Khumalo v Dalmini.pdf - SwaziLII

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$IN THE HIGH COURT OF S\V AZIL.\i'W S\V AZILAND ... - SwaziLII$

(b)(c)(d)(e)(f)That an order be and is hereby issued interdicting andrestraining the First Respondent from burying the deceasedminor child Naledi Lerato Dlamini at his parental home.That an order be and is hereby issued giving the rights to burythe said deceased minor child to the Applicant.That an order be and is hereby issued restraining the SecondRespondent from releasing the body of Naledi Lerato Dlamini tothe First Respondent.Costs of Application.Further and/or alternative relief.[1] A Rule Nisi was issued by this Court on the 31st December2009 in terms of Prayers (a), (b) and (d) returnable on the 7thJanuary 2010.[2] It is common cause that the Applicant and First Respondentwere married to each other in terms of Civil Rites on the 11thAugust 1989; and, a final decree of divorce as between theparties was issued on the 6th August 2001 by the ManziniMagistrate Court.[3] Custody of the minor children Naledi Lerato Dlamini, thedeceased, and Tebogo Manelisi Dlamini was given to theapplicant in terms of a Divorce Settlement agreed to by theparties and made an Order of Court.[4] The Applicant alleges that at the time that the marriage wassolemnized, the Applicant was already pregnant with thedeceased child. Neither dowry nor the penalty for impregnatingthe Applicant was paid to her family by the First Respondent interms of Swazi Law and Custom. However, since the marriagebetween the parties is by Civil Rites, I will decide thisApplication on the basis of the Common Law.
[5] Applicant alleges that since their birth, she has been responsiblefor the maintenance of the minor children without the assistanceof the First Respondent. The latter has denied this in hisAnswering Affidavit. However, the Applicant has annexed tothis Application an affidavit deposed to by the First Respondenton the 5th October 2007; Paragraphs 2 and 3 of the Affidavitread as follows:“I was previously married and later divorced from Ms ManziniRoster <strong>Khumalo</strong>. Two children were born of the said marriagenamely Naledi Lerato Dlamini and Tebogo ManelisiDlamini….My former wife has throughout the lives of our children,financially maintained them. This included catering for all theirschool expenses as I was unable to do so. She has continued todo so even after leaving Swaziland to live and work in theUnited Kingdom.”[6] Ironically, the First Respondent in his Answering Affidavitadmits that he deposed to this affidavit but states that it was afabrication by himself intended to obtain visas for the minorchildren so that they could join the Applicant in England topursue their education there. I don’t believe this particularlybecause the Affidavit was signed and sworn to before a NotaryPublic.[7] It is common cause that after the decree of divorce had beengranted the Applicant bought a home at Ngwenya Village. Shethen migrated to England for employment and left the minorchildren in the care of a minder Sisi Ndlovu; the latter hasdeposed to a Confirmatory Affidavit which is annexed to thisApplication. The minder and children were residing atApplicant’s home at Ngwenya Village.
Page 4 and 5: [8] The deceased child died on the
Page 6 and 7: y the father, unless the mother obt
Page 8: M.C.B. MAPHALALAJUDGE OF THE HIGH C

Khumalo v Dalmini.pdf - SwaziLII

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