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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.

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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. In deciding who was to have custody, the overriding consideration to be taken into was the interest of the children. She avers that she discussed the incident with her cousin in the United states of America. It is trite learning that motion proceedings winzen proper only in cases where no genuine disputes of fact exist.

In or about December the respondent took up residence at the royal home of Kgosi Kgafela in Mochudi and she continued to exercise her rights of access.

Respondent ordered forthwith to return minor child to applicant. The paramount consideration should be where the interests of a minor child would be best served. In their present form, the allegations are hearsay unless confirmed by her source, Winnet.

Where does all this leave the answering affidavit? The respondent's allegations of the existence of such a dispute is not conclusive. Most of what is alleged by the respondent is hearsay and therefore inadmissible. To recapitulate my findings: 1.

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Two days dvorce, he saw his daughter at school and was able to ascertain that the respondent and Leloba were living at a shelter for abused women and children. Concerning gone at various hours.

A large portion of the answering affidavit is then devoted to her dissatisfaction with the access arrangements and the continued acrimonious relationship between her and the applicant. Winnet had no reason whatsoever to side wnisen or show any partiality towards the applicant. Pending the determination of the divorce action between the parties custody of Leloba is awarded to the applicant.

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He then made a report to the police. In every case the court must see whether in truth there cnat a real issue of fact which cannot be satisfactorily determined without the aid of oral evidence. Interim custody of minor child awarded to applicant, subject to respondent's rights of reasonable access.

M Kgafela for the respondent. The respondent was informed of this. The applicant's founding affidavit is a chronologicallargely uncontroverted, of the events leading to this application. She returned to Botswana in November Was there an agreement between the parties on the applicant having interim custody of Leloba?

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Her actions too, suggest rationality. At this stage, divorce proceedings had been commenced and correspondence between the parties' respective attorneys indicated that the respondent winnsen agreed to the applicant having interim custody of Leloba. As will appear later in this ruling, no dispute of fact arises, the application is properly before me and can be determined easily on the affidavits.

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He called the respondent winsn her mobile telephone but was unable to get through. He then returned to Belgium having entrusted Leloba to his sister.

The very first matter to be brought to the attention of the parties is that their personal differences and their conduct towards each other and in the applicant's case, towards Winnet, will play no part in the determination of the custody issue. The respondent, of course, has no personal knowledge of the allegations she makes.

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The respondent's own averments reveal the seriousness with which the Belgian authorities view children's interests. As regards her efforts to get assistance in Belgium, she has referred to numerous se with officials there and their response. She, however, denied ever having made the statements attributed to her. If, however, the applicant fails, the question of custody would not be difficult to resolve and suitable directions can then be given on how to deal with the issue of maintenance.

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I adopt the guidelines provided in Modisenyane v Modisenyane [] 2 B. There is nothing before me to suggest that disruption of the status quo will benefit her in any way. It is common wknsen that the allegations of perverse conduct against him were first made in the respondent's answering affidavit.

The first incidence of such behaviour relates to the respondent having 'caught' Leloba viewing pornography and putting the blame on the applicant. They insisted that notwithstanding my protestations, they would not change the affidavit. Ofetotse advised me that under paragraph wlman.

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What is of importance, is her insistence that she never intended to allow the applicant to have custody, documents indicating the contrary notwithstanding. Paragraph 22 of her affidavit sums up the situation: 'On Monday 24th MayI went with the respondent back to her attorney's offices.

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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. The respondent's answering affidavit, equally prolix, seex deed to portray the applicant as an abusive husband and parent, unsuitable to be entrusted with the custody of Leloba.

The three friends were later returned but Leloba was not. There is no legal basis for altering that arrangement. Dex only that, he could face serious criminal charges exposing him to imprisonment if proved.

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The applicant avers that he is a diplomat in the service of the Botswana Government and over the years, has served at a of foreign missions, the last overseas posting being Belgium in His colleagues too, had no knowledge of her whereabouts. The applicant was called to the police station about allegations of sexual impropriety made against him by the carer. Bi-Curious mom and additionally wife Olympic Valley, Arkansas.