About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 433
|
|
R v R (2019/34212) [2020] ZAGPJHC 433 (14 August 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
IN
THE HIGH OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2019/34212
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
14/8/2020
In
the matter between:
R[....],
M[....]
C[....]
APPLICANT
And
R[....],
R[....]1
S[....]
RESPONDENT
JUDGMENT
ROSE
AJ
1.
The applicant, M[....] C[....] R[....], launched an application
in
terms of the provisions of uniform rule 43 on or about 10 March 2020,
wherein she sought an order in respect of maintenance
of the minor
child born of the marriage between the parties, H[....] B[....]
R[....], who is turning 2 years old next week on 18
August 2020 ("the
child"), and a contribution towards legal costs. The answering
affidavit in this application was delivered
on 2 June 2020.
2.
On or about 11 June 2020, R[....]1 S[....] R[....], as applicant,
launched a separate application in terms of the provisions of uniform
rule 43, wherein he sought an order in respect of contact
with the
child. The answering affidavit to this application was delivered on
29 June 2020. This application was dealt with as a
counter
application to that instituted by M[....] C[....] R[....] on or about
10 March 2020.
3.
Both these applications served before me and albeit that R[....]1
S[....] R[....] is the applicant in his own application, for ease of
reference, I shall refer to M[....] C[....] R[....] as the
applicant
and R[....]1 S[....] R[....] as the respondent throughout this
judgment.
4.
It is evident from the papers filed of record that since the
applicant left the former matrimonial home and since or about August
2019, the applicant has not allowed the respondent regular
and/or
unfettered contact with the child. deal with the applicant's reasons
for this hereunder.
5.
It is common cause that in January 2020, the applicant relocated
to
Durban, KwaZulu Natal with the minor child. The relocation has
further impacted on the respondent's contact with the child.
Consequently, the respondent has himself relocated to Durban,
Kwa-Zulu Natal, which temporary residence, he intends making
permanent
as recorded during argument of the matter.
6.
It is further common cause that the respondent has not had any
physical contact with the child for a period of approximately 4
months at the instance of the applicant. This appears to be
consequent
upon,
inter alia,
concerns raised in regard to the
respondent's medical condition and/or the respondent failing and/or
refusing to return the child
to the applicant shortly prior to the
national Covid-19 lockdown, in an alleged unilateral and underhanded
attempt at retaining
the child contrary to the arrangements
unilaterally imposed by the applicant.
7.
From the papers filed of record and argument by counsel, it
is
evident that the basis upon which the applicant relies and justifies
withholding contact with the child from the respondent,
can be
summarized as three considerations:
7.1.
the respondent alleged abusive nature and further alleged
inappropriate and/or concerning conduct in endeavouring to retain the
child during Covid-19 and pursue various proceedings in,
inter
alia,
the domestic violence court, which conduct was described as
"not
bona fide"
during argument ("the
respondent's alleged
mala
fide
conduct");
7.2.
the respondents alleged inability to care for the child in
light of,
inter alia,
the age of the child; and
7.3.
the respondent's medical condition being of such a nature that
this may pose a danger to the child.
8.
In the circumstances, the question arising is - was it in the
best
interests of the child for the applicant to withhold the respondent's
contact with the child, based on the factors summarized
in paragraphs
7.1 to 7.3 above? I have considered the contents of the papers filed
of record and the argument of counsel and have
come to the conclusion
that it was not in the best interests of the child.
9.
From the papers filed of record, it is apparent that the respondent's
alleged abusive conduct was never in respect of the child, but the
applicant only. This was not challenged during argument before
me. In
the circumstances I cannot find that the child would be in any danger
and/or that there would be any prejudice to the child
on this basis,
whilst in the care of the respondent. I also cannot find that it
would not be in the best interests of the child
to have reasonable
contact with the respondent because of the respondent's alleged mala
fide
conduct, which once again, never related to the child
save for the isolated incident where the respondent endeavoured to
retain
the child in his care on the eve of the Covid-19 lockdown, in
circumstances where, it is evident from the papers, his contact had
been unduly frustrated by the applicant where she would not accept
written confirmation from a medical practitioner that the respondent
is able to care for the child and instead insisted on being present
in joint consultations with the respondent's medical practitioner/s.
10.
In respect of the second consideration, the age of the child and the
respondent's
ability to care for him, as was held in P v P
2007 (5)
SA 94
(SCA), the value systems and social beliefs underpinning the
"maternal preference"
or
"tender years",
principle have been challenged in our Courts, which have held
that parenting is a gender-neutral function. The assumption that a
mother is necessarily in a better position to care for a child than a
father, belongs in a past era.
11.
The child is no longer a small baby. The child will be 2 years old
next week.
In addition, the applicant did not advance any cogent
basis upon which I can find that the respondent would not be able to
properly
care for the child. In addition, the respondent is currently
residing with his parents in Durban, Kwa-Zulu Natal, and will do so
until at least the end of the year. Accordingly, assistance should
the respondent require same, will be available to him if need
be.
During this time, the best interests of the child, which would
include the respondent's ability to care for the child, will
be fully
investigated by a duly qualified expert which I intend appointing.
12.
The last factor which I need to consider is the allegation that the
respondent's
medical condition, encephalopathic secondary epilepsy
syndrome with complex partial seizures, renders him unfit to care for
the
child.
13.
The respondent, in his papers filed of record, alleges that his
doctor has declared
that he is fit to care for himself and the child.
The medical certificate confirming this, was however not part of the
papers.
This evidence is crucial in considering the best interests of
the child and I, as upper guardian of the child, called for this
certificate to be placed before me in terms of the provisions of
uniform rule 43(5). The applicant was afforded the opportunity
to
reply thereto, if necessary.
14.
A medical certificate from a certain Dr Cheyip dated 27 February 2020
was placed
before me by the respondent, which indeed confirms that
the respondent is able to care for himself and the child. Dr Cheyip
however
further stated that the respondent should avoid stressful
situations and that it is not advisable for the respondent to drive.
15.
Instead of a formal reply on behalf of the applicant, I have been
provided with
numerous letters by the applicant's attorneys, some of
which I have been requested to disregard by the respondent's
attorneys,
in circumstances where the letters do not constitute a
formal reply and certain letters, in addition to those uploaded to
case
lines, were emailed to my registrar directly without copying the
respondent's legal representatives in the emails. Albeit that the
letters are not in the form of a formal reply, I have had regard to
the letters that were uploaded to case lines, as it is prudent
that
all evidence impacting on the best interest of the child be
considered and I am entitled to do so by virtue of the provisions
of
rule 43(5). From these letters, it is evident that the respondent
previously endeavoured to engage with the applicant to provide
the
applicant with medical confirmation in regard to his ability to care
for the child, despite his medical condition. This is
in fact also
apparent from the covering email of the medical certificate of Dr
Cheyip provided to me by the respondent, which email
is dated 3 March
2020 and directed at the applicant. The letters take this issue no
further, save that it is apparent therefrom
that the applicant wishes
to have joint consultations with the respondent's medical
practitioner/s in the spirit of mistrust that
has pervaded the
matter, which has now even extended to medical professionals,
contrary to the best interests of the child.
16.
I have not been requested to grant an order entitling the applicant
to have
joint consultations with the respondent's medical
practitioner/s. Even if there was an order sought to this effect, I
would not
be inclined to grant such an order.
17.
Any fears or concerns that the applicant may have in regard to the
respondent's
medical condition and the impact thereof on his ability
to care for the child, will be alleviated by the fact that I intend
appointing
a duly qualified clinical psychologist to investigate the
best interests of the child, particularly the issue of his residence
and what contact each of the parties is to have with the child, and
to request the said psychologist to render a report to court
in this
regard. This psychologist will be empowered by this court to,
inter
alia,
interview the respondent's medical practitioners, make
interim recommendations in regard to the respondent's contact with
the child,
which recommendations the parties can either adhere to or
approach a court of competent jurisdiction to seek adherence to if
need
be.
18.
I pause to point out that it is poignantly evident from the papers,
that a high
handed and in some instances a tit-for-tat approach to
the issue of residence and contact has been adopted in this matter.
This
is not in the best interests of the child and I implore the
parties to refrain from this and to place the best interest of the
child above their own.
19.
Two wrongs do not make a right and withholding contact and attempting
to then
steal a march by retaining the child prior to the national
Covid-19 lockdown contrary to arrangements that were in place,
irrespective
of the arrangements being imposed unilaterally and/or
how unreasonable the arrangements may appear to be to a party, are
not actions
in the best interests of the child and only serve to fuel
the fires of litigation.
20.
I am of the view that it is in the child's best interests that the
respondent's
contact with him be re-established in the circumstances
with sufficient safeguards insofar as may be necessary. He is the
child's
father, and the fact that he suffers from a medical condition
is no reason to withhold contact from him as has been done in this
matter, particularly where there is confirmation from a medical
practitioner that his ability to care for the child is not impeded.
Accordingly, I intend granting an order reinstating the respondent's
reasonable contact with the child forthwith.
21.
I have further considered the issues of maintenance payable by the
respondent
to the applicant in respect of the child and the
contribution towards legal costs sought by the applicant, an Order in
respect
of which I grant hereunder.
22.
Before I do so however, I must address the applicant's claim for
arrear maintenance
for the period August 2019 to date.
23.
The applicant could have, and should have, launched rule 43
proceedings in respect
of maintenance at an earlier stage, instead of
now claiming arrear maintenance retrospectively for a period of a
year without explaining
the delay in bringing the application. In
matters concerning maintenance, parties must approach the court when
the need arises,
and not at some later stage, as this would indicate
that there is in fact no need for maintenance. If it were not for the
allegations
contained in the founding papers that the applicant
obtained personal loans to make ends meet, this court would have
questioned
the applicant's need and particularly how the applicant
managed to survive for a year without receiving alleged adequate
maintenance
from the respondent.
24.
To grant an order retrospectively at this stage requiring the
respondent to
pay a substantial lump sum, will place undue strain on
the respondent in the circumstances. Furthermore, the applicant makes
provision
for the re-payment of the personal loans in her schedule of
monthly expenses as being an expense for herself only and not for the
child for who maintenance is sought in this application. This court
cannot lose sight of the purpose of maintenance, being to enable
a
party to maintain him/herself and/or a child, as the case may be. It
is not to reimburse a party for expenses previously incurred,
which a
party managed to finance through other means, particularly if this
was done over a lengthy period of time prior to approaching
this
court for assistance.
25.
It would be undesirable to set a precedent where a party can claim
arrear maintenance,
as in this case, a year after the need allegedly
arose and where the applicant managed to maintain the child, in the
absence of
the payment of the sum now sought as maintenance. This
could lead to an abuse of the process of this court, particularly
rule 43
proceedings, which are intended to provide for maintenance
pendente lite
and be expeditious.
26.
I am however of the view that a case has been made out for an order
in respect
of arrear maintenance for the period of June 2020 to July
2020, in circumstances where the applicant did eventually launch rule
43 proceedings on 10 March 2020. Bearing in mind that rule 43
proceedings are designed to be expeditious in nature, the applicant's
rule 43 application should reasonably have been brought to finality
in or about June 2020, even considering the diminished functioning
of
the courts during the Covid-19 lockdown period. Had it not been for
the separate rule 43 application instituted by the respondent
on 11
June 2020, the late delivery of the answering affidavit in the
applicant's rule 43 application on 2 June 2020 and the rule
30
proceedings launched by the respondent on 31 July 2020, all of which
resulted in an undue delay in the finalization of the matter
which
should have been dealt with expeditiously, this matter would have
been brought to finalization much earlier.
27.
Accordingly, I grant an order the following terms
pendente
lite:
27.1.
The parties shall both retain full parental responsibilities
and rights in respect of the child.
27.2.
The child shall reside with the applicant and the respondent
shall be entitled to exercise reasonable contact with the child.
27.3.
When the respondent is in Durban, Kwa-Zulu Natal, he shall be
entitled to exercise reasonable contact with the child as follows:
27.3.1.
Every Tuesday and Thursday for a period of 2 hours;
27.3.2.
Every alternate weekend on the Saturday and the Sunday from
08:00 to 17:30;
27.3.3.
Father's Day from 08:00 to 17:00;
27.3.4.
On the respondent's birthday for a period of 3 hours should
this be on a weekday or from 08:00 to 17:30 should this be on a
weekend;
27.3.5.
Half the available time on the child's birthday.
27.4.
The respondent shall not drive the child in a motor vehicle,
be it to to collect and drop off the child for purposes of contact or
otherwise, until such time as the psychologist appointed to
investigate this matter as provided for in paragraph 27.8 hereunder,
recommends that he is safely capable of doing so after consultation
with the respondent's specialist neurologist.
27.5.
Should the respondent not be able to drive to collect and/or
drop off the child for purposes of contact, the applicant or a person
nominated by the applicant, shall drop the child off at a venue
designated for purposes of contact by the respondent and shall
collect the child when the contact period comes to an end.
27.6.
The respondent shall immediately inform the said psychologist
if his neurologist withdraws and/or amends such authorization to
drive
a motor vehicle in any way whatsoever and obtain an alternate
recommendation from the psychologist in this regard.
27.7.
In addition to the physical contact set out in paragraphs
27.3.1 and 27.3.5 above and irrespective of whether the respondent is
in Durban, Kwa-Zulu Natal, the respondent shall be entitled to daily
video call contact for 5 minutes between 08:30 and 09:00 and
5
minutes between 15:30 and 16:00, through such suitable video platform
as elected by the respondent, for which contact the applicant
shall
ensure that the child is available, has a device, is not distracted
by her and provided with an electronic device.
27.8.
Within 5 court days of the granting of this order, the parties
shall agree the identity of a duly qualified clinical psychologist,
who is directed to investigate the best interests of the child,
particularly the issue of his residence and what contact each of
the
parties is to have with the child, and to render a report to court in
this regard as a matter of urgency. Should the parties
be unable to
agree the identity of such psychologist, the parties shall forthwith
approach the Health Professions Council of South
Africa to make an
appointment as a matter of urgency.
27.9.
The appointed psychologist shall further be entitled to make
interim recommendations in regard to all aspects of the respondent's
contact with the child and interview all persons necessary to enable
this to be done, including but not limited to the respondent's
medical practitioners.
27.10.
The costs of the psychologist and all costs incidental to the
investigation shall be paid by the parties in equal shares.
27.11.
The applicant and the respondent are directed to fully
co-operate with the investigations by the psychologist.
27.12.
The respondent shall make payment of the amount of R7,500.00
per month to the applicant in respect of maintenance for the minor
child, the first payment shall be made within 7 days of the granting
of this order and all subsequent payments shall be made on
or before
the P
1
day of every month.
27.13.
In addition to the cash sum in paragraph 27.12 above, the
respondent shall:
27.13.1.
Retain the child as a dependent on medical aid scheme and make
timeous payment of the monthly premiums in respect thereof;
27.13.2.
Make timeous monthly payment of:
27.13.2.1.
50% of the child's creche fees directly to the service
provider concerned;
27.13.2.2.
50% of the child's extra mural activities, limited to 1
activity per month, in respect of which the respondent's prior
consent is
to be obtained, which consent shall not be unreasonably
withheld, directly to the service provider concerned;
27.13.2.3.
50% of all reasonable and necessary excess medical expenses
not covered by the medical aid scheme. Insofar as the applicant has
to make payment of the full expense, the respondent shall reimburse
the applicant within 7 days of being presented with an invoice
in
relation thereto.
27.14.
All payments to the applicant by the respondent shall be made
by way of eft into an account nominated by the applicant in writing.
27.15.
The respondent shall make payment to the applicant of the sum
of R15,000.00 in respect of arrear maintenance for the child for the
months of June 2020 and July 2020, which sum shall be paid in 5 equal
installments in the sum of R3,000.00 each, the first installment
of
which shall be payable on or before 1 September 2020 and all
installments thereafter on or before the 1
st
day of the
following months.
27.16.
The respondent shall pay a contribution towards the
applicant's legal costs in the sum of R15,000.00, which shall be paid
in 6 equal
installments in the sum of R2,500.00 each, the first
installment of which shall be payable on or before 1 September 2020
and all
installments thereafter on or before the 1
st
day
of the following months.
27.17.
The costs of both the applicant's and respondent's rule 43
applications shall be costs in the cause of the divorce action.
ROSE
AJ
ACTING
JUDGE
OF
THE
HIGH
COURT
OF
SOUTH
AFRICA,
GAUTENG
DIVISION
DATE
OF HEARING:
12 AUGUST 2020
JUDGMENT
DELIVERED:
14 AUGUST 2020 (electronically)
FOR
APPLICANT/RESPONDENT:
ADVOCATEA.SALDUKER
INSTRUCTED
BY:
CUTHBERTSON & PALMERIA ATTORNEYS INC
FOR
RESPONDENT/APPLICANT:
ADVOCATE N. RILEY
INSTRUCTED
BY:
ULRICH ROUX & ASSOCIATES