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[2016] ZAGPJHC 102
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P v P (34959/2015) [2016] ZAGPJHC 102 (13 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 34959/2015
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
L.
P.
Applicant
And
J. C.
P.
First Respondent
JUDGMENT
RATSHIBVUMO
AJ
:
1.
Introduction:
This is an application whereby the
applicant seeks an appointment of Advocate M Feinstein as curator
ad
litem
of J. D. P.
(the child), a minor boy, born on [.......] 2008. The Applicant is
the mother of the child. The child’s primary
residence was
awarded to the Respondent by this court on 07 December 2010. The said
court order was made pursuant to a settlement
agreement between the
Applicant and the Respondent. The Applicant’s primary aim in
applying for the appointment of a curator
ad
litem
is for her to
be able to bring a further application (referred to as Part B
application), for the primary residence to be awarded
to her. Part B
application is however not before the court at this stage and it will
be subject to a report and/or a recommendation
by the
curator
ad litem
. If
granted, the role of a curator would however not be limited to Part B
application as elaborated hereunder.
2.
Background
:
The Applicant and the Respondent met in December 2006 and later moved
in together. From their relationship, the child was born
as indicated
above. As the joy of falling in love is often accompanied by the two
hearts, chained in music of romance in the name
of love; breaking the
chains can always result in bruising the innocent hearts, whose only
fault was to fall in love. And so it
was that when that came to pass,
the Applicant walked out of the common home shared with the
Respondent together with the child,
never to return. The Applicant’s
heart, now freed from the chains of love that bound it to the
Respondent, found itself falling
for new love with D. O. From this
relationship, a baby girl named C. was born on [.....] 2010. Soon
thereafter, the Respondent
initiated court proceedings seeking an
order that would grant him primary residence of the child. Although
this was initially opposed
by the Applicant, she eventually signed a
settlement agreement that paved the way for a court order referred to
above.
3.
The child has been
residing with the Respondent since 2010 while the Applicant retained
reasonable access as agreed. Five years
is a long time so much that
personal circumstances of both parties have been evolving over this
period. The Applicant has moved
on to marry E. P. whereas the
Respondent married A. P.; who are their current partners – or
at least they were on the date
this application was heard. At the
same time, the child has developed characters that are displeasing to
both parents. It is common
cause that the child has a tendency of
throwing tantrums. It is further common cause that he took or kept
pictures of his naked
sister, C. in his cell phone. The Applicant
further alleges that the child has on several occasions stolen some
cash when visiting
her.
4.
The salient allegations
by the Applicant are that the undesirable characters that have since
developed in the child can be traced
to lack of parental guidance and
discipline. The Respondent does not dispute this but he puts the
blame on the Applicant. The blame
game between the Applicant and the
Respondent precede the birth of the child and has gone on unabated to
this day. Sadly, when
the child finds himself in the middle of the
warring bulls it may get to a point of affecting him negatively, if
it has not done
so already. The communication between the Applicant
and the Respondent often ends with unnecessary bitter exchanges
between them
as exhibited by the several
Whatsapp
messages between them. The creation of a
Whatsapp
group in which the Applicant, the Respondent and their spouses are
copied each time they communicate, does not seem to have eased
the
tensions.
5.
Failure to have a
meaningful conversation between the Applicant and the Respondent
impacts negatively on the wellbeing of the child.
When Respondent
took the child to a psychologist for treatment over his tantrums,
both parents were required to play a role as
recommended in a report
prepared by Ms. Du Plessis.
[1]
From the correspondence between the Applicant’s attorneys and
Ms. Du Plessis it is apparent that the Applicant was not involved;
but an impression was created to the psychologist by the Respondent
that she was.
[2]
Equally, when the Applicant requested that her time spent with the
child be increased, that request was met with threats by the
Respondent that he would only allow her supervised access to the
child.
[3]
The attempts by the Applicant to involve a Family Advocate in respect
of the best interests of the child in terms of sec 4 of the
Mediation
in Certain Divorce Matters Act 24 of 1987 were thwarted without any
alternative suggestion. That suggestion was however
ill-advised since
the said provision is only applicable to parties who are divorced or
in the process of divorcing – and
the parties to this
application were not married and as such never divorced.
6.
The applicable law:
The Constitution of the Republic of
South Africa provides that every child has a right to have a legal
practitioner assigned to
him or her by the state, and at state
expense, in civil proceedings affecting the child, if substantial
injustice would otherwise
result.
[4]
Legislation was enacted to give effect to this right in the
Children’s Act 38 of 2005 (the Children’s Act), which
provides,
“
every
child that is of such an age, maturity and stage of development as to
be able to participate in any matter concerning that
child has the
right to participate in an appropriate way and views expressed by the
child must be given due consideration.”
[5]
7.
This right was
confirmed by the Constitutional Court in
J
v National Director of Public Prosecutions and another (Childline
South Africa and others as amici curiae)
when
it emphasised the protection of this right
.
[6]
It appears as though this right found its way into our domestic law
from Article 12 of the Convention on the Rights of the Child,
[7]
which obliges State parties to ensure that a child who is capable of
forming his or her own views enjoys the right to express those
views
in matters affecting him or her and that those views should be given
due weight.
8.
In
Centre
for Child Law v The Governing Body of the Hoerskool Fochville
[8]
the Supreme Court of Appeal held that in all matters concerning
children – including any litigation concerning them –
their best interests are of paramount importance. Section 28(2) (of
the Constitution) must be interpreted so as to promote the
foundational values of human dignity, equality and freedom. The reach
of section 28(2) extends beyond those rights enumerated in
section
28(1): it creates a right that is independent of the other
rights specified in section 28(1). Section 28(2), read
with section
28(1), establishes a set of rights that courts are obliged to
enforce.
[9]
9.
Sec 7
of the Children’s
Act sets
inter alia
the following as the standard for the best interests of the child:
“
Whenever
a provision of this Act requires the best interests of the child
standard to be applied, the following factors must be
taken into
consideration where relevant, namely -
(a)
the nature of the personal relationship between
the child and the parents, or any specific parent; and […];
the attitude
of the parents, or any specific parent, towards –
and the exercise of parental responsibilities and rights in respect
of
the child […]
(d)
the likely effect on the child of any change in the child’s
circumstances, including the likely effect on the child of
any
separation from -
(i)
both or either of the parents; or
(ii)
any brother or sister or other child, or any other care-giver or
person, with whom the child has been living;
(e)
the practical difficulty and expense of a child having contact with
the parents, or any specific parent, and whether that difficulty
or
expense will substantially affect the child’s right to maintain
personal relations and direct contact with the parents,
or any
specific parent, on a regular basis;
(f) the need for the child -
to maintain a connection with his or her
family, extended family,
culture or tradition;
(g)
the child’s - age, maturity and stage of
development […]
(h)
the child’s physical and emotional security and his or her
intellectual, emotional, social and cultural development […]
(k)
the need for a child to be brought up within a stable family
environment and, where this is not possible, in an environment
resembling as closely as possible a caring family environment;
(l)
the need to protect the child from any physical or psychological
harm…”
10.
The role of a
curator is different from that of a legal representative. A legal
representative appointed to represent the child
takes instructions
from the child as a client and represent the child’s views.
[10]
This should be distinguished from a curator
ad
litem
who assists
the court and the child by advancing the child’s best
interests.
[11]
11.
I now turn to
consider if the best interests of the child require the appointment
of a curator
in
casu
. It is
necessary to take note that this is not an application for the
variation of the court order that contains a provision for
the
primary residence of the child and access by both parents. Should
Part B application be proceeded with, the court would then
be faced
with an application for the variation. The Respondent is opposed to
the appointment of the curator because there is an
existing order
which should be left as it is. The reason for this submission is that
the Applicant did not demonstrate the change
in circumstances or a
good cause for the order to be revisited. This submission however
misses the subject before the court as
it attempts to deal with Part
B application which is not before the court. This view implies that
since there is a court order,
the door is shut for any consideration
for a variation. Counsel for the Respondent rightly conceded that
this would be a wrong
approach; for the order can always be
reconsidered for variation. Unfortunately no alternative is suggested
as to how that process
can be set in motion.
12.
Five years is a long
time to pass without any consideration on whether the circumstances
that prevailed in 2010 still exist today,
especially given the fact
that the child was only 2 years old then. The appointment of a
curator needs not be interpreted as implying
the variation of the
2010 court order. It is a step that allows the child to have a voice
on any possible reconsideration of the
order and any other litigation
that involves or affects him. The courts have been approached several
times in respect of this child
including when the order was made in
2010. Recently, the Maintenance Court was also approached by the
Respondent on 29 June 2015
for a maintenance claim against the
Applicant. Given the battles that have always marred the
communication between the Applicant
and the Respondent, chances of
the child being caught in-between and to have his voice drowned are
very real. With no curator appointed,
the court will always be deaf
to his cries.
13.
The Court is therefore
satisfied that it would be in the best interests of the child to have
a curator
ad litem
appointed to act on his behalf.
14.
For the reasons stated
above, the following order is made:
14.1That
Advocate M Feinstein of the Johannesburg Society of Advocates is
appointed as curator
ad
litem
of the child.
14.2That
as
curator ad litem
of the child, Advocate M Feinstein is authorised and empowered:
14.2.1
To always act and do
anything that a curator is expected to do on behalf of the child,
whenever there is litigation between the
Applicant and the Respondent
that involves or affects him or his interests.
14.2.2
To determine the
child’s best interests from time to time in relation to the
application that may be brought by the Applicant
and/or the
Respondent,
viz-a-viz
,
primary residence, care and contact.
14.2.3
To investigate the
child’s living circumstances insofar as they relate or may
relate to the present and future care and contact
arrangements,
including primary residence.
14.2.4
To interview the
applicant and respondent and any other person or official who has any
relevant information pertaining to the present
care and contact
arrangements, including primary residence, of the child.
14.2.5
To have unrestricted
access to the child.
14.2.6
To have access to
any and all documentation or records (including official
documentation or records) that directly or indirectly
pertains to the
present care and contact arrangements including primary residence, of
the child.
14.2.7
To engage any
professional person who has the necessary expertise to assist in the
determination of the child’s best interest
as they pertain to
the present arrangements regarding care and contact, including
primary residence. The person may include a psychologist,
psychiatrist, and/or a social worker.
14.3To
act as the child’s legal representative in any legal process
that is or may be instituted that relates to him, including
but not
limited to possible application relating to his care, contact, and
primary residence.
14.4To
approach, on notice to both the Applicant and the Respondent, a JUDGE
in chambers of this DIVISION for an order clarifying
and/or expanding
upon any power necessary in order to promote and protect the child’s
best interests.
14.5That
Advocate M Feinstein is directed to compile a report in respect of
the care, contact and primary residence of the child
with this Court
within SIXTY (60) days from date of this order or as soon thereafter
as directed by this Court.
14.6
That both the Applicant and
Respondent shall be jointly liable, in equal shares, for the costs of
any expert engaged by the
curatrix
ad litem
, provided
that such an engagement shall take place in consultation with them.
Such costs to be paid within 30 (THIRTY) days of
date of invoice or
any such period granted by
the
curatrix ad litem
after consultation with all the parties.
14.7Court
makes no order as to costs.
_____________________
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date
Heard:
03 May 2016
Judgment
Delivered:
13 May 2016
For the
Applicant:
Adv. R
Morgan Courtenay
Instructed
by:
DR Wooley Attorneys
Johannesburg
For the
Respondent:
Adv. CB Garvey
Instructed
by:
Leeuwner Maritz Attorneys
Johannesburg
[1]
See Annexure B (p. 106 of the bundle).
[2]
See LP 3 & LP 4 (p. 212 & 216)
[3]
See LP 5 B (p. 60), being a letter from the
Respondent’s attorney.
[4]
See sec 28 (1) (h) of Act 108 of 1996.
[5]
See sec 10 of Children’s Act.
[6]
2014 (7) BCLR 764
(CC) at para 40.
See
also
Justice Alliance of South Africa
and another v Minister of Social Development, Western Cape and
Others
[2015] 4 All SA 467
(WCC) at
para 32.
[7]
November 20, 1989, 1577 UNTS 3; 28 ILM 1456
(1989),
[8]
[2015] 4 All SA 571
(SCA) at para 24.
[9]
Section 28 (2) provides, “
A
child’s best interests are of paramount importance in every
matter concerning the child.”
[10]
Legal Aid v R
2009
(2) SA 262 (D).
[11]
See
Du Plessis N.O.
v Strauss
1988 (2) SA 105
(A) at p
146B.