15 AprilLeloba's carer left her employment.

She read through my lawyer's handwritten notes and confirmed that they reflected the truth but this morning, Monday, May 24th,she prevaricated.

As regards the allegations of sexual abuse, if there is the slightest likelihood of the respondent's allegations of the applicant's perverse behaviour being true, I will have no hesitation whatsoever in awarding custody of Leloba to the respondent. There is nothing in the papers to suggest that she was in any way Wjnsen J compelled to enter into the agreement on the interim custody of Leloba.

Winnet has not ed a confirmatory affidavit. The respondent was naturally very upset at this. On 16 April the respondent called, wanting to collect Leloba, who was playing at home with other children. He could have done so only on the basis of what the respondent told him. Accordingly, paras Pending the final determination of this application that paragraphs 2. She was told this by the child's carer Winnet and the report was to the effect that she, Winnet, had reason to believe that the applicant had been engaging in sexual intercourse with Leloba as father and daughter slept in the same room, Leloba's undergarment was often malodorous and showed traces of an abnormal discharge.

If the applicant succeeds, no need will exist to deal with the counter application. The matter of Leloba's malodorous underpants is explained in the supporting affidavit of Tendai Magwanzi, a former employee of the applicant. In every case the court must see whether in truth there is a real issue of fact which cannot be satisfactorily determined without the cgat of oral evidence. Winnet had no reason whatsoever to side with or show any partiality towards the applicant.

He then decided to remove Leloba from the centre and return her to Botswana. The costs of this application shall stand over for determination at the substantive hearing on custody. Sincethe parties' marriage had been an unhappy one but it disintegrated completely in Belgium, with no prospect of reconciliation.

The respondent resisted the application on the ground that she had removed Leloba from the applicant's custody because he displayed improper sexual conduct towards the. Headnote Pending finalisation of the parties' divorce, they concluded a settlement agreement in terms of which the applicant was to have interim custody of their minor daughter, Leloba. There had been differences between them, she had reed and had einsen started working for the respondent. As regards her efforts to get assistance in Belgium, she has referred to numerous conversations with officials there and their response.

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In the early part ofhe was informed that he was to be recalled to Botswana in July The applicant replies that he was in Ghana in and no mention of the alleged incident was ever made to him on his return. Mr Kgafela divofce he would take it to court as is. The matter must therefore be referred to trial.

It chqt to be noted that the respondent does not seek custody pendente lite but a final order for custody. He called the respondent on her mobile telephone but was unable to get through.

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