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[2014] ZASCA 222
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KLVC v SDI (20334/2014) [2014] ZASCA 222; [2015] 1 All SA 532 (SCA) (12 December 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20334/2014
Reportable
In
the matter between:
K
L V
C
......................................................................................................................................
Appellant
and
S
D
I
...............................................................................................................................
First
Respondent
OFFICE
OF THE FAMILY
ADVOCATE
.............................................................
Second
Respondent
Neutral
citation:
KLVC v SDI
(20334/2014)
[2014] ZASCA 222
(12 December 2014)
Coram:
Maya, Leach, Theron, Mbha JJA & Schoeman AJA
Heard:
28 November 2014
Delivered:
12 December 2014
Summary:
Section 21(1)(
b
)
of the Children’s Act 38 of 2005 –requirements that must
be satisfied before an unmarried father can acquire full
parental
rights and responsibilities, as envisaged by s 18 of the said Act, in
respect of his minor child met.
ORDER
On
appeal from: the KwaZulu-Natal Local Division, Durban (Gabriel AJ
sitting as a court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Mbha
JA:
(Maya, Leach, Theron JJA and
Schoeman AJA concurring):
[1]
The appellant and the first respondent are the biological parents of
a minor child S, a boy born in Durban, South Africa on
30 July 2012.
The parties were never married to each other, nor did they cohabit or
live together in a permanent life partnership.
The first respondent
has however at all material times consented to being identified as
the child’s father. On 28 November
2012, and whilst the first
respondent was on a brief visit to the United States of America, the
appellant removed the child from
Durban and relocated to England
without either informing or seeking permission from the first
respondent to do so. At the time
the child was four months old.
[2]
On 16 May 2013, the first respondent applied to the High Court of
Justice, Family Division of the United Kingdom (the English
court),
in terms of the Hague Convention on the Civil Aspects of
International Child Abduction, 1980 (the Hague Convention), for
an
order directing the appellant to return S to his habitual place of
residence in Durban, South Africa. The basis of the application
was
that the appellant had removed S from South Africa to England in
breach of the first respondent’s co-parental rights
and
responsibilities by not seeking the first respondent’s approval
before doing so.
[3]
The appellant opposed the application on the grounds that, firstly,
the first respondent was not exercising ‘rights of
custody’
as defined in Articles 3 and 5 of the Hague Convention, and secondly
that, in terms of Article 13(b) there was a
grave risk that should
the child be returned to South Africa, he would be exposed to
physical or psychological harm or otherwise
be placed in an
intolerable situation.
[4]
The fundamental question for resolution before the English court was
whether the appellant’s removal of the child from
South Africa
without the first respondent’s approval was wrongful. This, of
necessity, entailed determining two aspects stipulated
in Article
3
[1]
of
the Hague Convention namely, firstly, in terms of Article 3(a),
whether the removal of the child was wrongful because it was
in
breach of the rights of custody of the first respondent under the law
of South Africa immediately before the removal of the
child, and
secondly, in terms of Article 3(b), whether the relevant rights of
custody were actually being exercised at the time
of the child’s
removal.
[5]
The English court was unable to decide the question whether the
appellant was lawfully entitled in November 2012 to change the
place
of residence of the child from South Africa to England without the
prior permission or consent of the first respondent or
an appropriate
South African court. Consequently, on 21 August 2013 the English
court made an order referring the following question
to a South
African court for determination:
‘
In
November 2012, was it lawful under South African law, having regard
to the circumstances of this case, for the Respondent [appellant]
to
change the place of residence of the child from a place in South
Africa to a place in England and Wales without the prior permission
or consent of the Applicant [first respondent] or other appropriate
South African court?’
[6]
On 8 October 2013 the first respondent, as applicant, issued
application proceedings in the KwaZulu-Natal Local Division, Durban
(the court a quo) for consideration of the question referred to it by
the English court. The court a quo ruled in the first respondent’s
favour and found that in November 2012 the first respondent had met
all the requirements prescribed in s 21(1)(
b
)(i)-(iii)
of the Children’s Act 38 of 2005 (the Act). Furthermore the
court a quo held that he had acquired full parental
rights and
responsibilities in respect of the child as envisaged in s 18 of the
Act. Accordingly, it was necessary for the appellant
to have obtained
the first respondent’s consent or permission, alternatively, a
consent by an appropriate court, prior to
applying for a passport for
S’s removal from South Africa. This appeal, with leave of the
court a quo, is against the judgment
and order granted.
[7]
Before dealing with the merits of the appeal, it is necessary first
to dispose of two preliminary issues raised by the appellant.
The
appellant sought to expand her grounds of appeal by the addition of a
further ground, namely that her right to a fair public
hearing in the
court a quo, in terms of s 34 of the Constitution, had been violated.
The basis of her complaint is that counsel
who had prepared the heads
of argument upon which the matter was argued on 24 February 2014 was
not available for the hearing and
as a result she had been
represented by different counsel. This application was however
abandoned, correctly in my view, as there
was no specific complaint
about the competency or otherwise of the counsel who represented the
appellant in the court a quo, or
about any prejudice allegedly
suffered by her. In any event, the same papers are before this court
and the appellant was represented
on appeal by her initial counsel of
choice, and to start afresh in the high court would be an exercise in
futility.
[8]
The appellant also sought to lead on appeal further evidence about
matters concerning the first respondent’s conduct and
events
regarding the child which arose after she had deposed to her
answering affidavit on 20 January 2014, in the court a quo.
This
application was similarly misconceived. The question which the
English court has referred to a South African court relates
to a
specific point in time, namely November 2012. It follows that the
lawfulness or otherwise of the appellant’s conduct
when she
removed the child from South Africa must be determined with reference
to this date. Accordingly, any evidence of events
subsequent to
November 2012 is irrelevant to the question referred to the court a
quo and is therefore inadmissible. In the result,
the application to
adduce this further evidence must fail.
[9]
As the parties were not married or living together in a permanent
life partnership, the real issue in this appeal is whether,
in terms
of s 21(1)(
b
)
of the Act, the first respondent had acquired full parental rights
and responsibilities in respect of the child as envisaged in
s
18(2)(
c
),
[2]
prior
to his removal from the Republic in November 2012. If the answer to
this question is in the affirmative, it follows that the
first
respondent had rights of guardianship in respect of the child, and
that either the first respondent’s consent or permission
or
that of a competent court was required before the child could be
removed from the Republic.
[10]
Section 21(1)(
b
) provides for the acquisition of full parental
responsibilities and rights of an unmarried father regardless of
whether he has
lived or is living with the mother of the child if he─
‘
(i)
consents to be identified or successfully applies in terms of section
26 to be identified as the child’s father or pays
damages in
terms of customary law;
(ii) contributes or
has attempted in good faith to contribute to the child’s
upbringing for a reasonable period, and;
(iii)
contributes or has attempted in good faith to contribute towards
expenses in connection with the maintenance of the child
for a
reasonable period.’
[11]
The decision of the court a quo was attacked on various grounds which
can be summarized as follows: section 21(1)(
b
)
of the Act explicitly sets out three requirements which must all be
satisfied before an unmarried father in the position of the
first
respondent could acquire full parental rights and responsibilities;
because the first respondent met one requirement only,
namely that he
consented to be identified as the child’s father, he never
acquired any parental rights; the first respondent
never contributed
either adequately or at all or attempted in good faith to contribute
to the child’s upbringing and expenses
in connection with
the maintenance of the child; and, even if he did have any parental
rights in respect of the child, he was not
exercising them at the
time of the child’s removal as he was abroad at that time.
[12]
The appellant submitted that because the word ‘and’ is
used to conjoin the subsections in s 21(1)(
b
),
this means that the matters set out therein are conjunctive
requirements all of which the first respondent had to meet before
he
could acquire parental responsibilities and rights in respect of the
minor child. The appellant sought to rely on the judgment
in
RRS
v DAL
,
[3]
where
the court held that ‘[t]he applicant must meet all these
requirements to qualify for automatic parental responsibilities
in a
minor’. On the contrary, the first respondent contended that
the requirements in the subsections were simply categories
of matters
which a court had to consider before coming to a conclusion.
[13]
The court a quo found it unnecessary to make a determination on the
correct interpretation to be placed on the section because
it found
ultimately that even if the matters referred to in s
21(1)(
b
)(i)-(iii)
were self- standing and distinct requirements, the first respondent
had met them all. In coming to this conclusion, the
court a quo
reasoned as follows: a consideration of sections 21(1)(
b
)(ii)
and (iii) required that a court consider the facts, exercise a value
judgment and come to a conclusion; in doing so a court
would have to
consider a wide range of circumstances because the language used in
those subsections was deliberately broad permitting
of a range of
considerations on which minds may differ and the exercise of a value
judgment may determine a different outcome and,
such as an exercise
does not equate to a judicial discretion.
[14]
I am unable to fault the reasoning of the court a quo. Determining
whether or not an unmarried father has met the requirements
in s
21(1)(
b
)
is, in my view, an entirely factual enquiry. It is a type of matter
which can only be disposed of on a consideration of all the
relevant
factual circumstances of the case. An unmarried father either
acquires parental rights or responsibilities or he does
not. Clearly,
judicial discretion has no role in such an enquiry. For all these
reasons, I also deem it unnecessary to rule on
whether the
requirements set out in s 21(1)(
b
)
ought to be determined conjunctively or whether these are simply
categories of facts which a court must consider before concluding
whether an unmarried father has acquired full parental
responsibilities and rights in respect of a minor child or not.
[15]
I now turn to consider whether, on the facts and peculiar
circumstances of this matter, the first respondent has satisfied
the
requirements in s 21(1)(
b
).
[16]
It is not in dispute that the first respondent consented to be
identified as S’s father. Accordingly, the requirement
in s
21(1)(
b
)(i)
has been met. In contradistinction, a great deal of the debate before
us related to whether the first respondent had contributed
adequately
or at all, or had attempted in good faith to contribute over a
reasonable period, towards the upbringing or expenses
in
connection with the maintenance of S as contemplated in ss
21(1)(
b
)(ii)
and (iii).
[17]
Consequently, it behoves of this court to consider the meaning that
was intended by the legislature in including phrases or
words such as
‘contribute(s)’ and ‘for a reasonable period’
in the section. In simple terms, what needs
to be determined is the
nature and extent of the contribution required for the child’s
upbringing and for expenses in respect
of the child in order for an
unmarried father to acquire full parental responsibilities and
rights.
[18]
A good starting point is a consideration of the purpose of the
legislation. It will be recalled that at common law unmarried
fathers
had no rights in respect of their children if they were born out of
wedlock. As a consequence of the judgment in
Fraser
v Children’s Court, Pretoria North
,
[4]
The
Natural Fathers of Children Born out of Wedlock Act 86 of 1997 was
promulgated which enabled unmarried fathers to obtain parental
rights
in respect of their children by way of an application to court.
[19]
Section 21 the Act was specifically intended to provide for the
automatic acquisition of parental right by an unmarried father
if he
was able to meet certain requirements. Clearly, the intention was to
accord an unmarried father similar rights and responsibilities
in
relation to his child to those of the father who was married to the
child’s mother. To my mind, this was intended to promote
both
the equality guarantee in s 9 and, more importantly, the right of a
child to parental care as envisaged by s 28 of the Constitution.
[20]
It bears mention that s 20 of the Act, which accords automatic full
parental responsibilities and rights to married fathers,
makes no
stipulation whatsoever that such fathers should contribute towards
the upbringing or expenses of their children. On the
other hand, s
21(1)(
b)
requires
an unmarried father to contribute or make an attempt in good faith to
contribute towards the upbringing and the expenses
in connection with
the maintenance of the child for a reasonable period. It is clear
that the legislature draws a distinction between
married and
unmarried fathers. However, it is important in my view for the court
whilst interpreting this section, not to unfairly
discriminate
against the unmarried father by demanding what the appellant refers
to as ‘significant or reasonable contributions’.
There is
a real danger of finding that an unmarried father has not
automatically acquired rights and responsibilities in respect
of a
child due to factors entirely unrelated to his ability and commitment
as a father.
[21]
It is significant that the word ‘contribute(s)’ in ss
21(1)(
b
)(ii)
and (iii) is not qualified in any way. Clearly, the legislature
deliberately omitted to prescribe that the contributions must,
for
example, be reasonable, significant or material. It is also clear
that the word ‘contribute(s)’ in the section
is in the
present continuous tense which conveys, in my view, that whatever the
unmarried father contributes must be of an on-going
nature. As the
section stipulates that the contributions or attempts must endure for
a reasonable period, what constitutes a reasonable
period in the
circumstances must be determined with reference to inter alia the age
of the child and the circumstances of the parties
at the time the
determination is made.
[22]
In the light of what I have stated above, I align myself completely
with the observation by the court a quo that the concept
of a
contribution or an attempt in good faith to contribute to the child’s
upbringing for a reasonable period are ‘elastic
concepts and
permit a range of considerations culminating in a value judgment as
to whether what was done could be said to be a
contribution or a good
faith attempt at contributing to the child’s upbringing over a
period which, in the circumstances,
is reasonable’.
[5]
[23]
In support of the contention that the first respondent never met the
requirement in s 21(1)(
b
)(ii),
the appellant contends inter alia, that: the first respondent was not
present at the birth of S; he was not a willing father
from the day
he heard of the appellant’s pregnancy; S only visited first
respondent’s parents’ home twice and
that his parents
only visited the appellant’s home on two occasions; although it
was agreed that the first respondent would
visit S for 40 minutes per
visit twice a week, the first respondent’s visits to S were
never more than 20 to 30 minutes in
duration; and that the first
respondent abuses drugs and alcohol, is violent, aggressive and
follows a hedonistic lifestyle and
on one occasion came to visit S
whilst in possession of a firearm.
[24]
In my view most of these assertions by the appellant, in particular
those allegedly relating to the first respondent’s
conduct, are
irrelevant to the requirement in ss 21(1)(
b
)(ii).
The first respondent has demonstrated that at all material times he
was willing to be involved in S’s wellbeing and
upbringing, and
that all his efforts at fatherhood were actively frustrated by the
appellant who had received legal advice during
pregnancy that,
firstly, she should not make it easy for the first respondent to have
an influence over her and S’s life,
and secondly, should depart
for England within three months of the birth so that she could be
‘free’ and the first
respondent could have no control
over or legal claim to her and S’s lives. It is also clear that
the appellant was deeply
upset by the termination of her relationship
with the first respondent. This was exacerbated by the fact that he
had a new girlfriend.
[25]
It is not disputed that the first respondent accompanied the
appellant to an early medical scan after learning of her pregnancy.
However, after the first three months of the pregnancy, the appellant
refused to allow the first respondent to attend any further
scans and
prevented him from attending her doctor’s visits.
Significantly, the appellant refused to allow the first respondent
to
be present at S’s birth and insisted instead on having her
sister present as her birthing partner.
[26]
Once the appellant and S were home, the appellant and the first
respondent agreed that he would visit on a Tuesday and a Thursday
for
40 minutes per visit. He thereafter visited the infant on a regular
basis and the appellant allowed him to have contact with
the child.
From the evidence it is clear however that the first respondent
wanted more contact with S than the appellant was prepared
to allow.
This is borne out, for example, in a sms message which the first
respondent sent to the appellant shortly before his
departure to the
United States of America in November 2012, in which he stated he was
even prepared to sit in the garden with S
if the appellant was
prepared to allow this, and that he wished to come visit him on the
following Saturday at 10h00. The situation
was also exacerbated by
the fact that the appellant was of the view that she was doing the
first respondent a favour by allowing
him to visit his son.
[27]
The fact that the first respondent visited and interacted with S
regularly, introduced him to his extended family and took
out an
endowment policy to cater for S’s future upbringing are in my
view contributions which first respondent made towards
S’s
upbringing prior the child’s removal to England in November
2012.
[28]
I accordingly hold that the court a quo was correct in finding that
the first respondent had indeed met what is required by
section
21(1)(
b
)(ii).
[29]
With regard to the requirement in s 21(1)(
b
)(iii)
concerning the contribution towards expenses related to the
maintenance of the child for a reasonable period, this must be
considered against the backdrop of two important factors, namely that
s 21(2) of the Act makes it plain that this requirement does
not
affect the duty of a father to contribute towards the maintenance of
the child; and secondly that the extent and nature of
the
contribution is again unqualified in the legislation. Thus the
submission by the appellant that the contribution by the
first
respondent was insignificant and that it had to be viewed in the
context of maintenance as envisaged in the
Maintenance Act 99 of 1998
is clearly misconceived.
[30]
It is not in dispute that the first respondent purchased certain
items for S including a heater, a pram, a car seat, clothing
as well
as nappies and other necessities. He also built a changing table for
S with his own hands as he wanted him to have something
special and
personal from his father. The appellant’s response to all of
this was either that the money used for the purchase
was from the
first respondent’s parents or that the handmade changing table
was a mere cost-saving measure by the first respondent,
and that the
table was not as convenient as the one that could be purchased in a
shop.
[31]
It is noteworthy that the first respondent offered to put the child
on his medical aid, which offer was declined by the appellant.
Similarly, the appellant failed to provide her banking account
details to the first respondent when he asked for them so that he
could deposit money into her account.
[32]
In any event, the appellant’s version is that the first
respondent contributed approximately 11.5 per cent of S’s
expenses which translated to approximately R14 000 up to the
time he was removed from the Republic. As the court a quo found,
correctly in my view, this can hardly be described as an
insubstantial contribution to expenses in relation to the maintenance
of S over a period of four months.
[33]
I am satisfied that the offers or attempts made by the first
respondent to contribute towards the expenses of S were all made
in
good faith. As the appellant declined to accept these offers, she
cannot now say that the first respondent made an insufficient
contribution to try to bring himself within the ambit of
section
21(1)(
b
)(iii).
[34]
Accordingly, I find that the court a quo was correct in concluding
that the first respondent contributed to expenses in connection
with
the maintenance of the child, as envisaged in
s 21(1)(
b
)(iii).
[35]
The contention by the appellant that the first respondent never
exercised his rights of custody, if any, at the time of the
child’s
removal as the first respondent was abroad at the time, is so legally
untenable that it must be rejected outright.
The undisputed evidence
is that the first respondent left the country temporarily.
Furthermore, the appellant well knew that it
was always his intention
to return to the country. It does not, in my view, assist the
appellant’s case that the first respondent
only came back a few
days after the scheduled return date.
[36]
The first respondent demonstrated sufficiently that he had acquired
full parental responsibilities in respect of S by November
2012. As
co-guardian of S, the first respondent’s consent was therefore
required prior to the removal of S from the Republic
by the
appellant.
[37]
As it is common cause that the appellant had neither the first
respondent’s consent nor the consent of a competent court
to
remove S from the Republic when she did, it follows ineluctably that
the appellant acted in breach of the first respondent’s
parental rights and responsibilities when she did so.
[38]
I am accordingly satisfied that the court a quo was correct in
answering the question posed by the English court in the negative.
[39]
I now turn to the issue of costs. It is so that generally in cases
involving children, for example those concerning rights
of access,
courts frequently make an order that parties must pay their own costs
because they are considered to be acting in the
best interests of the
children as envisaged by s 28 of the Constitution. I have however
taken into consideration the fact that
in the present proceedings the
application in the court a quo was brought at the behest of the
English court and that the first
respondent was put to the expense of
bringing the proceedings in order to assist the English court in
resolving a difficult issue
relating to custody rights pertaining to
the child. Essentially this case revolved around the best interests
of S to have access
to her biological father. The appellant adopted a
deliberately difficult and obstructive approach throughout this
litigation. In
addition, she introduced scurrilous and vitriolic
matters about the first respondent which were completely irrelevant
to the issue
for determination. Undeterred by the finding of the
court a quo, she has persisted in the present appeal with her
frivolous claims
with the sole purpose of denying the appellant his
parental rights to S. Undoubtedly her conduct deserves serious
censure from
this court as it borders on abuse of the court process.
In the circumstances, it is appropriate that the appellant should pay
the
costs of appeal.
[40]
In the result, I make the following order:
The
appeal is dismissed with costs.
_________________
B
H MBHA
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: J Julyan SC (with her S Clarence)
Susan
Abro Attorney
c/o
Webbers, Bloemfontein
For
First Respondent: A M Annandale SC
Ness
Harvey Attorneys
c/o
Honey Attorneys, Bloemfontein
[1]
Article
3 of the Hague Convention reads as follows:
‘
The
removal or the retention of a child is to be considered wrongful
where –
(a)
it is in breach of rights of custody attributed to a person, an
institution or any other body, either jointly or alone, under
the
law of the State in which the child was habitually resident
immediately before the removal or retention; and
(b)
at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised
but for the removal or retention.
The
rights of custody mentioned in sub-paragraph a above, may arise in
particular by operation of law or by reason of a judicial
or
administrative decision, or by reason of an agreement having legal
effect under the law of that State.’
Article
3 must be read together with Article 5 which defines ‘rights
of custody’ as including rights relating to the
care of the
child and in particular, the right to determine the child’s
place of residence.
[2]
Section
18 of the Act in relevant parts, reads as follows:
‘
18(2)
The parental responsibilities and rights that a person may have in
respect of a child, include the responsibility and the
right –
.
. .
(
c
)
to act as guardian of the child;
.
. .
(3)
. . . a parent . . . who acts as guardian of a child must –
.
. .
(
c
)
give or refuse any consent required by law in respect of the child,
including –
.
. .
(iii)
consent to the child’s departure or removal from the Republic;
(iv)
consent to the child’s application for a passport;
.
. .
(5)
Unless a competent court orders otherwise, the consent of all the
persons that have guardianship of a child is necessary in
respect of
matters set out in subsection (3)(
c
).’
[3]
RRS
v DAL
(22994/2010)
[2010] ZAWCHC 618
(10 December 2010) at page 13 lines 2-4.
[4]
Fraser
v Children’s Court, Pretoria North
1997
(2) SA 261 (CC).
[5]
Para
35 of the judgment a quo.