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[2016] ZAGPJHC 186
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Koekemoer v Du Plessis (23060/2016) [2016] ZAGPJHC 186 (13 July 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
23060
/2016
In
th
e matter between:
KOEKEMOER,
JUAN
.............................................................................................................
Applicant
And
DU
PLESSIS,
JEANICE
.......................................................................................................
Respondent
Judgment
Van
der Linde, J:
[1]
This is an urgent application for the
interim control and custody of a two year old girl who was born to
the applicant father and
the respondent mother on 25 February 2014
while they were barely beyond their teens. The applicant was about 24
and the respondent
20 years old. The order sought is interim, pending
an investigation and report by the family advocate.
[2]
The respondent as biological mother has
full parental responsibilities and rights in terms of s.19(1) of the
Children’s Act
38 of 2005 (“the Act”). The
applicant as biological father has full parental responsibilities and
rights in terms of
s.21(1)(b) of the Act.
[3]
What has brought on the urgency, is that
the respondent surreptitiously contrived to remove the child from the
custody and control
of the applicant and his mother in the second
week of June 2016, after the child had been with her father and
paternal grandmother
uninterruptedly since the end of last year with
the knowledge and consent of the respondent and her mother.
[4]
What had brought about the change in
attitude on the part of the respondent, is that she considered that
her own hitherto unstable
circumstances had stabilised, and so it was
better that the child now stay with her, rather than with the
applicant.
[5]
During the first two years of the child’s
existence, both parents were young people, attempting to find their
way in life
through relationships and jobs. Their relationship with
each other was already at its end when their unexpected future
parenthood
was discovered. That did not bode well for the minor
child.
[6]
Initially the young parents stayed together
but that did not last. Their relationship broke up and they went
their separate ways.
The brunt of the child’s welfare was borne
by the grandmothers on both sides, albeit that there is some issue
about the precise
extent to which the respondent’s mother
contributed.
[7]
The urgency precludes an exposition and
discussion, let alone resolution of the many factual disputes between
the parties. Suffice
it to say that even on the respondent’s
version, the little girl has had a period of stability since the end
of last year.
The applicant’s proposed relief seeks to protect
that stability pending the family advocate’s report.
[8]
The respondent’s attitude is twofold.
Although she agrees with the notion that the family advocate should
investigate and
report, she argues that the girl should stay with her
pending the investigation. She submits in this regard that, as of
this moment,
she and her life is stable and so the best interests of
the child, obviously the paramount consideration, is to stay with
her.
[9]
But secondly, she asks for a postponement
to obtain legal assistance, again on the basis that in the meantime
the child stays with
her.
[10]My
difficulty with these two positions is as follows. Accepting that as
of this moment the arrangements made by the respondent
are good for
the girl, the difficulty is that the respondent’s track record
is one of considerable instability.
[11]At
times she has gone to live with her father, who lives in Krugersdorp
and is divorced from her mother who has remarried. At
times she has
moved in with another young man with whom she formed an intimate
relationship and by whom she fell pregnant but lost
the child. And
although it is possible that the respondent has changed, such a
change has not yet had the opportunity of standing
the test of time.
[12]As
to obtaining legal assistance, the difficulty I have with the
respondent’s proposal is the following. When she filed
her
papers, she made no mention of obtaining legal assistance. She does
not explain what made her change her mind. She says that
she has no
lawyer now, but wants to get one as soon as she has the financial
wherewithal. She does not have the financial wherewithal
now, but
thinks she can get it within week. She does not disclose what the
source of her financial support is expected to be.
[13]The
applicant submitted that the respondent was merely using the issue of
legal assistance as a pretext to keep the girl under
her control and,
at a prima facie level that is the impression left with the court.
[14]These
factors are all relevant, but what ultimately weighs with the court
is that the circumstances of stability to which the
child has become
accustomed during the past six months ought to be restored as soon as
possible. At the same time, provision should
be made to afford the
respondent the opportunity to take in legal assistance, and to
approach the court again if so advised.
[15]Doing
the best one can in these circumstances, the following order issues:
(a)
The family advocate is requested forthwith
to investigate the circumstances surrounding the minor child J born
to the applicant
and the respondent, and to report to this court on
the best arrangement that can be made concerning the control and
custody of
and access to the minor child.
(b)
Pending the report of the family advocate
aforesaid, and pending any rehearing as anticipated below, as an
interim order with immediate
effect, the control and custody of the
minor child will vest in the applicant, subject to the reasonable
access of the respondent.
(c)
The reasonable access of the respondent
will include that the minor child will spend every weekend with the
respondent from 08h00
on Saturdays to 18h00 on Sundays.
(d)
Pending the report of the family advocate,
the respondent is granted leave to set this matter down again, on
supplemented papers
duly served on the applicant, for a rehearing to
revisit this order if deemed necessary, after she will have had an
opportunity
to obtain legal assistance.
(e)
No order as to costs issues.
WHG van der Linde
Judge, High Court
Johannesburg
For the
applicant: Adv Cowley
Instructed by
Beukes & Sonja Nel Attorneys
011-7440477
Respondent:
in person
Date
heard: 12 July 2016
Date
judgement: 13 July 2016