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[2019] ZAGPJHC 415
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E V v S V (32022/19) [2019] ZAGPJHC 415 (8 October 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 32022/19
In the
matter between:
E
V
Applicant
and
S
V
Respondent
JUDGMENT
MAKUME,
J
:
[1] In this matter the
Applicant launched an urgent application in this court on the 17
th
September 2019 seeking an order that the Respondent be ordered to
restore the status quo ante prior to the 1
st
September
2019 and to return the minor child D V to Johannesburg.
[2] The Applicant and the
Respondent married each other in community of property at Kempton
Park on the 11
th
November 2011. Out of this marriage
the minor child D was born on the 25
th
June 2012.
The child is presently 7 years old.
[3] The parties lived
together as a family in Kempton Park until about February 2017 when
the Respondent and the minor child D left
common and have since been
living by themselves at a rented place in Glen Marais, Kempton
Park. The Applicant agreed
to sign a 2 years lease and
paid monthly rental in the sum of R8 500 per month for the
Respondent and the minor child.
[4] The parties concluded
an informal agreement in terms of which the minor child D alternated
weekly between his parents.
It was also agreed that Applicant
pay school fees for D. Further that each parent would maintain
D during the week or time
he resides with each party.
[5] On the 1
st
July 2019 the Applicant sent an email to the Respondent informing her
that when the lease in respect of the premises they were
occupying
expires at the end of September 2019 he intends not to renew it and
further that if the Respondent still wished to live
there she should
enter into her own lease agreement for which he the Applicant will
contribute only R4500 per month and still pay
school fees for
December.
[6] I must mention that
at that stage the Respondent had already issued and served summons
for a divorce as far back as 2017 the
action had been instituted in
this court under case no 33961/17
[7] When the Respondent
received the email from the Applicant she without informing the
Applicant started making arrangements to
relocate to Bellville
together with the minor child to that extent she applied to a school
in Bellville and also requested her
employer Cipla to relocate her to
their head office in Cape Town which request was successful.
[8] On the 1
st
September 2019 the Respondent left for Cape Town with the minor child
and sent an email to the Applicant informing him that:
i)
She has decided to
relocate to Bellville to live with her sister since she would not be
able to afford to pay accommodation for
her and the child in Kempton
Park now that the Applicant had decided to not renew the lease.
ii)
That she has already
enrolled D at a school in the area.
[9] The Applicant
launched this application seeking that this court order the
Respondent to return the minor child to Kempton Park.
He
maintain that his rights to access to the minor child have been
violated by the Respondent who clandestinely and surreptitiously
“Abducted” the minor child. He maintains that it is
not in the interest of D that he be removed from Kempton
Park where
he grew up and be relocated to a strange place.
[10] On the other hand
the Respondent maintain that as a result of the abusive behaviour by
the Applicant she decided to institute
a divorce and that she
relocated because not only was she going to have difficulty to
provide for accommodation for the child also
that according to her
what she did is to act in the best interest of the minor child.
[11] It is against this
back ground that I now have to decide whether this court must accede
to the request of the Applicant or
not.
[12] As it was said by
the Supreme Court of Appeal in Jackson v Jackson case Np 18/2001
judgment delivered on the 29
th
November 2001 the guiding
principles in matter such as the present is that the interests of the
child are paramount.
This approach is now entrenched in
Section 28 (2) of the Constitution of SA Act 108 of 1996
which
reads as follows:
“
A child’s
best interest are of paramount importune in every matter concerning
the child.”
[13] The Respondent says
that all she did is in the best interest of the minor child because
of the following reasons:
i)
That she was
devasted by the fact that the Applicant decided to only contribute
R4 500 towards her accommodation with the minor
child.
ii)
She would not be able with
her income to afford suitable accommodation for her and the child as
well as to maintain herself and
the child.
iii)
The R4 500 that the
Applicant offered could only pay for a single room and for her it
will not be in the best interest of D.
iv)
Prior to that she had
gained the impression that in fact Applicant is not interested in
keeping the child. She says that on
the 11 July 2019 the
Applicant chased the child away from him and told him to go its
mother and since that incident she noticed
that the relationship
between D and the Applicant had deteriorated to the extent that D was
now reluctant to visit his father the
Applicant.
v)
That
due to her precarious financial situation she could only think of one
place at which she will be able to live comfortably with
the child
that is her sister’s place in Bellville.
vi)
She
had also prior to that informed D’s teacher at Kruinsig Primary
School in Kempton Park that she will be relocating to
Bellville with
the child and that the teacher had no problem.
vii)
She
also says that shortly before and after their marriage the Applicant
had indicated to her that they will relocate to Western
Cape that
never happened.
[14]
It is common cause that the minor child has now been attending school
in Bellville since the 2
nd
September 2019. His registration at Kruinisig has been
cancelled. According to the Respondent D goes to the same
school as her two cousins K (Grade 3) and M (Grade R). D and
his cousins are dropped off at school by the Respondent’s
brother in law G B and they all attend after care at the same school.
[15]
Applicant says she is satisfied that the security at the after care
is sufficient. D has already made friends one is
D and the
other is E.
[16] I
have no doubt that both the Applicant and the Respondent have as
individuals showed love for the minor child. However
seeing
that the parties are in the process of a divorce a time will come
when another court will have to decide on an appropriate
primary
residence for the minor child. In my view whilst it was
convenient to share residence whilst the parties all lived
Kempton
Park, it is so that it will now not now be possible to achieve that
because of the distance. Mrs Van Staden the Respondent
has
relocated permanently to Cape Town where she is employed and says
that as soon as she is financially stable she intends to
get her own
place to live with her child.
[17]
In my view it will not be in the best interest of the minor child to
be shunted on a weekly basis between Cape Town and Kempton
Park.
It will interfere with his schooling. An English Judge once
remarked that:
“
When
a marriage breaks up, then a situation normally arises when the child
of that marriage instead of being in the joint custody
of both
parents must, of necessity become one who is in the custody of a
single parent.”
[17] Having considered
all the facts I am not persuaded that it will be in the best interest
of D to order that he be returned to
Kempton Park at this stage.
I say so because this matter will still enjoy the attention of social
workers and the family
advocate. In the result I make the
following order:
ORDER
The
application is dismissed.
I
make no order as to costs.
DATED
at JOHANNESBURG on this the day of OCTOBER
2019.
________________________________________
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE OF
HEARING
: 16
OCTOBER 2019
DATE
OF DELIVERY
: 08
OCTOBER 2019
FOR
APPLICANT
: Adv SJ
Martin
INSTRUCTING
: Messrs
Gittins Attorneys
Johannesburg
FOR FIRST
RESPONDENT
:
Adv
Bosman Sc
INSTRUCTING
: Messrs
Nielen Marais Inc
Johannesburg