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[2012] ZAGPJHC 56
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P and Another v S (27515/2011) [2012] ZAGPJHC 56 (12 April 2012)
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case No. 27515/2011
In the matter between:
P
First Applicant
P
Second Applicant
And
S
Respondent
JUDGMENT
MEYER, J
[1] This matter concerns the
determination of all the parental responsibilities and rights in
respect of a three year old
girl, S, who was born on 25 June 2008.
The first applicant is her father and the respondent her mother.
They were never
married to each other. The second applicant is
her paternal grandmother.
[2] The first applicant, in the
first instance, sought a declaratory order that he had acquired full
parental responsibilities
and rights in respect of S, as envisaged in
sections 18 and 21 of the Children’s Act 38 of 2005, to care
for her, to maintain
contact with her, to act as her guardian, and to
contribute towards her maintenance. This is a proper case in
which such
declaration ought to be made and this claim was correctly,
in my view, not opposed by the respondent.
[3] Past attempts between the
first applicant, the respondent, and their respective legal
representatives, at defining the
applicants’ contact with S,
and of quantifying the first applicant’s responsibility to
contribute towards her maintenance,
have failed. A
determination of these elements of parental responsibilities and
rights also form part of the relief sought
in these proceedings.
[4] The parties - at the doors
of this court - resolved the issue relating to the applicants’
future contact with S.
Their agreement relating to the
definition of the applicants’ future contact with S essentially
followed the recommendations
of Ms Robyn Fasser, a clinical
psychologist, and
inter alia
provides for the appointment of a
case manager and the preparation of a parenting plan. I was
satisfied that the draft order
that had been prepared by the parties,
which provides for a declaration that the first applicant had
acquired full parental responsibilities
and rights in respect of S,
the definition of the applicants’ future contact with S, the
appointment of a case manager and
the preparation of a parenting
plan, would benefit and serve the best interests of S. I
accordingly granted an order in terms
thereof.
[5] The only issue remaining is
the quantification of the first applicant’s duty to contribute
to the maintenance of
S. A consideration of the entire set of
facts that are presented in the various affidavits filed in these
proceedings leads
me to agree with the submission of Mr Wim Trengove
SC, who appeared with Ms Jenny Woodward SC for the applicants at the
postponed
hearing concerning the first applicant’s duty to
contribute to the maintenance of S, that even though the first
applicant
has been contributing towards the maintenance of S since
her birth, the scope of the first applicant’s maintenance
obligation
remains a very real and heated dispute between the first
applicant and the respondent.
[6] It is undisputed that the
parties previously agreed on the terms of a settlement in relation to
the first applicant’s
duty to contribute towards the
maintenance of S as well as a definition of the applicants’
contact with S. They agreed
that the first applicant would
contribute the sum of R5, 000.00 per month as maintenance for S
escalating at 10% per annum, maintain
her on a medical aid scheme at
his cost, and pay for her educational costs in due course. On
10 July 2009, the respondent
refused to sign the agreement only
because she did not wish the second applicant’s contact with S
to be ‘in black and
white’.
[7] On 11 August 2009, the
respondent instituted proceedings against the first applicant in the
maintenance court. She
did so by a subpoena served on the first
applicant at half-time in an international soccer match in which he
played. A further
subpoena was subsequently served on the first
applicant, which called on him to attend a maintenance enquiry on 22
September 2009.
Attempts at resolving the maintenance court
proceedings failed. The matter was set down for hearing on 3
June 2010.
The first applicant was anxious for the matter to be
determined and finalised, and he accordingly insisted that the
enquiry proceed
on the day allocated for the hearing thereof.
On 31 May 2011, however, the respondent, without explanation,
withdrew the
maintenance proceedings against the first applicant.
[8] A few days prior to the
withdrawal of the maintenance proceedings in the maintenance court,
the respondent, on 26 May
2011, initiated maintenance proceedings
against the first applicant in a court in England, which proceedings
are presently pending.
The respondent has also from time to
time made different claims in respect of the amount that the first
applicant ought to contribute
to the maintenance of S.
[9] I interpolate by referring
to the competence of the first applicant’s present claim for
the scope of his duty to
maintain S to be determined in these
proceedings where no claim for a contribution to the maintenance of S
is made against him.
The High Court is, in terms of s
19(1)(a)(iii) of the Supreme Court Act 59 of 1959, vested with the
power,
‘…
in
its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination.’
[10] S 19(1)(a)(iii) of the
Supreme Court Act calls for a two-stage enquiry. The Supreme
Court of Appeal, in
Cordiant Trading CC v Daimler Chrysler
Financial Services
2005 (6) SA 205
(SCA), paras 16 and 18, said
this:
‘
Although the
existence of a dispute between the parties is not a prerequisite for
the exercise of the power conferred upon the High
Court by the
subsection, at least there must be interested parties on whom the
declaratory order would be made binding. …
[T]he two stage
approach under the subsection consists of the following. During
the first leg of the enquiry the Court must
be satisfied that the
applicant has an interest in an “existing, future or contingent
right or obligation”. At
this stage the focus is only
upon establishing that the necessary conditions precedent for the
exercise of the Court’s discretion
exist. If the Court is
satisfied that the existence of such conditions has been proved, it
has to exercise this discretion
by deciding either to refuse or grant
the order sought. The consideration of whether or not to grant
the order constitutes
the second leg of the enquiry’
[11] In
Adbro Investment Co v
Minister of Interior
1961 (3) SA 283
(T), at p 285D, it was held
that for a court to grant a declaratory order in the exercise of its
discretion
‘
some
tangible and justifiable advantage in relation to the applicant’s
position with reference to an existing, future or contingent
legal
right or obligation must appear to flow from the grant of the
declaratory order sought.’
Also see:
Myburgh Park
Langebaan v Langebaan Municipality
2001 (4) SA 1144
(C), at p
1153F-G.
[12] I am of the view that the
necessary conditions precedent exist to make a declaration regarding
the quantification of
the first applicant’s maintenance
obligation towards S and that it is ‘eminently desirable’
that it be done.
See:
Compagnie Interafricaine de
Travaux v SA Transport Services
[1991] ZASCA 16
;
1991 (4) SA 217
(A), at p 231B.
Both parties seek for the scope of the first applicant’s
support obligation to be determined, albeit
in different courts.
The best interests of S unquestionably demand that the scope of her
father’s responsibility for
her maintenance be determined.
The respondent states in her answering affidavit that ‘[i]t
would not serve (S’s)
interests for her maintenance, over the
next 20 years, to be subject to (the first applicant’s) moods
and whims.’
[13] Relying on
Ex parte
Sadie
1940 AD 26
,
Kethel v Kethel’s Estate
1949 (3)
SA 598
(A), and
Wolman v Wolman
1963 (2) SA 452
(A), Mr Warren
Banks, who appeared for the respondent, submitted that if this
application had been instituted for a declaration
of rights in
respect of a minor child then a
curator ad litem
would have to
be appointed to represent the child. I disagree with counsel’s
submission in this regard. The decided
cases on which counsel
relied do not concern proceedings for the determination of the scope
of a parent’s maintenance obligation
towards his or her minor
child, but they concern proceedings relating to the interpretation or
validity of wills and the appointment
of a
curator ad litem
to
represent minors and unborn issue whose possible rights might be
affected.
[14] I should also mention that
counsel did not rely on s 28(1)(h) of the Constitution of the
Republic of South Africa Act
108 of 1996, which provides that
‘[e]very child has the right … to have a legal
practitioner assigned to the child
by the state and at state expense,
in civil proceedings affecting the child, if substantial injustice
would otherwise result.’
It has not been shown that
injustice, let alone substantial injustice, would result if a
curator
ad litem
is not appointed to S.
[15] The respondent has raised
the defence of
lis pendens
on the grounds that the same issue,
namely the scope of the first applicant’s duty to support S, is
pending in a court of
a foreign state, England, having jurisdiction
over the applicant. A court has a discretion whether or not to
allow a matter
to proceed notwithstanding that the same issue is
pending in another suit in a court of competent jurisdiction.
Considerations
of convenience and of equity are generally decisive in
the exercise of that discretion (see:
Van As v Appollus en
Andere
1993 (1) SA 606
(CPD), at p 610D – F), although the
provisions of s 28(1) of the Constitution, which provide that ‘[a]
child’s
best interests are of paramount importance in every
matter concerning the child’, and of s 9 of the Children’s
Act,
which provide that ‘[i]n all matters concerning the care,
protection and well-being of a child the standard that the child’s
best interest is of paramount importance, must be applied’,
enjoin a court to apply that principle of paramountcy also in
the
exercise of the discretion whether or not to allow a defence of
lis
pendens
to succeed in matters concerning children.
[16] Assuming in the
respondent’s favour that all the necessary elements of the
lis
pendens
defence are present, I am of the view that the fact that
a court of competent jurisdiction in England may make a maintenance
order
in time to come does not warrant a suspension of part of the
relief claimed in these proceedings wherein this court is called upon
to determine all the elements of parental responsibilities and rights
pertaining to and in the best interests of S. Compare:
Hubert v Hubert
1960 (3) SA 181
(WLD), at p 185 C – E.
The considerations, which in the best interest of S, tip the balance
against allowing the defence
of
lis pendens
are that the
respondent and S have always been resident within this court’s
jurisdiction. This court is the upper guardian
of S. The
first applicant is a South African citizen by birth who owns
immovable and movable property here. This court
in these
proceedings is called upon to determine all the elements of parental
responsibilities and rights pertaining to S.
Parental
responsibilities and rights, in terms of s 18(2)(d) of the Children’s
Act, include the responsibility to contribute
to the maintenance of a
child. The respondent, in her answering affidavit, states that
S ‘… is 3 years of age.
Her needs and desires are
going to change substantially from time to time.’ The
order which I have already granted
includes the obligation upon the
parties to jointly appoint a case manager to protect the best
interests of S and to assist them
in resolving any conflict which may
arise between them. The
Maintenance Act 99 of 1998
also
provides a procedure tailor-made for the determination of any future
disputes that may arise between the first applicant and
the
respondent relating to the legal duty of the first applicant to
contribute to the maintenance of S. Other considerations of
convenience and of equity include that the expenses relating to the
maintenance of S are and will continue to be incurred in South
Africa
and that she must be maintained according to local standards.
[17] It is trite that a child is
entitled to be maintained by his or her parents and that they are
jointly obliged to provide
the child ‘… with everything
that it reasonably requires for its proper living and upbringing
according to their means,
standard of living and station in life.’
See:
Herfst v Herfst
1964 (4) SA 127
(WLD, at p 130C -
H.
[18] The respondent is employed
as a campaign manager in Johannesburg and her net monthly income is
in the region of R5, 000.00.
The first applicant is a
professional soccer player and he is financially able to pay any
amount of maintenance required to meet
the reasonable needs of S.
The parties have never lived together and the respondent has resided
at her parental home in Roodepoort
for as long as the first applicant
has known her.
[19] The respondent has not
refuted the first applicant’s estimation of the reasonable
requirements of S, nor has she
presented any evidence that S’s
reasonable requirements exceed those proposed by the first applicant
in terms of the draft
order that was handed in on his behalf, which
provides for payment of an amount of R12, 000.00 per month together
with all S’s
medical expenses, all her reasonable educational
expenses - including the cost of private schooling, reasonable
tertiary education
at a university or institution of higher learning
in South Africa, and various expenses incidental thereto - and the
reasonable
costs in respect of an
au pair
for her.
[20] The amounts proposed by the
first applicant in quantification of his duty to contribute to the
maintenance of S, exceed
the amounts to which the first applicant and
the respondent agreed during 2009, and such amounts also exceed the
first applicant’s
present payments towards the maintenance of
S, which are monthly payments of £960.00 sterling, the
retention of S at his
cost on a medical aid scheme, and the payment
of her medical expenses.
[21] I am accordingly, on the
facts presented in this application, satisfied that the reasonable
requirements of S are justly
provided for in the proposed draft
order.
[22] Finally the matter of
costs. The applicants have been substantially successful in
these proceedings. I have,
however, been informed by counsel
for the applicants that no order of costs is sought against the
respondent. I consider
an order that each party pays his or her
own costs of the application, which is provided for in paragraph 2 of
the proposed draft
order, to be the appropriate order to make.
[23] In the result, I grant an
order in terms of the draft order, which is signed and dated by me.
P.A. MEYER
JUDGE OF THE HIGH COURT
12 April 2012
Dates of hearing: 1 December
2011 and 28 February 2012
Counsel for the applicants: Mr Wim
Trengove SC
Ms
Jenny Woodward SC
Counsel for the
respondent: Mr Warren Banks
Attorneys for the
applicants: Gary Janks, Sandton
Attorneys for the
respondent: Shields Chiat Attorneys, Illovo, Johannesburg