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[2015] ZAGPJHC 183
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R and Another v M (42335/2014) [2015] ZAGPJHC 183; [2015] 4 All SA 280 (GJ); 2016 (3) SA 417 (GJ) (13 August 2015)
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Certain
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 42335/2014
DATE: 13 AUGUST 2015
In the matter between:
[R…….], [B…….]
[R…..]
[M…..]
...................................................................................
First
Applicant
[R……..],
[S…….]
........................................................................................................
Second
Applicant
And
[M…….], [T……]
[O…..]
......................................................................................................
Respondent
In re:
[L…….] [R…….]
JUDGMENT
KATHREE - SETILOANE J
:
[1] As will become clear during the course of the judgment, this
matter is unusual in more than one way. Mr [B……]
[R……]
and Mrs [S……..] [R……] (“the first
and second applicants”) seek an order,
inter alia, declaring
that the first applicant is the biological father of the minor child,
[L……] [R……],
who was born on 18 April
2005
(“Leago”)
, and is currently 10 years old.
They also seek an order varying the interim order, which was granted
by Tsoka J in a Rule 43 application
on 4 September 2013 under case
21697/2013.
[1]
[2] The respondent, Mr [T…….] [O…….].
[M……] (“the respondent”) and the second
applicant married each other in terms of customary law, as envisaged
by the
Recognition of Customary Marriages Act 120 of 1998
, on 21
March 2004. Two daughters were born of their marriage: [L……],
who was born on 18 November 1993 and is now
a major and Leago, who
was born on 18 April 2005 and is currently 10 years old. On 1 August
2008, when [L……] was
three years old the relationship
between the respondent and the second applicant ended as she vacated
the communal home. They have
lived apart since 1 August 2008.
[3] Seemingly unaware that their customary marriage was recognized as
legal, the second applicant and the respondent married other
partners
subsequent to their separation – the respondent married his
current wife first by customary union and thereafter
by civil law in
2013 and was blessed with a baby daughter, and the second applicant
married the first applicant by customary union
on 8 September 2012,
and thereafter by civil law on 15 January 2014. On being advised that
he had to file for divorce, the respondent
instituted a divorce
action against the second applicant on 20 June 2013. In his
particulars of claim, the respondent attributes
the break-down of his
relationship with the second applicant to the extra-marital
relationship which she had with the first applicant.
He alleges that:
‘
7. The marriage between
the parties has irretrievably broken down and the marriage
relationship between them has reached such a
stage of disintegration
that there is no reasonable prospect of restoring a normal marriage
relationship between them in that;
…
7.3 The Defendant committed
adultery at times and places at present to the Plaintiff unknown,
with another man a certain [B……],
during the greater
part of the marriage and claims that she has born him the child of
the marriage,[L……], who the
Plaintiff has raised as his
own child.
7.4 The Defendant was secretive
about her relationship with [B…..] and led a double life with
[B…….] on the
one hand and Plaintiff on the other.’
[4] In addition, the respondent alleges that it would be in the best
interests of L….. that: (a) the parties retain full
parental
rights and responsibilities in respect of L…….. in
terms of
s 18
of the Children’s Act 38 of 2005 (“the
Children’s Act”); (b) the parties shall have shared
residency of
L……; and (c) each party shall have contact
with L…… in the terms as sought in prayers 4.1 to 4.7
of
the particulars of claim. The second applicant defends the divorce
action and pleads that L……. was born on 18 April
2005
of the relationship between herself and the first applicant, B…….
R…….. She disputes that it would
be in the best
interests of L…… that the parties shall retain full
parental rights and responsibilities in respect
of L…….
in terms of
s 18
of the Children’s Act; that they shall have
shared residency of L…….; and that each of them will
have contact
with L……. in the terms sought by the
respondent in prayers 4.1 to 4.7 of the particulars of claim.
[5] On 20 June 2013 the respondent also instituted
Rule 43
proceedings against the second applicant in which he sought contact
to L…... The second applicant counter-claimed seeking
maintenance for L….. On 4 September 2013 Tsoka J granted an
order in terms of which the respondent was awarded interim contact
to
L…… on certain specified terms and the second applicant
was granted interim maintenance for L…….
The respondent
brought the
Rule 43
application on the basis that the parties were
married; that he was the biological father of L……. and
had full parental
responsibilities and rights in respect of L…….
This was not disputed by the second applicant and Tsoka J awarded
care and guardianship jointly to the respondent and the second
applicant.
[6] Notwithstanding the order granted by Tsoka J, the applicants
allege in the founding affidavit that from the time the respondent
moved out of the shared home in 2008 until the
Rule 43
proceedings in
2013, the respondent failed to maintain and have contact with L……,
and that since 2008, the first
applicant has been supporting L……
in that he provided for her everyday needs, paid for her schools
fees, retained
her on his medical aid and attended her school
activities. In addition, they contend that in actual fact, the second
applicant
and L….. have been residing with the first applicant
and since July 2011 L…….. regards the first applicant
as a father figure. They also contend that notwithstanding the
interim maintenance order made in terms of
Rule 43
, the respondent
has neglected to fulfill the obligations stipulated in the interim
court order and sometimes fails to contact L…….
as
arranged.
[7] The respondent opposes this application on the grounds that:
(a) the second applicant did not dispute L……’s
paternity in the
Rule 43
application;
(b) by virtue of the legal presumption
pater est quem nuptiae
demonstrant
L……… is deemed to be his
child as she was born during his marriage to the second applicant;
and
(c)
L…….’s paternity is a matter to be decided in the
pending divorce action.
[8] The applicants contend that they did not dispute the respondent’s
paternity of L…… in the
Rule 43
application, as they
were not aware at that stage that the first applicant is the
biological father of L…... The respondent,
however, insists
that until the contrary is proved, L……. is deemed to be
his child by virtue of being born during
the subsistence of the
marriage between him and the second applicant. During September
2013, and after the interim order
in the
Rule 43
application was
granted by Tsoka J, the first applicant suspected that because L…..
strongly resembled him, he may be her
father. The first and second
applicants together with L…… submitted to paternity
tests at Unistel Medical Laboratories
(Pty) Ltd. On 3 October
2013, the results confirmed that “All fifteen (15) markers are
compatible with parentage. Paternity
of individual 1 (MR B R M R…….,
ID 7……….) is confirmed with a high degree of
certainty)”
[9] Although the respondent does not deny that the results of the
paternity test establish that the first applicant is the biological
father of L…... he contends in his answering affidavit that:
‘
The paternity tests were
belatedly done during the course of our marriage and it was done
without my knowledge or consent. I would
not have consented to a
paternity test because I do not believe that this would be in the
best interests of L……..’
The applicants contend that since there is no longer a dispute of
fact in relation to the first applicant’s paternity of
L……
as he has rebutted the legal presumption relied upon by the
respondent by undergoing a paternity test the results
of which
establish him to be L……’s biological father, it
is incumbent upon the court in these proceedings to
grant them the
relief sought in the notice of motion as it is not in the best
interest of L…… that the issue of paternity
should
stand over for determination by the divorce court in a few months
from now.
[10] L…….. was born
stante matrimonio
and there
is thus a legal presumption (
pater est quem nuptiae
demonstrant
[2]
)
that the respondent is the father of L…….. Paternity
can of course be established on a balance of probabilities
[3]
.
Until then, the child is regarded as ‘a child born of married
parents’ and the husband will, together with the mother,
have
parental power or parental responsibilities and rights over the child
concerned. Therefore, as things currently stand, the
respondent is
regarded by law as the father of L…….
Section 37
of the
Children’s Act provides that:
‘
if a party to any legal
proceedings in which the paternity of a child has been placed in
issue has refused to submit himself or
herself, or the child, to the
taking of a blood sample in order to carry out scientific tests
relating to the paternity of the
child, the court must warn such
party of the effect which such refusal might have on the credibility
of that party.’
In
YM v LB
[4]
the SCA held that in cases of disputed paternity, scientific testing
such as blood or DNA testing should not be ordered where
paternity
has been shown on a balance of probabilities. However, the SCA went
onto hold that:
“
No
doubt there are cases where there is genuine uncertainty as to
paternity and a DNA test should be ordered for the child in question.
It is within the inherent power of a court, as the upper guardian of
children, to order scientific tests if it is in the best interests
of
a child, as Murphy J found [in
LB
v YD
2009 (5) SA 463
(GNP) para 22]. And indeed
s 37
of the Children’s Act
anticipates the use of scientific tests to determine paternity. It
provides that, where paternity is
in issue in legal proceedings and a
party refuses to submit to ‘scientific tests’, the court
must warn him or her of
the ‘effect which such refusal might
have on the credibility of that party’. But this is not a case
in which the inherent
power need have been invoked, given that
paternity was not disputed.’
[5]
[11] The respondent concedes in his answering affidavit that he was
invited by the applicants to submit to a paternity test, but
declined
to do so and is “perfectly content to have the court deal with
[his] refusal and maybe also [his] credibility.”
It bears
mention that the respondent has not, at this stage, been warned by a
court of the “effect which such refusal might
have on his
credibility”. It is not appropriate, in my view, for this Court
in these proceedings to warn the respondent of
the effect which his
refusal might have on his credibility, as that is the function of the
divorce court in the pending divorce
action, where the respondent’s
paternity of L……. is disputed. No credibility finding
can, therefore, be made
against the respondent in these application
proceedings.
[12] The first applicant claims, by virtue of the results of the
paternity tests, that he is the biological father of L….
and
that he has taken parental responsibility in respect of her. The
respondent also asserts that he has parental rights and
responsibilities
in respect of L…… and has raised her
as his own child. The second applicant and the respondent take issue
with one
another over these issues. Peculiarly, however, despite
disputing the respondent’s paternity of L…… and
his
parental rights and responsibilities over her in the divorce
proceedings, the second applicant did not dispute these aspects in
the
Rule 43
application. Thus, pending finalization of the divorce
proceedings between the second applicant and the respondent, Tsoka J
granted
them joint parental rights and responsibilities with regard
to the care of L…. as well as joint guardianship. The first
applicant is not a party to the divorce proceedings and was not a
party to the
Rule 43
application. This notwithstanding, the
applicants seek a declarator that the first applicant is a co-holder
of full parental responsibilities
and rights in respect of L……
together with the second applicant as provided for in
s 18(2)
(a) -
(d) of the Children’s Act, and that the both of them have sole
parental responsibility of maintenance in respect of
L……,
to the exclusion of the respondent.
[13] It is contended on behalf of the respondent that the
determination of the issue of the respondent’s paternity of
L…….,
and his parental responsibilities and rights over
her, is the function of the divorce court in the pending divorce
proceedings,
as the second applicant and the respondent take issue
with one another over these issues in the divorce action. The
applicants
quite clearly launched the present application well
knowing that these issues have been raised and are disputed in the
divorce
action. The first applicant has, however, not intervened in
the divorce proceedings and it is at best questionable whether he can
obtain relief in these proceedings where, as indicated, the primary
issues for determination are integral to the finalization of
the
pending divorce action.
[14] The respondent also contends that because the relief sought by
the applicants in these proceedings will impact negatively
upon his
parental rights and responsibilities in respect of L…….,
he is entitled to present oral evidence to the
court in the pending
divorce action on his relationship with L……., his
contribution to her upbringing and his commitment
to her as a parent.
Significantly, in this regard,
s 20
of the Children’s Act
provides:
‘
The biological father of
a child has full parental responsibilities and rights in respect of a
child
–
(a)
if he is married to the
child’s mother; or
(b)
if he was married to the
child’s mother at –
(i)
the time of the child’s
conception;
(ii)
the time of the child’s
birth; or
(iii)
any time between the
child’s conception and birth.’
Although
s 20
of the Children’s Act refers specifically to
‘biological fathers’ and may arguably be viewed as
‘qualifying
or even replacing’ the common law presumption
pater est quem nuptiae demonstrant
which applies to all
married fathers, I am of the view that this could not have been the
intention of the legislature, as not only
would this interpretation
be inconsistent with the common law presumption referred to above,
but it would also imply that married
fathers would first have to
prove biological paternity before they could acquire parental
responsibilities and rights in terms
of the section. The logical
corollary of this is that all mothers too, would have to prove
biological maternity before they can
acquire parental
responsibilities and rights in terms of
s 19
[6]
of the Children’s Act, as that section also refers specifically
to “biological” mothers
[7]
.
Thus on a proper reading,
s 20
of the Children’s Act must
be interpreted as conferring parental responsibilities and rights to
married fathers from the
moment of the birth of the child. In other
words, a married father will automatically have parental
responsibilities and rights
over a child, born during the marriage,
from the moment of his or her birth – and would not have to
prove biological paternity
first.
[15] In contrast,
s 21
of the Children’s Act makes provision
for a biological father who does not have parental responsibilities
and rights in respect
of a child, in terms of
s 20
, to acquire full
parental responsibilities and rights in respect of that child
[8]
if, at the time of the child’s birth, he is living with
the mother in a permanent life-partnership
[9]
or if regardless of whether he has lived or is living with the mother
–
(i)
he consents to be identified or successfully applies in terms of
s 26
to be identified as the child’s father or pays damages in
terms of customary law;
(ii)
he contributes or has attempted in good faith to contribute to the
child’s upbringing for a reasonable period; and
(iii)
he contributes or has attempted in good faith to contribute towards
expenses in connection with the maintenance of the child
for a
reasonable period
[10]
.
Thus, unlike an unmarried father who must show that he contributes or
attempted in good faith to contribute to the child’s
upbringing
and expenses in order to attain parental responsibilities and rights
in terms of
s 21(1)
(b) of the Children’s Act, a married father
is not required to contribute to the upbringing and expenses of his
child in
order to attain parental rights and responsibilities in
terms of
s 20
of the Children’s Act.
[11]
[16] As is apparent from the notice of motion, the applicants seek a
declaratory order that the first applicant is the father of
L…….;
that the first and second applicants be accorded full parental rights
and responsibilities in respect of L……;
and that the
applicants are the sole holders of the parental responsibility of
maintenance in respect of L…….. They
also seek an order
varying the respondent’s contact to L……. All of
these issues have been put into issue in
the pending divorce action
and are, therefore, central to its finalization. A court will not
grant a decree of divorce until it
is satisfied that all issues
relating to minor or dependent children, who are born of the
marriage, are resolved in their best
interests. The best interests of
the child standard, as prescribed in
s 28(2)
of our Constitution,
determines the outcome of all legal proceedings concerning a
child
[12]
.
In respect to the position of minor or dependent children of a
divorcing couple, in particular, it is the primary consideration
or
standard by which to assess the position of the minor or dependent
children on divorce.
[17] Since the
Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd
[13]
our courts have consistently held, on grounds of public policy, that
motion proceedings are not permissible in matrimonial causes
since it
is undesirable for a court to grant a divorce without hearing oral
evidence of the parties, first because not only is
the status of the
parties themselves involved, but also those of children, and second
because of the interests of the State in
the preservation of the
binding nature of marriage
[14]
.
The question of paternity of L…..and the rights and
responsibilities of the parties in respect of L…….. are
raised in the divorce action and are as such integral to the
matrimonial cause between the second applicant and the respondent.
As affirmed in
Ex Parte Inkley and Inkley
[15]
:
‘
The values and attitudes
of the community have not, however, changed in regard to the
importance of maintaining healthy marriage
relationships. It is
still, in my view, characterized by a reluctance to see a marriage
dissolved without proper consideration
being given to all the
relevant facts and circumstances. And for this to be done, the judge
must be given the opportunity to consider
and evaluate the relevant
evidence at a hearing which must be commenced by action.’
[18] A court rarely grants a divorce without having had the
opportunity to hear the evidence of at least one of the parties in
a
divorce action, particularly if there are minor or dependent children
involved. It is essential, therefore, that the parties
to a contested
divorce action be given the opportunity to testify and put evidence
before the divorce court on the issues that
are raised for
determination in the divorce action. Where the paternity and parental
rights and responsibilities of a husband are
in dispute in divorce
proceedings, then it is important that he be given the opportunity to
present evidence in the divorce action
for consideration and
evaluation by the judge presiding therein. In terms of
s 6(1)
of the
Divorce Act, 70 of 1979
, a decree of divorce may not be granted until
the court: (a) is satisfied that the arrangements made or
contemplated for
the welfare of any minor or dependent child of the
marriage are satisfactory or the best that can be achieved in the
circumstances
[16]
,
and (b) if the family advocate has instituted an enquiry in terms of
s 4(1)(a) or (2)(a) of the Mediation of Certain Divorce Matters
Act,
24 of 1987, the court has considered the report and recommendations
of the family advocate
[17]
.
In order to enable it to assess the arrangements regarding the
children of a divorcing couple,
s 6
of the
Divorce Act further
empowers the court to cause any investigation it deems necessary to
be carried out and to order any person to appear before it
[18]
.
The court may order the parties or any one of them to pay the costs
of the investigation and appearance
[19]
.
The court may furthermore appoint a legal practitioner (
curator ad
litem
) to represent a child at the divorce proceedings and, here
again, may order the parties to pay the costs of this
representation.
[20]
[21]
[19] The court, accordingly, has extremely wide powers in determining
what is in the best interests of the child in a divorce action.
As
articulated by this Court in
Terblanche v Terblanche
[22]
which concerned an application for interim custody in terms of Rule
43 of the Uniform Rules of Court, when a court sits as upper
guardian
in a matter:
‘
[I]t has extremely wide
powers in establishing what is in the best interests of minor or
dependent children. It is not bound by
procedural strictures or by
limitations of the evidence presented or contentions advanced by the
respective parties. It may in
fact have recourse to any source of
information, of whatever nature, which may be able to assist it in
resolving custody and related
disputes.’
Although the dicta referred to above related to a custody matter in
terms of Rule 43 of the Uniform Rules, it has direct application
to
the powers of a court in a divorce action as
s 1
of the
Divorce Act
defines
the term “divorce action” to mean:
‘an action by which a decree of divorce or other relief in
connection therewith is applied for, and includes−
(a)
an application
pendent lite
for an interdict or for the
interim custody of, or access to, a minor child of the marriage
concerned or for the payment of maintenance;
or
(b)
an application for a contribution towards the costs of such action or
to institute such action, or make such application,
in forma
pauperis
, or for the substituted service of process in, or the
edictual citation of a party to, such action or such application.’
[20] The applications which may permissibly be launched pending the
finalization of a divorce action are those that fall within
the
definition of the term “divorce action” in
s 1
of the
Divorce Act. Thus
, even though custody of, or access to, a
minor child of a divorcing couple is placed in dispute in the divorce
action, one or the
other parties to the action may launch an
application
pendent lite
for interim custody of, or access to,
the minor child. Similarly, where the payment of maintenance is
disputed in the divorce action,
one or the other parties may launch
an application
pendent lite
for interim maintenance. Where a
court grants the relief sought in an application for interim custody,
access and payment of maintenance
to a child born of the marriage,
the order remains interim in effect until finalized by a court in the
divorce action.
[21] It would follow, therefore, that where, as in the current case,
the issue of the respondent’s paternity and parental
rights and
responsibilities in respect of the minor child are placed in issue in
the divorce action, it would be inappropriate
for the parties to then
seek to resolve these issues in application proceedings that fall
outside those applications which may
permissibly be launched pending
finalization of a divorce action. Any attempt to do so in my view,
may validly be met with the
defense of
lis alibi pendens
. I
am, accordingly, of the view that except for those applications which
fall within the definition of “divorce action”
in
s 1
of
the
Divorce Act, it
is not appropriate for a party to attempt to
circumvent a pending divorce action by applying to have matters
(whether disputed
or not), which are raised in the divorce action
determined by a court in motion proceedings. Thus, any attempt
to pre-empt
the findings of a divorce court by the institution of
motion proceedings to deal with matters that are in issue in the
divorce
action and concern the parties to the divorce, will
effectively fetter the discretion of the judge, presiding in the
divorce matter,
to hear oral evidence, and to consider and evaluate
such evidence at the divorce trial.
[22] The respondent contends that in so far as the relief sought by
the applicants in this proceeding has as its objective the
termination of his parental responsibilities and rights over L……..,
such relief cannot be granted on motion proceedings,
as it will deny
him the opportunity to present oral evidence to the court on his
relationship with L……, the role
that he played in her
upbringing, his commitment to her as a parent etc. The applicants
argue against this contention on the basis
of
s 28
of the Children’s
Act, which provides for the termination, extension, suspension, or
restriction of parental rights and responsibilities
to be dealt with
in application proceedings.
Section 28
of the Children’s Act
provides:
‘
(1) a person referred to
in subsection (3) may apply to the High Court, a Divorce Court in a
divorce matter or a children’s
court for an order-
(a)
Suspending for a period,
or terminating any or all of the parental responsibilities and rights
which a specific person has in respect
of a child; or
(b)
Extending or
circumscribing the exercise by that person of any or all of the
parental responsibilities and rights which a specific
person has in
respect of a child.
(2) …
(3) An application for an order
referred to in subsection (1) may be brought-
(a) By a co-holder of parental
responsibilities and rights in respect of the child.
(b)
By any other person
having a sufficient interest in the care, protection, well-being or
development of the child;
(c)
…’
[23]
Section 29(1)
of the Children’s Act confers jurisdiction
on the High Court, divorce courts in divorce matters
[23]
and children’s courts, within whose area of jurisdiction the
child is ordinarily resident, to hear an application in terms
of
s 28
of the Children’s Act to suspend, terminate, extend or
circumscribe a person’s parental responsibilities and rights.
Locus standi
vests in: (a) every co-holder of parental
responsibilities and rights; (b) any person who can demonstrate a
sufficient interest
in the child’s ‘care, protection,
well-being or development’, (c) the child with leave of the
court; (d) any
other person acting in the child’s interest with
the leave of the court; or (d) a family advocate or the
representative of
any interested organ of state
[24]
.
When considering the application in terms of
s 28
of the Children’s
Act, the court is required to take into account: (a) the best
interests of the child; (b) the relationship
between the child and
the person whose parental responsibilities and rights are being
challenged; (c) the degree of commitment
that the person has shown
towards the child; and (d) any other fact that should, in the opinion
of the court, be taken into account
[25]
.
[24]
Section 29(3)
of the Children’s Act provides that a court
hearing an application in terms of
s 28
may grant the application
conditionally or on such conditions as it may determine, or may
refuse the application, but an application
may be granted only if it
is in the best interests of the child. The court is required to
also consider the general principles
laid out in Chapter 2 of the
Children’s Act, which encompasses the best interests of the
child principle
[26]
.
The child’s best interests are clearly the overriding
consideration in a
s 28
application to suspend, terminate, extend or
circumscribe a person’s parental rights and
responsibilities
[27]
.
[25] In terms of
s 29(5)
of the Children’s Act, the court may
for the purposes of a
s 28
hearing order that (a) a report and
recommendation of a family advocate, social worker or other suitably
qualified person must
be submitted to the court; (b) a matter
specified by the court must be investigated by a person designated by
the court; (c) a
person specified by the court must appear before it
to give or produce evidence; (d) the applicant or any party opposing
the application
may pay the costs of any such investigation or
appearance. In terms of
s 29(6)
(a) and (b) of the Children’s
Act, the court is afforded discretion to appoint a legal practitioner
to represent the child
at the court proceedings and order the parties
to the proceedings, or any one of them, or the state if substantial
injustice would
otherwise result, to pay the costs of such
representation.
[26]
Section 28
read with
s 29
of the Children’s Act quite
clearly provide for a person’s parental rights and
responsibilities to be suspended, terminated
or circumscribed by way
of application proceedings. But as is evident from the provisions of
s 29(5)
and (6), the powers conferred on a court in a
s 28
application broadly correspond to those that a court has in respect
of the divorce of a couple with minor or dependent children.
There
should, therefore, in principle be no objection to divesting a parent
of his or her parental responsibilities and rights
in application
proceedings, because a court which is seized with an application in
terms of
s 28
of the Children’s Act to suspend, terminate or
circumscribe a person’s parental responsibilities and rights,
has exactly
the same powers as a divorce court in terms of
s 6
of the
Divorce Act, which
seeks to protect the interests of minor and
dependent children in a divorce.
[27] However, as already pointed, where in pending divorce
proceedings the issue of parental responsibilities and rights of the
husband is disputed on the basis of his paternity, then it would be
both inappropriate and simply impermissible, in my view, to
launch a
separate and contemporaneous application under
s 28
of the Children’s
Act to resolve the issue of paternity and parental rights and
responsibilities of the husband. It is precisely
for this reason that
s 28
read with
s 29
of the Children’s Act confers
jurisdiction on a divorce court in a divorce matter to deal with the
question of suspending,
terminating, extending or circumscribing the
parental responsibilities and rights of a parent. Although use of the
term “a
divorce court in a divorce matter” in
s 28
of the
Children’s Act relates specifically to a regional divorce court
established in terms of s 10 of the Administration
Amendment Act, 9
of 1929, the same principle must, to my mind, apply to a High Court
in a divorce matter.
[28] Thus, where the issue of paternity and parental rights and
responsibilities are raised in a divorce action in the High Court,
then those issues should not be contemporaneously raised in
application proceedings – particularly in matters concerning
the minor or dependent children of a divorcing couple, because the
finding of a court in the application proceedings will fetter
the
discretion of the court in the divorce proceedings to hear, consider
and evaluate the relevant evidence concerning the child
− and
decide the issue in the best interests of the child. As indicated, a
court sitting in a divorce action may not grant
the divorce decree
until he or she is satisfied that any arrangements or contemplated
arrangements relating to the children of
the marriage are the best
possible in the circumstances, and are in their best interests.
[29] In the current matter, the applicants have attached to their
application papers a recommendation by the family advocate, Mrs
Kathwaroo, in relation to care and contact of L…., dated 3
September 2014, as well as a report by the Family Counselor,
LP
Ngwenya, dated 1 September 2014 relating to contact. They also attach
a report of Dr PM Duchen, a counseling psychologist, dated
12 May
2014. This report predates the institution of the divorce action as
well as the Rule 43 application by the respondent. It
is apparent
from the report of the counseling psychologist that the respondent
did not attend the interview with her and nor did
he attend joint
sessions with L……. The counseling psychologist notes in
the report that:
‘
No final recommendation
can be made in the matter as [the respondent] has not completed the
assessment. I am not in a position to
comment on important aspects
concerning the Best Interest of the Child Standard due to the fact
that my investigation is incomplete.
This aspect includes:
·
The nature of the
relationship between [the respondent] and L……;
·
[The respondent’s]
attitude toward parental responsibilities and rights;
·
[The respondent’s]
capacity to provide for the needs of L……, including her
emotional and intellectual needs;
·
L…….’s
views and wishes;
·
The nature of the
parental relationship between [the applicants] and [the respondent]’
In addition, the counseling psychologist notes that the respondent:
‘
[D]id not attend joint
sessions with L…... L…… was prepared for these
sessions and looked forward to it. L…….
has experienced
disappointment and feels extremely let down and by the fact that [the
respondent] cancelled such appointment. [The
respondent did not
reschedule and L…… has been left in a position of
uncertainty. These aspects could not be canvassed
with the respondent
as he did not complete the assessment.’
[30] As is apparent from the report of the counseling psychologist,
even if this court were inclined to determine the issues raised
in
these proceedings, there is insufficient evidence before me to
determine what is in the best interests of L…….
This
would, therefore, necessitate a referral of the issues for
determination to oral evidence. However, in view of the pending
divorce action, it would be neither appropriate nor efficacious to do
so. For this reason, I consider the divorce court in the
pending
divorce proceedings to be best placed, having heard the evidence of
the parties and any other persons it orders to appear
before it, to
decide the issues for determination in the best interests of the
minor child. It may, in this regard, exercise
its power to
order the counseling psychologist, referred to above, to interview
the minor child as well as both the first applicant
and the
respondent, and submit a revised report to the court. It may also
deem it necessary to order the counseling psychologist
to appear in
court to give evidence. It may, in addition, also deem it appropriate
to order the family advocate to produce a new
report. Since L…….
is ten years old and, as is apparent from the report of the family
counselor, clearly has views
of her own in relation to her
relationship with both the first applicant and the respondent, the
divorce court may deem it necessary
to order that she be represented
in the divorce action by a
curator ad litem
.
[31] The divorce court in the pending divorce action would be best
placed, having heard the relevant evidence to make a fair and
accurate assessment of what is in the best interests of L……
by inter alia, understanding:
(a) what the true nature of the respondent’s commitment to L……
is, and what his capacity is to act consistently
on a supposed firm
commitment to her;
(b) the quality of the respondent’s parental capacity and his
relationship with L……;
(c) the likely effect on Leago of any change in her circumstances
including the likely effect of being separated from the respondent
and the respondent’s other children;
(d) the factors that impact the second applicant’s need to
protect L…… from ongoing disappointment and upset;
and
(e) Understanding factors that can facilitate co-operation between
the adults involved in L……’s life.
[32] The paternity test results identify the first applicant as the
biological father of L……. He is now also married
to the
second applicant and has apparently been taking care of L…….
since she was 3 years old. This ought to enable
him, in terms of s
21(1) (b) of the Children’s Act to acquire full parental rights
and responsibilities in respect of L…….
Determining
whether the first applicant satisfies the requirements of s 21(1)(b)
of the Children’s Act for purposes
of acquiring full parental
responsibilities and rights is a factual enquiry, which the divorce
court is best placed to undertake
in the pending divorce action. The
first applicant is, however, not a party to the divorce proceedings.
It may, therefore, be necessary
for him be joined as a respondent in
the divorce action. In the circumstances, I deem it just and
appropriate to refer the issues
for determination in this application
to the divorce court for determination in the pending divorce action.
In view of the referral
to the divorce court, there is no need to
determine the applicant’s rule 43(6) application to vary the
order of Tsoka J in
the Rule 43 application.
[33] In the result, I make the following order:
(1) The issues
in this application are referred for determination to the divorce
court in the pending divorce action.
(2) I make no
order as to costs.
F KATHREE-SETILOANE
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Counsel for the Applicants: Ms N
Manaka
Instructed by: Fairbridges Wertheim
Becker
Counsel for Respondent: Ms K
Foulkes-Jones SC
Instructed by: Raymond Joffe and
Associates
Date of Hearing: 9 June 2015
Date of Judgment: 13 August 2015
[1]
The applicants seek the following relief in their
notice of motion:
‘
1. Declaring the First
Applicant to be the biological father of the minor child, [L…..]
[R…….]
2. Declaring the First
Applicant to be a co-holder of full parental responsibilities and
rights in respect of LEAGO together with
the Second Applicant, as
provided for in section 18(2)(a)-(d) of the Children’s Act, 38
of 2005.
3. Declaring that primary
residence of Leago be awarded to both First and Second Applicants.
4. Declaring the First and
Second Applicants to be the sole holders of parental responsibility
of maintenance in respect of LEAGO.
5. Varying the order of the
Honourable Judge Tsoka dated 4 September 2013 under case number
21697/2013 as follows:
5.1 by deletion of paragraph
1;
5.2 by deletion of paragraphs
3, 4, 5, 6, 7 and 8 and the substitution therefor of the following:
“
3 The Applicant shall
be entitled to exercise contact to Leago as follows:
3.1 Every alternative
Saturday from 10h00 to 17h00 during the school term;
3.2 One week, during long
school holidays and such week should not be the week during which
[L……s] birthday falls
provided Respondent shall
provide suitable accommodation for her while Leago resides with him.
3.3 The Applicant shall
collect and return [L……..] at the Respondents
residential address unless otherwise agreed
between the parties in
writing;
3.4 The Applicant shall
provide the Respondent with his address where [L…….]
shall be staying and his telephone
contact number before he removes
Leago in terms of this order to exercise his rights of contact.
4. That the contact
arrangements be reviewed annually by the Family Advocate and/or such
other experts as this Honourable Court
may deem appropriate having
regard to the best interests of [L…….] and her
.wishes.”
6. That the Respondent be
ordered to make payment of the costs of the application only in the
event of opposition.
7. Further and/or alternative
relief.’
[2]
The common law presumption
pater
est quem nuptiae demonstrant
deems a woman’s
husband to be the father of all children born during their marriage.
The presumed fact – paternity
– can be rebutted by
evidence that shows on a balance of probabilities that the husband
is not the father of a child.
[3]
In
YM v LB
2010 (6) SA 338
(SCA).
[4]
2010 (6) SA 338
(SCA) para 13
[5]
YM v LB
at para 13.
[6]
Section 19 of the Children’s Act provides:
(1)
The biological mother of
a child, whether married or unmarried, has full parental
responsibilities and rights in respect of the
child.
(2)
If
–
(a)
the biological mother of
a child is an unmarried child who does not have guardianship in
respect of the child; and
(b)
the biological father of
the child does not have guardianship in respect of the child, the
guardian of the child’s biological
mother is also the guardian
of the child.
(3)
This section does not
apply in respect of a child who is the subject of a surrogacy
agreement.’
[7]
CJ Davel and A Skelton, Commentary on the Children’s
Act, at pp 3-9
.
[8]
s 21(1) of the Children’s Act.
[9]
s 21(1) (a) of the Children’s Act.
[10]
s 21(1) (b) (i), (ii) and (iii) of the Children’s
Act.
[11]
KLVC v SDI
[2015] 1 All SA
532
(SCA) at para 20.
[12]
See also: s 7 of the Children’s Act, which sets
out the factors that must be taken into account whenever a provision
of
the Act requires the best interests of the child standard to be
applied.
[13]
1949 (3) SA 1155
(T) at 1161.
[14]
Room Hire
at 772 A-D;
Ex
Parte Inkley v Inkley
1995 (3) SA 528
;
Williams v Tunstall
1949 (3) SA 835
(T)
[15]
1995 (3) SA 528
para 536 E-H
[16]
s 6(1)
(a) of the
Divorce Act.
>
[17]
s 6(1)
(b) of the
Divorce Act.
>
[18]
s 6(2)
of the
Divorce Act.
>
[19]
s 6(2)
of the
Divorce Act.
>
[20]
s 6(4)
of the
Divorce Act.
>
[21]
Boberg’s Law of Person’s and the Family,
2
nd
Edition, at
pp 514-516.
[22]
1992 (1) SA 502
(W) at 504C-D.
[23]
In terms of
s 1
of the Children’s Act ‘divorce
court’ means the divorce court established in terms of s 10 of
the Administration
Amendment Act, 9 of 1929.
[24]
s 28(3)(a)–(e) of the Children’s Act.
[25]
s 28(4)(a)-(d) of the Children’s Act.
[26]
s 29(4) of the Children’s Act.
[27]
L Schafer,
Child Law in South
Africa: Domestic and International Perspectives
(2011) Lexis Nexis at pp 260-261