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[2014] ZAGPJHC 132
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D v D (2012/47100) [2014] ZAGPJHC 132 (26 March 2014)
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REPUBLIC
OF SOUTH AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE
NO: 2012/47100
NOT
REPORTABLE
NOT
ON INTEREST TO OTHER JUDGES
DATE:
27 MARCH 2014
In
the matter between:
D.
S. D.
Applicant
and
D.
D. C.
Respondent
JUDGEMENT
SIWENDU
AJ
[1]
The applicant brings an application for the variation of a Settlement
Agreement which had been made an order of court on 31
March 2008
relating to two minor children of the marriage born in [……].
(“The Settlement Agreement”).
When the matter came before
me on the 10 March 2013; I reserved judgment to enable me to consider
contents of the family advocate's
report which were made available to
the court only at the hearing of the matter. The matter had been
adjourned on 28 January 2013
to 10 March in order to procure the
family advocate's report. The respondent was advised that the
postponement would be a final
postponement and was given an
opportunity to seek legal representation. She failed to appear at the
hearing.
[2]
The applicant seeks an order in the following terms:
1
That the Settlement Agreement which was made an order of court on
31March 2008 by Her Ladyship Ms
Justice Hechter under case number
6572/2008 be varied by deleting the whole of paragraph 2 thereof and
by substituting it with
the following :-
2
PARENTAL RIGHTS AND RESPONSIBILITES AND PRIMARY RESIDENCY TO THE
MINOR CHILDREN
2.1 The plaintiff
shall have full parental rights and responsibility over the two minor
children.
2.2 The primary
residency of the minor children shall vest with the plaintiff.
3
That the respondent be ordered to do all things necessary and take
all reasonable steps to facilitate
the applicant obtaining his own
medical aid within 30 (THIRTY) days from the granting of this order,
failing which the Sheriff
or his duly authorized and appointed agent
be authorized to do all things necessary and take all reasonable
steps to effect same
on behalf of the respondent;
4
That the respondent be ordered to pay the costs of this application,
only in the event of opposition;
5
Further and/or alternative relief.
[3]
At the hearing the applicant abandoned the prayer relative to the
medical aid. It is noted that reference to “plaintiff”
in
the Notice of Motion dated 22 July 2013 is erroneous. The correct
reference should have been the “defendant” now
the
applicant in these proceedings. The “plaintiff” is the
respondent in the current proceedings.
[4]
The divorce proceedings which led to the Settlement Agreement had
been instituted in the then Central Divorce Court Johannesburg
under
Case No. 6572/06. Clause 2 of the Settlement Agreement provides that:
(a)
Both parties shall have joint custody of the two minor children;
(b)
The defendant (applicant) shall exercise daily control over the minor
children;
(c)
The minor children shall reside with the defendant (applicant) at all
times.
[5]
Over and above the settlement provisions relating to joint custody,
the respondent (then plaintiff) in the
court aquo
was granted
the right of access and contact which was subject to, amongst others
that:
(a)
It was exercised at reasonable times;
(b)
Subject to educational, recreational and cultural activities of the
minor children;
(c)
In the presence of a responsible person and which was to be reviewed
in six months.
[6]
The grounds for the variation of the Settlement Agreement are
detailed in the applicant's application papers. One of the minor
children was diagnosed with partial hydrocephaly and a shunt had to
be inserted into his brain. It is alleged that post-natal,
the
respondent's personality dramatically changed and she subsequently
filed for divorce.
[7]
The two reports which will be dealt with below, detail a
deterioration in the respondent's health and mental health which may
have been either precipitated by drug addiction or compounded by it.
It is alleged in the application papers and confirmed in the
report
(Van der Walt ) that:
(a)
The respondent had sporadic contact with the minor children;
(b)
She had taken the children to shopping centers to beg for money from
strangers;
(c)
She had exhibited abusive behaviour towards the applicant extending
this to the children
and the children's school principal and
teachers.
(d)
She had attended at the school while under the influence of alcohol
and /or medication causing
her to be escorted out of the school for
abusive behaviour.
[8]
I am mindful that the respondent has not countered the claims made
against her, save for concessions made to the Family Advocate
that
she had been negligent relative to the intake of Epileptin, Lamitol
and Stilnox in the past.
[9]
I have already alluded to the two reports relative to the matter
presented to the court dealing with the circumstances of the
two
minor children. The first report is by Mariska van der Walt dated 19
March 2012. She is an expert procured by the applicant.
The second
report is by Frederick Jacobus Vogel assisted by Vijay Naidoo of the
Family Advocate. The latter is a registered Social
Worker appointed
in terms of Section 3(1) of the Mediation in Certain Divorce Matters
Act 24 of 1987.
[10]
The Van Der Walt Report flows from an assessment that occurred over a
period from 28 January 2012 to 25 February 2012. Both
the respondent
and the applicant participated in the process of assessment. It
confirms that the respondent became addicted (to
drugs) and attended
rehabilitation as well as family counseling and there had been no
progress in her health. The respondent is
reported to have no fixed
place of abode and has consistently moved from place to place. She
has been residing in a Wendy house
on the premises of a friend and
has been unemployed for a period. She receives a state disability
grant.
[11]
Insofar as the applicant is concerned, it points to a healthy,
well-adjusted, close, stable relationship focused on the children's
needs and emotional wellbeing on the one hand, while on the other to
an insecure attachment between the respondent and the children
which
is emotionally abusive and which directly impacts on the children's
sense of self-esteem.
[12]
The report recommends that full parental rights and responsibility be
granted to the applicant so as to provide the children
with a stable,
structured routine. It also recommends reasonable supervised contact
with the respondent (as provided in the Settlement
Agreement) as well
as parental guidance. A further recommendation is that the respondent
attends ongoing Bonding Therapy to help
re-define the parent child
relationship. The need for the children to have a close
relationship with their mother is highlighted
in the report albeit in
reality the mother is not sensitive to their emotional or physical
needs.
[13]
The Family Advocate's Report was completed on 24 July 2014. Both
applicant and respondent were interviewed towards the preparation
of
this report. It is noted that the respondent reported having suffered
a stroke in 2010, Ischemia and Trans-Ischemia seizures
with
intermittent short term memory loss and Post-Traumatic Stress
Syndrome (“PTSS”) albeit that she had not been treated
for the PTSS. She is not allowed to drive.
[14]
She is reported to have denied drug addiction but conceded having
acted negligently previously. She reports the contact with
the
children as "disgusting"(unsatisfactory) and being
frustrated by the applicant. Contact is reported to have deteriorated
to an extent that she saw the children twice in a month in 2013 and
speaks to them no more than once a week. She reports that if
it had
been clear that the applicant was actually applying for sole parental
rights, she would have opposed it.
[15]
Significantly the report states that the applicant is applying for
parental responsibility rights which he already has and
exercises. It
notes that the respondent's concerns with regard to her guardianship
being terminated are valid and not without merit
and should not be
terminated. There are other, less obtrusive recommendations that can
be made to remedy the situation without
resorting to termination of
all her or some of the respondent's parental responsibilities and
rights.
[16] The children were
interviewed by a social worker, Vijay Naidoo. The report notes
that the children do love the respondent.
The children expressed a
desire to maintain contact with their mother. In the case of the boy,
he is reported to prefer supervised
contact over weekends without
sleeping over at the respondent's
.
[17]
The full parental rights sought by the applicant would have entailed
all the rights in
Section 18
of the
Children's Act 38 of 2005
including those referred to in
Section 18(3)(c)
are granted to him.
It is trite law that the best interest of the minor children are of
paramount importance to secure their stability,
safety, physical and
emotional wellbeing. The "court has an unalienable right and
discretion to establish what is in the best
interest of the children
and to make corresponding orders to ensure that such interests are
effectively served and safe guarded".
Girdwood v Girdwood
1995 (4) SA 698
(C) – 708 J – 709 A; B v B
[2007] ZAGPHC 306
;
2008 (4) SA
535
(W) – 542 I – J
[18]
In determining what is in the best interest of the children the
criteria enunciated in
McCall v McCall
1994 (3) SA 201
(C) at 204
I and 205 A – F
remains valid and binding, namely that
regard must be had for:
(a)
the need for the love, affection and other emotional ties which exist
between the parent
and child and the parent's comfortability with the
child;
(b)
the capabilities, character and temperament of the parent and the
impact thereof on the
child's needs and desires.
(c)
the ability of the parent to communicate with the child and the
parent's insight into, understanding
of and sensitivity to the
child's feelings.
(d)
the capacity and disposition of the parent to give the child guidance
which he requires,
amongst others.
[19]
Based on the reports, it is clear that the respondent's current
circumstances point to a dire situation with no clear prognosis
on
whether her circumstances will improve or deteriorate in the near
future. Equally the common feature in both reports
points
to the undisputed need of the children to have contact with their
mother. This is not in dispute.
[20]
I now turn to the issue of parental rights sought to be varied and
referred to in
Section 18
of the
Children's Act. I
had invited
counsel for the applicant to address the court on the actual content
of the rights in this section, in particular,
whether the rights are
composite or divisible, include or exclude custodial rights sought to
be varied. No particular ("helpful")
submissions were made
in this regard, but the applicant was emphatic that they do not seek
to interfere with the respondent's right
of access to the minor
children. The future welfare of the minor children were the applicant
to demise was also raised as part
of the main consideration for the
application for full parental rights.
[21]
Section 18
which reads:
'...(1) a person may
have either full or specific parental responsibilities and rights
in respect of a child.
(2)
the parental responsibilities and rights that a person may have in
respect of a child, include the responsibility
and the right –
(a) to care for the
child;
(b)
to maintain contact with the child;
(c) to act as guardian
of the child; and
(d)
to contribute to the maintenance of the child.
(3)
subject to subsections (4) and (5), a parent or other person who acts
as guardian of a child must –
(a) administer and
safeguard the child's property and property interests;
(b) assist or
represent the child in administrative, contractual and other legal
matters; or
(c) give or refuse any
consent required by law in respect of the child, including –
(i) consent to the
child's marriage;
(ii) consent to the
child's adoption;
(iii) consent to the
child's departure or removal from the Republic;
(iv) consent to the
child's application for a passport; and
(v) consent to the
alienation or encumbrance of any immovable property of the child.
(4)
whenever more than one person has guardianship of a child, each one
of them is competent, subject to
subsection (5), any other law or any
order of a competent court to the contrary, to exercise independently
and without the consent
of the other any right or responsibility
arising from such guardianship.
(5)
unless a competent court orders otherwise, the consent of all the
persons that have guardianship of
a child is necessary in respect of
matters set out in subsection (3)…'
[22]
Nevertheless, on the examination of these provisions, it is clear
that a person may either have full or specific parental
responsibilities and rights in respect of a child. It is clear that
the applicant has and already exercises the rights in
Section 18(2)
relative to the minor children including the components of the rights
of guardianship referred to in
Section 18(2)(c)
and has done so since
2008. It is not clear however whether or not the applicant would have
exercised the rights in
Section 18(3)(a)
and (b). The content of the
right in these provisions relative to the rights of guardianship in
Section 18(2)(c)
was not argued.
[23]
These
Section 18(3)(a)
and (b) rights seem integral to the common law
right and duty of guardianship insofar as guardianship relates to the
legal duty
and capacity to assist the minor children in
juristic acts. It is my considered view that the common law term of
"custody"
in its wide sense incorporates this right to
guardianship.
[24]
The Settlement Agreement granted joint custody to the parties. The
effect is that the applicant is required to seek the respondent's
consent in all juristic matters pertaining to the children, in
particular those rights in
Sections 18(2)(c)
and
Section
18(3)(a)
,(b)and(c) of the Children’s Act. This could extend to
those matters pertaining to the minor children’s schooling,
medical
treatment and associated consents. Notwithstanding that the
particular areas were not were not fully canvassed in the applicant's
submissions, an untenable situation to the prejudice of the minor
children would arise if the applicant were required to seek the
respondent’s consent on such matters and it would not be in the
best interest of the minor children.
[25]
Having considered the facts of this case, I am loathed to deprive the
respondent all of her parental rights solely on the grounds
advanced
in argument some of which seem to be based on convenience and
conjecture. No compelling case was presented to
warrant a
total deprivation of the respondent’s parental rights. If I
were to do so, it would mean that the applicant could
singularly
immigrate with the children for example without reference to the
respondent. I find favour with this aspect of the recommendation
expressed by the Family Advocate. Terminating the respondent's
parental rights
in toto
ought to be a remedy of last resort.
Section 18(1)
is clear that parental rights may or may not vest in a
single person or parent. The rights are divisible, but care should be
taken
that this is not done in a way that renders them impractical to
exercise or in a way that affects the best interest of the children
involved.
[26]
Notwithstanding, the special circumstances of this case borne out by
the current life circumstances of the respondent, namely
that she has
no fixed place abode of her own as well the circumstances relating to
her health and mental health, warrant a curtailment
of her parental
rights in the interest of certainty and stability in the life of the
minor children. As the primary care
giver, the applicant must
be placed in a position to fully discharge all the duties necessary
and ancillary to the day to day parenting
of the minor children. In
the circumstances, I have determined that it is in the best interest
of the minor children that the Settlement
Agreement be varied but
without depriving the respondent all of her parental rights.
[27]
In the result I make the following order.
[28]
It is ordered that the Settlement Agreement which was made an order
of Court on 31 March 2008 under case number 6572/2008 be
varied by
deleting the whole of paragraph 2 and substituting it with the
following:
''
PARENTAL RIGHTS AND
RESPONSIBILITIES AND PRIMARY RESIDENCY (TO/OF) THE MINOR CHILDREN
:
(a)
Both the plaintiff and defendant are co-holders of parental rights
and responsibilities
over the two minor children;
(b)
The primary residency of the children shall vest with the defendant;
(c)
The plaintiff's parental rights shall be limited so that the
defendant shall have the final
decision making authority with regards
to:-
i.
The day to day lives, activities, living arrangements
schooling and
education, medical care, social and religious practices of the minor
children.
ii.
The responsibility and rights in
Sections 18(3)(a)
and
18
(3)(b),
excluding the rights in
section 18(3)(c)
in the
Children's Act 2005
iii.
The rights in
Section 18(3)(c)
shall be exercised jointly by the
plaintiff and defendant”.
(d) It is ordered
further that to the extent that the current circumstances of the
respondent prevail, the applicant may make
a testamentary appointment
of a primary care giver who shall exercise the same rights currently
enjoyed by the applicant in the
event of the applicant’s death.
(e) The respondent
was not present at the final hearing to oppose the application. She
is clearly impecunious. The matter
involves the best interest of the
minor children. In those circumstances it will be unfair to mulet her
with costs.
(f) Each
party shall pay their own costs.
_____________________________
SIWENDU
AJ
JUDGE
OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
APPEARANCES:
For
Applicant:
Adv. S van Aswegen
Instructed
by:
Lindie Lombaard Attorneys
For
Respondent:
In
Person (Absent)
Hearing
date:
11 March
2014
Judgment
date:
27 March 2014