A Judge in Lesotho Digs into South African Archives to take Children’s Rights Back to the Stone Age: Masupha Lesala v Hlapase Lineo Morojele

Abstract

For a long time, children born of unmarried parents have not been accorded the same rights and benefits as children born of married parents. Today, the international community has unanimously condemned the discrimination against children born of unmarried parents (previously referred to as ‘illegitimate children’) through the adoption of the Convention on the Rights of the Child. To that end, Lesotho has joined those who addressed discrimination against children born to unmarried parents. However, the case of Lesala v Morojele decided by the High Court of Lesotho leaves much to be desired and has prompted this paper. In this case, the judge, relying on very old South African jurisprudence, ruled that an unmarried father has no rights to his child born out of wedlock. He ruled that it is not in the best interests of the child to keep contact with his father who is not living with the child’s mother. This note seeks to analyse this decision critically by exploring the unmarried father’s right of access to his child born out of wedlock, and the court’s subsequent failure to grant an order of maintenance.