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M.A.M v A.V (born N) (2901/10) [2010] ZAWCHC 228 (23 November 2010)

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Family Law
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Brief Summary

Parental Rights — Definition of 'Parent' — Application for recognition of co-holders of parental responsibilities and rights — Applicant, a biological father, sought parental rights under the Children's Act, 38 of 2005, despite respondent's claim of exclusion based on alleged rape — Court determined that the respondent could not rely on the exclusionary provision as the applicant had fulfilled the requirements for parental responsibilities and rights, and had been recognized as the child's father for nearly a decade — Respondent's objection based on the definition of 'parent' in the Act was dismissed, affirming the applicant's parental status.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were brought in the Western Cape High Court, Cape Town, as an application in which the applicant sought an order that he and the respondent be recognised as co-holders of parental responsibilities and rights in respect of a minor child, M (born 23 May 2000). The applicant’s substantive relief was framed with reference to the Children’s Act 38 of 2005, including claims for care, contact, and co-guardianship, subject to detailed residence, decision-making, and contact provisions set out in the notice of motion.


The parties were M A M as applicant and A V (born N) as respondent. The application concerned the legal recognition and structuring of parental status and parental responsibilities and rights between unmarried parents, in circumstances where the respondent alleged that the child had been conceived through rape by the applicant, and the applicant denied that allegation.


Procedurally, the matter came before the court for the determination of points in limine, which the parties agreed would be argued and determined on the basis of legal objections akin to an exception. A prior order dated 17 May 2010 had postponed the matter for the hearing of oral evidence and recorded that the affidavits would stand as pleadings, subject to supplementation in accordance with the rules of court. The respondent initially challenged the procedural approach and urgency, but the urgency contention was not persisted with after the court expressed a view that matters concerning children are inherently urgent.


The general subject-matter of the dispute was the applicant’s attempt to secure judicial recognition and regulation of his parental status and role in the child’s life under the Children’s Act, and the respondent’s resistance grounded primarily in the statutory exclusionary definition of “parent” where a child is conceived through rape.


2. Material Facts


It was common cause that, but for the allegation of rape at conception, the applicant would have acquired parental responsibilities and rights under section 21 of the Children’s Act, governing unmarried fathers. The papers also disclosed facts demonstrating that, for almost ten years, the applicant had functioned in practice as the child’s father and had been treated as such by the respondent and the child.


The court identified the following factual features, drawn from the affidavits, as demonstrating the respondent’s recognition of the applicant as the child’s father since birth. By consent, the applicant was registered as the child’s father on the birth certificate. The applicant had always contributed to the child’s maintenance requirements since birth. There was a history of agreed contact between the applicant and the child since birth. The applicant participated in major decisions regarding the child’s upbringing until approximately 2008, when the parties’ relationship began to deteriorate. The applicant was involved, as the child’s father, in consultations with professionals concerning the child’s developmental needs.


In an interlocutory application, the respondent expressly stated that it was not disputed that the applicant had done what was required to qualify under section 21 for the acquisition of parental responsibilities and rights in terms of that section. The court considered this significant in evaluating the respondent’s later reliance (from February 2010 onwards) on the allegation of rape as a basis to deny parental status.


A key disputed fact in the broader litigation was the respondent’s allegation that the applicant raped her at the time of the child’s conception, which the applicant did not concede. However, for purposes of the in limine determinations, the court treated it as common cause that the dispute existed, and focused on whether, given the common cause history of recognition and parenting, the respondent could rely on the statutory exclusion to defeat the applicant’s claim under section 21 at this stage.


Regarding the child’s residence, the applicant initially sought an order tied to a psychologist’s recommendation, but during argument conceded, for purposes of the application, that the child would reside primarily with the respondent, with corresponding contact to the applicant.


3. Legal Issues


The central legal questions for determination in limine were framed by agreement between the parties.


The first question was whether the respondent was entitled to rely on the exclusionary provision in the definition of “parent” in section 1 of the Children’s Act, which excludes “the biological father of a child conceived through the rape of … the child’s mother”, in order to prevent the applicant from being treated as a parent for purposes of the Act (including section 21).


The second question was whether, if the applicant was to be treated as having full parental responsibilities and rights, the respondent could be compelled to enter into a parenting plan with the applicant.


A third question, concerning the onus to prove or disprove the allegation of rape, was agreed to arise only if the court found the respondent entitled to rely on the exclusionary definition. Because the first two points were decided against the respondent, the third issue did not require determination.


The dispute involved questions of law (statutory interpretation and the interaction of sections 1, 21, 22, and 33 of the Children’s Act), together with an explicit application of law to common cause facts (the child’s lived experience and the history of parental functioning and recognition). The court’s approach also involved a value judgment informed by constitutional norms, particularly the paramountcy of the child’s best interests.


4. Court’s Reasoning


The court first dealt with the respondent’s procedural contention that, despite the prior order that affidavits would stand as pleadings, only those portions that would have formed part of pleadings in action proceedings should be considered before evidence was led. The respondent relied on the general principle that evidence should not be pleaded, referring to authority on pleadings. The court rejected the contention, holding that the respondent had agreed that the affidavits would stand as pleadings, and that nothing in the earlier recordals reserved a right to limit the affidavits in the manner contended for. The court was satisfied that the entire contents of the affidavits and annexures stood as pleadings.


On the first in limine issue, the court stated that it was not necessary to make a “blanket” determination of the general scope of the rape-based exclusion in the Act wherever the word “parent” appears, because the matter could be resolved on the particular circumstances and the child-centred constitutional approach the court was required to adopt.


The court emphasised the constitutional setting for interpreting legislation, citing the requirement that legislation be read in light of the Constitution. It identified as relevant section 28(1) (a child’s right to parental care), section 28(2) (the paramountcy of the child’s best interests), section 10 (dignity), and section 36 (limitations). The court further referred to the statutory injunction in section 6(2) of the Children’s Act requiring courts in proceedings concerning a child to respect and fulfil the child’s rights in the Bill of Rights and to apply the best interests standard, subject to lawful limitation.


In considering the respondent’s submission that the case required balancing the child’s rights against the respondent’s rights (described as a “nuanced approach”), the court adopted the constitutional framework emphasising child-sensitivity and the independent dignity and interests of children. It relied on Constitutional Court guidance that the child’s interests must receive appropriate weight and that the “sins and traumas” of parents should not be visited on children. This was linked to the court’s role as upper guardian of minors, with wide powers to determine what is in the child’s best interests on the facts before it.


Applying those principles, the court placed decisive emphasis on the common cause facts that, for nearly a decade, the respondent had asserted and accepted the applicant as the child’s parent in every sense; the applicant had in fact exercised full parental responsibilities and rights; and, most importantly, the child himself had throughout his life treated and regarded the applicant as his father. On these facts, the court concluded that it could not be in the child’s best interests, which are paramount, to exclude the applicant from the operation of section 21 by allowing reliance on the exclusionary definition. The court acknowledged that a different case on different facts might yield a different conclusion, but held that on the common cause facts the respondent’s reliance on the exclusion should not prevail at this stage.


On the second in limine issue, the respondent argued that she could not be compelled to enter into a parenting plan even if the applicant had parental responsibilities and rights, relying on section 22 of the Act. The court reasoned that section 22 concerns agreements by which a person who already holds parental responsibilities and rights may confer responsibilities and rights on a biological father who does not have responsibilities and rights under sections 20 or 21 or by court order. Because it was common cause that the applicant otherwise qualified under section 21, section 22 did not govern the parties’ position.


The court held that section 33 was the applicable provision, as it deals with parenting plans between co-holders of parental responsibilities and rights. The court stressed that section 33(2) requires co-holders experiencing difficulties to seek to agree on a parenting plan before approaching a court, and it interpreted the provision as permitting court intervention where attempts to agree have failed, including where a co-holder refuses to engage. The court rejected the notion that the respondent could unilaterally decline co-parenting as a matter of discretion once co-holdership existed. It further noted that section 33 must be read with section 21(4), which provides that section 21 applies irrespective of whether the child was born before or after the commencement of the Act, and reasoned that it would undermine section 21’s substantive effect if section 33 were treated as inapplicable in such circumstances.


On the facts, the court found it was clear that the applicant was not seeking to impose an agreed plan, but rather sought the court’s intervention in terms contemplated by section 33(2) to determine the exercise of responsibilities and rights where agreement could not be reached, particularly after engagement with professionals had not resolved matters.


Because the first two points in limine failed, the court held it was unnecessary to determine the third point regarding onus in relation to the rape allegation.


5. Outcome and Relief


The court dismissed the respondent’s first two points in limine and granted declaratory and procedural relief.


The court ordered that the respondent was not entitled to rely on the exclusionary provision in the definition of “parent” in section 1 of the Children’s Act in the circumstances of this matter. The court further ordered that the respondent can be compelled to enter into a parenting plan with the applicant in respect of the minor child.


The costs incurred in the determination of the points in limine were ordered to stand over for later determination.


Cases Cited


Ahlers N.O. v Snoeck 1946 TPD 590.


Du Toit v Du Toit 1958 (2) SA 354 (D and CL).


Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC).


J v J 2008 (6) SA 30 (C).


Terblanche v Terblanche 1992 (1) SA 501 (W).


AD and DD v DW and Others (Centre for Child Law as Amicus Curiae; Department for Social Development as Intervening Party) [2007] ZACC 27; 2008 (3) SA 183 (CC).


S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC).


Legislation Cited


Children’s Act 38 of 2005, including sections 1 (definition of “parent”), 6(2), 18(2)(a), 18(2)(b), 18(2)(c), 18(3), 18(4), 18(5), 21, 21(4), 22, 33, 33(2), 33(5), and 26 (referenced in section 21(1)(b)(i)).


Constitution of the Republic of South Africa, 1996, including sections 2, 10, 28(1), 28(2), 36(1), and 36(2).


Rules of Court Cited


No specific rule of court was cited by number, although the order of 17 May 2010 recorded that the pleadings could be supplemented and/or augmented “in accordance with the rules of court”.


Held


The court held that, on the common cause facts showing long-standing recognition of the applicant as the child’s father, the applicant’s consistent performance of parental responsibilities, and the child’s own recognition of the applicant as father, it was not in the child’s best interests to permit the respondent to rely on the rape-based exclusion in the statutory definition of “parent” to exclude the applicant from the operation of section 21.


The court held further that, once the applicant was treated as a co-holder of parental responsibilities and rights, the respondent could be compelled to engage in the statutory parenting plan process under section 33, and that section 22 did not apply because it concerns situations where the biological father lacks responsibilities and rights under sections 20 or 21 or by court order.


The court therefore dismissed the first two points in limine and made orders reflecting those conclusions, with costs reserved for later determination.


LEGAL PRINCIPLES


Statutory interpretation in matters affecting children must be conducted within the constitutional framework, with courts promoting the spirit, purport, and objects of the Bill of Rights, and giving effect to the paramountcy of the child’s best interests under section 28(2) of the Constitution.


In proceedings concerning children, the court acts as upper guardian and must consider and evaluate the relevant facts placed before it to determine what outcome best serves the child’s interests, exercising wide powers to ensure that the child’s rights and welfare are not subordinated to procedural or formalistic constraints.


The child’s rights and interests are to be treated as independently significant; children must not be treated as mere extensions of their parents, and the harms and traumas of parents should not mechanically be visited upon children in a manner that undermines the child’s welfare and dignity.


Where co-holders of parental responsibilities and rights experience difficulty in exercising those responsibilities and rights, section 33 of the Children’s Act contemplates an obligatory attempt to reach a parenting plan prior to court intervention, and permits court intervention where such attempts fail, including due to refusal to engage, with professional assistance and mediation mechanisms forming part of the statutory scheme.


Section 22 of the Children’s Act concerns agreements conferring responsibilities and rights on a biological father who does not already hold them under sections 20 or 21 or by court order, and is not applicable where a father qualifies for responsibilities and rights under section 21.

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[2010] ZAWCHC 228
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M.A.M v A.V (born N) (2901/10) [2010] ZAWCHC 228 (23 November 2010)

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Certain
personal/private details of parties or witnesses have been redacted
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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE
HIGH COURT, CAPE TOWN)
Case No 2901/10
In the matter between:
M
A M
...........................................................................................................................
.
Applicant
and
A V
(born
N)
…............................................................................................................
Respondent
Court:
CLOETE, AJ
Heard:
18
and
22
November
2010
Delivered: 23
November
2010
ADV.
FOR
APPLICANT:
Adv
S van Embden et Adv J I, McCurdie
INSTRUCTED BY:
Craig Schneider & Associates
ADV. RESPONDENT:
Adv DAJ Uijs, SC et Adv R Maass
INSTRUCTED BY:
Michael Ward Attorneys
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No. 2901/2010
In
the matter between:
M
A M
…..........................................................................................................................
Applicant
and
A
V (born N)
…...........................................................................................................
Respondent
JUDGMENT
ON POINTS IN LIMINE DELIVERED ON 23 NOVEMBER 2010
CLOETE,
AJ
[1]
This is an application wherein the applicant seeks an order directing
that he and the respondent are recognised as co-holders
of parental
responsibilities and rights in respect of M, a male minor child born
on 23 May 2000. The relief sought by the applicant
includes rights of
co-guardianship as provided for in ss 18(2)(c), 18(3), 18(4) and
18(5) of the Children's Act, 38 of 2005 ("the
Act"), as
also rights of care and contact as referred to in s 18(2)(a) and (b)
of the Act, but subject to the residence, decision­making
and
contact provisions set out in the notice of motion.
[2]
With regard to M's residence, the applicant initially sought an order
that M would reside with such party as may be recommended
by Mr
Bernard Altman, clinical psychologist, and that the party with whom M
does not primarily reside shall have contact with him
in the terms
set forth in the notice of motion. During the course of argument, the
applicant conceded, for purposes of this application,
that M shall
reside primarily with the respondent, and that accordingly the
contact claimed during school terms as set out in paragraph
2.1.4 of
the notice of motion, should apply to the applicant.
[3]
The parties agreed that the following issues would be argued (and
thus determined) in limine, on the basis of the legal objection
of an
exception:
[3.1.]
Whether the respondent is entitled to rely on the exclusionary
provision in regard to the definition of a 'parent' in section
1 of
the Act.
[3.2.]
in the event that this court declares that the applicant is a
'parent' with full parental rights and responsibilities, whether
the
respondent can be compelled to enter into a parenting plan with the
applicant in respect of M.
J
[3.3.]
In the event that the court rules that the respondent is entitled to
rely on the exclusionary provision as referred to in
[3.1] above,
which party bears the onus to prove or disprove the respondent's
allegation that she was raped by the applicant.
[4]
The parties further agreed that the question of the onus referred to
in [3.3] above only arises once this court has determined
the issues
as set out in [3.1] and [3.2].
[5]
It should be noted that the applicant, in agreeing to the
determination in limine of the above issues, has not in any way
conceded
that he indeed raped the respondent.
[6]
Before turning to the in limine issues, it is necessary to deal with
certain contentions raised by the respondent relating to
the
procedural aspects of this application. In essence, the respondent
argues that the applicant adopted the incorrect procedure
in bringing
this matter before court urgently and/or by way of application.
[7]
On the issue of urgency, and after this court expressed the strong
view that all matters concerning children are, by their very
nature,
urgent, respondent did not persist with this contention, as is
apparent from the respondent's heads of argument which were
delivered
after argument on the first day.
[8]
The respondent also argues that the three issues in limine must be
determined
'as
if the respondent has excepted to the applicant's claim, as pleaded,
and the applicant had excepted to the respondent's plea,
as pleaded'.
However,
as became apparent during the course of argument, the first two
points in limine really amount to an exception taken by
the
respondent to the applicant's claim.
[9]
In terms of a previous order of this court dated 17 May 2010, and by
agreement between the parties it was ordered,
inter
alia,
that:
[9.1.]
The application was postponed to 18 November 2010 for the hearing of
oral evidence;
[9.2.]
The
affidavits filed by the parties shall stand as pleadings in this
matter,
subject
to the right of either party to supplement and/or augment the
pleadings in accordance with the rules of court;
{my
emphasis)
[9.3.]
Respondent reiterated her recordais as contained in a previous order
dated 26 February 2010, namely, that she does not concede
that the
matter warrants an urgent hearing and reserves the right to argue the
question of urgency, the procedure by which applicant
approached this
court, and any question of separation of issues.
[10]
Respondent submitted that is
'an
obvious and accordingly implied term of the agreement
[i.e.
that contained in the Order of 17 May 2010] ...
that
the only portions of the affidavits which may be taken into account
by anyone before evidence is led are those parts which
would have
formed part of the pleadings, had the matter come before this ...
court by way of an action duly instituted by the applicant'.
[11]
In support of this submission, respondent relies on the legal
principle that evidence should not be pleaded. Respondent's counsel

referred the court to the matters of
Ahlers
N.O. v Snoeck
1946
TPD 590
at 594 where this principle was set out, as also
Du
Toit v Du Toit
1958
(2) SA 354
(D and CL) at 356C-D.
[12]
In
Du
Toit
supra,
in a declaration claiming a judicial separation on the ground that
cohabitation had become intolerable, the plaintiff had
made averments
relating to a prior action which she had instituted against the
defendant on the ground of adultery but which she
had withdrawn when
the parties had become reconciled. The defendant excepted to these
paragraphs in the declaration as being bad
in law and insufficient to
sustain the action in whole or in part. Firstly, the exception
related to a declaration, which is a
pleading and secondly, the court
found that the paragraphs objected to did not amount to the pleading
of evidence. The
Du
Toit
matter
is thus entirely distinguishable from the instant matter.
[13]
Here, the respondent chose to agree that the affidavits filed by the
parties would stand as pleadings. The respondent's recordals
as
contained in the previous order of 26 February 2010 do not in any way
translate into the stance now adopted, namely, that the
only portions
of the affidavits which may be taken into account before evidence is
led are those parts which would have formed
part of the pleadings had
the matter come before this court by way of action. In my view, the
respondent's contention has no merit
and her submission in this
regard must fail. Accordingly, I am satisfied that the entire
contents of the affidavits (and by parity
of reasoning the annexures
thereto) shall stand as the pleadings in this matter.
WHETHER
THE RESPONDENT IS ENTITLED TO RELY ON THE EXCLUSIONARY PROVISION IN
REGARD TO THE DEFINITION OF A 'PARENT' IN
SECTION 1
OF THE
CHILDREN'S
ACT
[14
]
For the reasons which follow hereunder, I have concluded that it is
not necessary for me to make a 'blanket' finding as to whether
the
exclusionary provision of a 'parent' in
section 1
of the
Children's
Act only
has application where it is expressly stated in the Act (as
contended by the applicant), or whether wherever the words 'parent'

or 'parental' appear in the Act, a biological father of a child
conceived through the rape of the child's mother is expressly
excluded (as contended by the respondent).
[15]
It is common cause between the parties that, but for the question of
the alleged rape, the applicant would have acquired parental

responsibilities and rights in terms of s 21 of the Act. which
provides as follows:
'21.Parental
responsibilities and rights of unmarried fathers
(1)
The
biological father of a child who does not have parental
responsibilities and rights in respect of the child in terms of
section
20
(i.e.
a married father),
requires
full parental responsibilities and rights in respect of the child
-... (b) If he, regardless of whether he has lived or
is living with
the mother-
(i)
consents
to be identified or successfully applies in terms of section
26 to
be identified as the child's father
(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 to expenses
in connection with the maintenance of the child for a
reasonable
period ..."
[16]
A reading of the affidavits in this matter has enabled this court to
set out some of the ways in which the respondent recognised
the
applicant as M's father from the date of his birth:
[16.1.]
By consent between the parties the applicant is registered as M's
father on his birth certificate;
[16.2.]
The applicant has always contributed to M's maintenance requirements
since his birth;.
[16.3.]
There has been a history of agreed contact between the applicant and
M since his birth;
[16.4.]
The applicant was involved in various major decisions with regard to
M's upbringing since his birth and until approximately
2008 when the
relationship between the parties started breaking down;
[16.5.]
The applicant was involved as M's father in consulting certain
professionals in regard to Ms developmental needs.
[17]
In an interlocutory application (under case no 12660/10) the
respondent stated the following:
"It
is not disputed that the Applicant has done the things that he is
required to do to qualify in terms of section 21 of the
Act to
acquire parental responsibilities and rights in terms of that
section."
[18]
Accordingly, the irresistible conclusion is that for almost 10 years
the respondent treated and regarded the applicant as M's
father in
every sense, and chose to recognise his rights and obligations in
terms of s 21. It was only in February 2010 that respondent,
for the
first time, challenged the applicant's rights and responsibilities on
the ground of an alleged rape at the time of M's
conception.
[19]
It is also highly significant that for the duration of his young
life, M has treated and regarded the applicant as his father
in every
conceivable way.
[20]
The respondent relies on the definition of the exclusion of a
'parent' in section 1 of the Act which reads as follows:
"'Parent'
in relation to a child, includes the adoptive parent of a child, but
excludes -
(a)
the biological father of
a
child
conceived through the rape of or incest with the child's mother;"
[21]
Accordingly, says the Respondent, as M was conceived as a consequence
of rape by the applicant, the latter cannot exercise
"parental
rights and responsibilities"
as
enivisaged in s 21 of the Act as he is not and never will be able to
be a "parent" as
defined.
This is the respondent's case, notwithstanding that it is common
cause that applicant otherwise qualifies in terms of s
21 of the Act
[22]
Our Courts are now required to interpret all legislation in the
context of the provisions of the Constitution of the Republic
of
South Africa, and with due regard to the constitutional context in
which such legislation is set.
"The
Constitution is now the supreme law in our country (section 2 of the
Constitution). It is therefore the starting point
in interpreting any
legislation. Indeed, every Court must promote the spirit, purport and
objects of the Bill of Rights when interpreting
any legislation."
[See
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at 521, para 72]
[23]
This court must thus first have regard to the relevant provisions of
the Constitution which, in this matter, are the following:
[23.1.]
Section 28(1).which provides that:
'Every
child has the right ... to ... parental care';
[23.2.]
Section 28(2),which provides that:
'A
child's best interests are of paramount importance in every matter
concerning the child)
[23.3.]
Section 10, which provides that:
Everyone
has inherent dignity and the right to have their dignity respected
and protected';
[23.4.]
Section 36, which provides that:
'36(1)
The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is
reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom
(2)
Except as provided in sub-section (1) or in any other provision of
the Constitution, no law may limit any right entrenched in
the Bill
of Rights,'
[24]
Accordingly, what is required in the instant matter is to attempt to
give effect to the competing rights of M, on the one hand,
and the
respondent on the other, in this regard, s 6(2) of the Constitution
is instructive. It requires a court, in all proceedings
concerning a
child, to,
inter
alia, 'respect, protect, promote and fulfil the child's hghts as set
out in the Bill of Rights, the best interests of the
child standard
... and the rights and principles set out in this Act, subject to any
lawful limitation'.
[25]
In 2008(6) SA 30 (CPD) at 37D-38A, a full bench of this division was
of the following view:
'As
the upper guardian of minors, this court is empowered and under a
duty to consider and evaluate all relevant facts placed before
it
with a view to deciding the issue which is of paramount importance:
the best interests of the child ...
(with
reference to the matter of Terblanche v Terblanche
1992 (1) SA 501
(W) at 504C)
When
a court sits as upper guardian in a custody matter it has extremely
wide powers in establishing what is in the best interests
of minor or
dependent children ... In AD & DD v DW & Others (Centre for
Child Law as Amicus Curiae;
Department
for Social Development as Intervening party)
[2007] ZACC 27
;
2008
(3) SA 183
(CC) ...
the
Constitutional Court endorsed the view ... that the interests of
minors should not be "held to ransom for the sake of legal

niceties" and held that in the case before it the best interests
of the child "should not be mechanically sacrificed
on the alter
of jurisdictional formalism".'
[26]
Respondent's counsel referred the court to the matter of S
v
M
(Centre
for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC) at 254C and
255B, where the court stated that:
'In
practical terms, then, the difficulty is how appropriately and on a
case-by-case basis to balance the three interests as required
by Zinn
(i.e.
the well-known triadic sentencing formula of what has to be weighed
up, namely the crime, the offender and the interests of
society) ...
without
disregarding the peremptory provisions of section 28 .. the
paramountcy principle read with the right to family care, requires

that the interests of children who stand to be affected receive due
consideration. It does not necessitate overriding all other

considerations. Rather, it calls for appropriate weight to be given
in each case to a consideration to which the law attaches the
highest
value, namely, the interests of children who may be concerned.'
[27]
Respondent's counsel accordingly advocated what he referred to as
'nuanced approach' in which, so he stated,
'all
of the hghts of all of the parties should be considered'.
That
having been said however, the thrust of respondent's argument on this
point is that it is really a matter of balancing the
rights of the
minor child M against the rights of the respondent.
[28]
To my mind, and to the extent that it might be argued that the court
in
J
v J
supra
did not go far enough, the answer to the
'balancing
of rights'
argument
advanced by respondent's counsel is to be found in the very authority
to which he referred this court, namely,
S
v M
(Centre
for Child Law as Amicus Curiae) supra at 244E-246C. For sake of
brevity, I will quote the summary of what is set forth in
this
passage and which was conveniently paraphrased in the headnote at
233H-234A:
'The
ambit of section 28 of the Constitution was undoubtedly wide. The
comprehensive and emphatic language used in this section
indicated
that, just as law enforcement must always be gender-sensitive, so it
must always be child-sensitive; statutes must be
interpreted and the
common law developed in a manner that favoured protecting and
advancing the interests of children; and courts
must function in a
way that showed due respect for children's rights. Section 28 was
also to be seen as an expansive response to
South Africa's
international obligations as a State party to the UN convention on
the Rights of the Child. The four great principles
of this convention
which, as international currency, guided all policy in South Africa
in relation to children, were survival,
development, protection and
participation. What united these principles, and what lay at the
heart of section 28 was the right
of a child to be a child and to
enjoy special care.
i
J
Every
child had his or her own dignity; each child was to be
constitutionally imagined as an individual with a distinctive
personality,
and
not treated as a mere extension of his or her parents. The unusually
comprehensive and emancipatory character of section 28
presupposed
that the sins and traumas of fathers and mothers should not be
visited on their children
.'
(my
emphasis)
[29]
I agree wholeheartedly with the approach adopted by the
Constitutional Court in the aforementioned case. It is my duty as
upper guardian of M to consider the facts which are common cause in
the instant matter in deciding whether it is in
M's
best interests
for
the applicant to be recognised as a co-holder of parental
responsibilities and rights as envisaged in terms of s 21 of the Act.
[30]
Accordingly, and in the particular circumstances of this matter
where:
[30.1.]
for almost ten years the respondent has asserted and accepted the
applicant as M's parent in every sense;
[30.2.]
the applicant has, as a matter of fact, exercised full parental
responsibilities and rights; and
[30.3.]
most importantly, where M himself recognises the applicant as his
father in every sense of the word;
it
cannot be in M's best interests (which are of paramount importance)
to exclude the applicant from the provisions of s 21 of the
Act. It
may well be that another court, faced with different facts, may come
to a different conclusion: however, on the common
cause facts before
me, I am convinced that this is the right result for M,
THE
SECOND POINT IN LIMINE: CAN THE RESPONDENT BE COMPELLED TO ENTER INTO
A PARENTING PLAN WITH THE APPLICANT IN RESPECT OF M
[31]
The respondent contends that she (as the unmarried mother of M)
cannot be
"compelled"
to
enter into a parenting plan with the Applicant (as the unmarried
father of M) even if he has full parental responsibilities and

rights. She thus contends that she cannot be required to co-parent M
with the applicant, and that co-parenting is discretionary
on her
part. The Respondent relies on section 22 of the Act wherein it is
stated that:
"(1)
... The mother of
a
child
or other person who has parental responsibilities and rights in
respect of a child may enter into an agreement providing for
the
acquisition of such parental responsibilities and rights in respect
of the child as are set out in the agreement, with -
(a)
the biological father of a child who does not have parental
responsibilities and rights in respect of the child in terms of

either section 20 or 21 or by court order."
[32]
I have difficulty in understanding the respondent's contention. To my
mind, the wording of s 22 is clear, namely that, with
regard to the
biological father of a child, it only applies to a father
who
does not have
parental
responsibilities
and
rights in respect of the child in terms of either s 20 or 21 or by
court order
.
Accordingly, s 22 can never apply to the applicant.
[33]
The section of the Act which does apply is s 33 which provides,
inter
alia,
that:
'(1)
The co-holders of parental responsibilities and rights in respect of
a child may agree on a parenting plan determining the
exercise of
their respective responsibilities and rights in respect of the child.
(2)
If the co-holders of parental responsibilities and rights in respect
of a child are experiencing difficulties in exercising
their
responsibilities and rights, those persons,
before
seeking the intervention of a court
,
must first seek to agree on a parenting plan determining the exercise
of their respective responsibilities and rights in respect
of the
child.'
(my
emphasis)
[34]
The fact that s 33 of the Act was only implemented on 1 April 2010
(as was s 22), does not mean that s 33 has no application.
Section 33
must be read in conjunction with s 21(4) which provides that
'This
section applies regardless of whether the child was born before or
after the commencement of this Act'.
It
could never have been the intention of the legislature that s 21
applies regardless of whether the child was born before or after
the
commencement of the Act, but s 33 only applies with effect from the
date of commencement thereof. This would defeat the very
purpose of
giving substantive effect to the provisions of s 21.
[35]
Further, the reference in s 33(2) to
'those
persons'
must
surely be read to mean that either co-holder of parental
responsibilities and rights may approach this court in its capacity

as upper guardian of all minor children in circumstances in which
attempts to agree on a parenting plan with the other co-holder
have
failed. In
Pavel
& Skelton
:
Commentary on the
Children's Act, Juta
2005 at 3-32
the
authors state as follows:
'Looking
purely at
section 33(2)
, it seems that even if one or more of the
co-holders refuse to engage in discussions about a parenting plan,
the court can be approached,
for then an attempt at agreeing on a
parenting plan was made, even though the attempt was doomed from the
start.'
[36]
Section 33(5)
provides that, in preparing a parenting plan as
contemplated in
s 33(2)
, the parties must seek the assistance of a
family advocate, social worker or psychologist, or seek mediation
through a social worker
or other suitably qualified person.
[37]
It is common cause that the parties have sought the assistance of a
social worker (Carol Phillips) and two psychologists (Leigh
Pettigrew
and Bernard Altman) in an attempt to address how at least certain of
their parental responsibilities and rights should
be exercised:
[37.1.]
At paragraph 24.3 of the applicant's founding affidavit (p31 of the
record), he states:
'As
a result of such e-mail, I approached my attorney of record who
drafted a parenting agreement, sent it to respondent and invited
her
to attend mediation)
[37.2.]
At paragraph 54.3 (p156 of the record) the respondent deals with this
allegation as follows:
'By
now I had realised that I simply could not enter into a co-parenting
agreement with the applicant. I simply did not trust him
and, to tell
the truth, was starting to dislike him more and more. I believe that,
far from regulating
(M's)
life
and making it more structured, entering into such an agreement would
simply create more chaos'.
[38]
To my mind, it is clear that the applicant does not seek to impose an
agreed
parenting
plan on the respondent: rather, the applicant approaches this court
for the very purpose referred to in
s 33(2)
, namely, the intervention
of this court to determine the exercise of the parties' respective
responsibilities and rights in respect
of M.
[39]
It is accordingly my view that, in light of s 33(2) of the Act, and
using the wording adopted by the parties in formulating
the second
point in limine, the respondent can indeed be compelled to enter into
a parenting plan with the applicant in respect
of M.
[40]
It thus follows that the first two points raised by respondent in
limine on the basis of the legal objection of exception must
fail. As
agreed between the parties, it is accordingly not necessary for me to
deal with the third point in limine.
ORDER
[41]
In light of my findings as set out above, I make the following order:
[41.1.]
The respondent is not entitled to rely on the exclusionary provision
in regard to
the
definition of a 'parent' in section 1 of the Act;
[41.2.]
The respondent can be compelled by this court to enter into a
parenting plan with the applicant in respect of M;
[41.3.]
The costs incurred in the determination of the points in limine shall
stand over for later determination.
J
I CLOETE

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