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[2020] ZAGPJHC 137
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V K v Reid NO and Others (3256/2018) [2020] ZAGPJHC 137 (17 June 2020)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 3256/2018
In the
matter between:
K,
V
Applicant
and
MAGISTRATE REID N.O:
PRESIDING MAGISTRATE,
RANDBURG
CHILDREN'S
COURT
First Respondent
D,
M
Second Respondent
THE
MAGISTRATES'
COMMISSION
Third Respondent
MAGISTRATE
GCAWU N.O: PRESIDING MAGISTRATE
RANDBURG
CHILDREN'S
COURT
Fourth Respondent
JUDGMENT
LEECH,
AJ:
1 This is a judgment
in an application brought by Ms V K principally to obtain relief in
relation to her custody and guardianship
of her minor daughter J D
(J).
2 It is common cause
that J was born on 27 November 2009 out of the marriage between the
applicant and the second respondent, Mr
M D, and that their marriage
was ended by decree of divorce issued by this Court on 20 February
2017.
2.1 In her judgment and order of 20 February 2017, the honourable
presiding judge Fisher J dealt
inter alia
with residence,
custody, and contact of J.
2.2 Paragraph 5 of the order reads that the issues of supervised
contact and sole guardianship of J were postponed
sine die
pending
the outcome of the family advocate' s report and recommendation.
3 The application
before me was brought in two parts. Part A was issued out of this
Court at the instance of the applicant on 29
January 2018. The Part A
aspect of the application, which was opposed by the second
respondent, was heard by Francis
J
who, on 7 February 2018,
granted an interim order. I deal with its contents below.
4 Part
B
of the application was set down and heard before me on 17 June
2020.
5 Ms Martin appeared
on behalf of the applicant. There was no appearance on behalf of the
second respondent, who also failed to
file any answering affidavit in
opposition to the application.
6 Although the
application proceeded before me on an unopposed basis, given the
nature of the relief sought and the circumstances
of the case-in
particular, in that it pertains to a minor child-I considered it
prudent to issue a formal written judgment, as
I hereby do.
7 The
facts giving rise to the application are, briefly, as follows:
7.1 On 16 January 2018 the Randburg Magistrate's Court purported to
hand down an order affecting
inter alia
the custody of and
rights of contact of the second respondent to J
(the Magistrate's
Court Order).
This Order varied the terms of Fisher J's order of
20 February 2017.
7.2 The applicant was not served with any process prior to the
Magistrate's Court ostensibly becoming seized of the matter and
was
not afforded procedural fairness prior to the issuing of the
Magistrate's Court Order.
7.3 The second respondent thereafter proceeded to exercise these
revised rights of contact afforded him under the Magistrate's
Court
Order, allegedly to the detriment of the emotional and psychological
wellbeing of J.
7.4 The applicant launched her application seeking urgent interim
relief under Part A and, under Part B, the grant of further relief
including the review and setting aside of the Magistrate's Court
Order.
7.5 As alluded to above, Francis J heard Part A of the application on
an urgent basis, in the course of which he
inter alia
interviewed
J. He granted an order in terms of which
inter alia:
7.5.1
J's primary residence was to remain with the applicant;
7.5.2
Shared parental rights and responsibilities were awarded
jointly to the Parties;
7.5.3
The second respondent was awarded weekly supervised contact as
well as reasonable telephonic contact with J;
7.5.4
The Parties agreed to attend child-centred mediation; and
7.5.5
The Parties were afforded the right to supplement their papers
in the Part B aspect of the application.
7.6 The applicant has supplemented her papers in the application
before me. In the absence of an answer or any response at all
from
the second respondent, the allegations made by her are to be accepted
for purposes of the determination of Part B by me.
7.7 In short, the thrust of these allegations is that the second
respondent exercised his rights of contact with J on no more than
five occasions between April and June 2018. The last of these
occasions was a visit to J's school, during which he appeared to
have
no direct contact with J. Since June 2018 he has had no direct
contact with J.
7.8 The second respondent has not honoured his maintenance
obligations and 1s presently in arrears to the tune of hundreds of
thousands of Rand's.
7.9 In January 2019 the second respondent, together with his then
partner and her children, emigrated to Holland where he remains
to
date. He has made contact with the applicant only once since then, in
June 2019 on the occasion of a return visit to South Africa,
but did
not on that occasion accept the invitation she extended to him to
visit J.
7.10 Although I make no finding in that regard, the evidence before
me suggests that the second respondent has played no part in
the
day-to-day care of J, in decisions affecting her custody or wellbeing
, or in any sense that would ordinarily be expected of
a parent and
natural guardian of a minor child .
8 Satisfactory
evidence has been placed before me to show that the second respondent
has been made aware of the proceedings before
me , of the
supplementary affidavits and documents filed in Court, of the relief
being sought, and of the hearing conducted before
me. I should add
that, in accordance with the practice directives and regulations that
presently obtain due to the state of National
Disaster as declared by
the President in response to the Covid-19 pandemic, the hearing
before me was conducted via an online streaming
platform. The second
respondent was made aware of this and, via email, was sent an
electronic invitation to participate in the
proceedings. He did not
do so.
9 Having read the
papers before me and having considered the history of the matter, the
orders of Judges Fisher and Francis, and
the written and oral
submissions advanced on behalf of the applicant , this is my judgment
in relation to Part B of the application:
9.1 It is clear that the decision culminating in the Magistrate's
Court Order is unlawful and falls to be reviewed and set aside.
Leaving aside the obvious difficulty that the High Court was already
seized of the very matters that the Magistrate's Court Order
purports
to deal with and that on the evidence presented in the papers before
me the Rules of the Magistrate's Court were not adhered
to and the
proceedings before that Court were not properly implemented, it is
clear that the applicant was not accorded procedural
fairness.
9.2 It was argued that the Magistrate's Court Order was obviously a
nullity and that it could safely be ignored . Whatever the
strengths
and weaknesses of that argument may be, the applicant has applied for
the review and setting aside of that Order, jurisprudentially
it is
proper that the ostensible administrative action be reviewed and set
aside, and the grant of an order to that effect by me
would also
provide the necessary certainty and assert the hegemony of this court
and its Orders.
9.3 As far as concerns the relief pertaining to J, the overriding
consideration in matters of this nature is- and must always be-what
is in the best interests of the minor child.
9.4 It is plain in this regard , that the primary interests of the
minor child are that she continue to be cared for and her needs
attended to by her mother. All of the evidence before me, including
the reports filed by the family advocate , support this conclusion.
It is also inherent in the Order of Francis J who, as I have stated
above, had the benefit of interviewing J.
9.5 The change in circumstances that have occurred since February
2018, when Francis J made the order he did, militate strongly
in
favour of an extension of those rights and obligations of care in the
hands of the applicant, rather than any curtailment thereof.
Indeed,
once it is to be accepted-as I must, on the strength of the
unanswered allegations before me-that the second respondent
is
playing no ongoing part in the care and maintenance of or
responsibility for J, it is appropriate and just that the legal
position
be altered to reflect that reality.
9.6 There is no evidence to gainsay the proposition that given this
state of affairs it would be in the best interests of J for
her
mother to exercise in full the rights and responsibilities of a
parent under
section 18
of the
Children's Act, 38 of 2005
, including
full and sole guardianship.
9.7 There is also no reason, at this stage, why the second respondent
should not continue to exercise the rights and responsibilities
of
parent as provided for in the order of Fisher J and as varied by
Francis J, save for guardianship. This would include, at least
until
circumstances change (if they change at all), the rights of contact
provided for by Francis J.
9.8 In relation to contact, however, it has been two years since the
second respondent last had any direct contact with J. Given
that
lapse of time-which is not inconsiderable in the life of a young
child who was eight years and seven months when last she
met with her
father-I am not inclined to make that aspect of Francis J's order
permanent.
9.9 It seems to me having regard to the history of the litigation
between the Parties that it is more sensible that Francis J's
order
stands as an interim order and for the Parties to be allowed to
approach the Court on the same papers duly supplemented for
a
variation to that order should the need arise.
10 I
accordingly make the following order:
1. The purported Order handed down on 16 January 2018 in the Randburg
Magistrate's Court under file number 14/1/4/2-477/2017, a
copy of
which is attached to the founding papers as 'VK19", is hereby
reviewed and set aside;
2. The applicant is to retain full parental rights and
responsibilities in terms of
Section 18
of the
Children's Act 38 of
2005
of the minor child, J D (J), born 27 November 2009;
3. The applicant is awarded sole guardianship of the minor child, J;
4. The applicant is awarded primary residence of the minor child, J;
5. The second respondent is to retain full parental rights and
responsibilities, save for guardianship in terms of
Section 18
of the
Children's Act 38 of 2005
;
6. Paragraphs 3 to 3.6 of the
interim
Order of Judge Francis,
handed down on 7 February 2018 under case number 3256/18, pertaining
to care and contact, remains in place;
7. The Parties are granted leave to supplement these papers and to
approach this court on the same papers duly supplemented for
a
variation of the order pertaining to care and contact, should it be
necessary;
8. Each party is to pay their own costs arising from Part A and Part
B of this application.
________________________
B.E.
LEECH
ACTING JUDGE OF THE
HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Counsel
for the applicant:
Ms SJ Martin
Instructed
by:
NLA Legal Inc
Counsel
for the respondent:
No appearance
Instructed
by:
No appearance
Date of
hearing:
17 June 2020
Date of
judgment:
17 June 2020