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[2011] ZAGPPHC 3
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Erasmus v Eksteen (77910/10) [2011] ZAGPPHC 3 (11 January 2011)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 77910/10
DATE:
11/01/2011
In
the matter between:
LOUIS
LOURENS
ERASMUS
............................................................................
Applicant
and
MOUNA
EKSTEEN
...............................................................................................
Respondent
JUDGMENT
Tuchten
J
:
1.
This application concerns the primary residence of J, the 16 year old
son of the parties. The applicant moves urgently for interim
relief,
pending the final determination of the application after the Family
Advocate has investigated and reported to the court.
There was no
appearance before me on behalf of the respondent.
2.
The
parties were divorced on 15 May 1998. J's custody was awarded to the
respondent, his mother. Both parties have remarried. The
parties are
not on good terms with each other.
3.
The
case for the applicant, uncontradicted by any evidence presented by
the respondent, is that J is unhappy living in his mother's
house.
One of J's problems is, he says, that he has a bad relationship with
Mr Eksteen, his stepfather. J wants to live with his
father and his
father, having considered the matter, is of the view that J's wish to
live with him is not a whim.
4.
In
my view, the wishes of a 16 year old boy about where he would like
primarily to reside ought to be given considerable weight.
The
applicant is in a position to take primary care of J. J's evidence is
that he is unhappy living with the respondent and Mr
Eksteen. There
is, as I have mentioned, no opposition to the interim relief sought.
I have decided to come to the relief of the
applicant pendente
lite
in
relation to his place of residence. J clearly loves both his parents
and does not wish to break his bonds with his mother. There
must
accordingly be provision for contact between mother and son.
5.
The
applicant also seeks an order to create a mechanism for J to obtain
his own legal representative at the expense of the Legal
Aid Board. I
do not think that it is necessary at this stage for J to have his own
lawyer but I shall make provision in the order
for this to be done at
a later stage.
6
.
There
is however one aspect with which I wish to deal specifically. One of
the main concerns expressed by J relates to his relationship
with his
stepfather. J says he is afraid of his stepfather who, J says, has
threatened him with physical violence. This is reinforced
by the
terms of an email dated 14 August 2006 sent by Mr Eksteen to the
applicant in which Mr Eksteen says
Ek
het baie duidelik aan [J] gestel dat die volgende keer wat hy weer
huil as hy by ons aankom ek hom voor jou 'n behoorlike pak
slae gaan
gee. Ek dink hy verstaan dit so. Ek dreig nooit en doen wat ek se.
Daarom het ek nog net twee maal in 5 jaar nodig gehad
om hom pak te
gee.
Hy
begin nou met puberteit en word reeds by die skool gespot oor sy
makilke gehuil. Feit is dat ek hom gewis voor jou gaan voeter
as hy
weer huil-huil na 'n kuier by ons huis aankom.
7
.
I
am shocked by the notion that a man
in
loco parentis
might
think that it is appropriate to punish a boy at all for displaying
the fact that he is unhappy. I reserve final judgment on
this
question because I have not heard Mr Eksteen's version.
8.
But
Mr Eksteen and the respondent should take note of the following: it
is in my view open to considerable doubt that Mr Eksteen
has any
right in law to use physical violence of any kind towards J in the
process of disciplining J but it is beyond any doubt
at all that Mr
Eksteen has no right whatsoever to use physical violence towards J
for the purpose of punishing J for displaying
his feelings by crying.
Mr Eksteen should be made aware that if he carries out the threats
made in his email to the applicant dated
14 August 2006, he may well
find himself in the criminal court on a charge of assault.
9.
I
make the following order:
1.
The Family Advocate is requested to:
1.1
investigate
whether it would be in the best interests of the minor child J J A E
("J") if his primary place of residence
were transferred to
that of his father, the applicant, and, if so, what provisions should
be made for contact between J and his
mother, the respondent;
1.2
provide
a report on such investigations to the court.
2
.
Pending
the final determination by this court of the questions posed in
paragraph 1 of this order:
2.1
J's
primary place of residence will be with the applicant;
2.2
the
respondent will have the right to have contact with J every alternate
weekend from Friday at 17h00 to Sunday at 17h00, every
alternate
short school holiday, half of each long school holiday and every
alternate Christmas and also reasonable telephonic contact.
3.
The
applicant may approach the Legal Aid Board with the request that a
legal representative be appointed to represent J in these
proceedings.
4.
The
determination of the questions raised in paragraph 1 of this order is
postponed sine die . Both parties are given leave to deliver
further
affidavits. The applicant's further such affidavit must be delivered
no later than three weeks after the report of the
Family Advocate has
been filed. Thereafter further affidavits by the parties may be
delivered within the time periods provided
for answering and
replying affidavits respectively.
5
.
The
attorney for the applicant is directed to serve copies of this
judgment on both the respondent and Mr Eksteen and draw their
attention to what is said in paragraphs 6 to 8 of the judgment.
6
.
The
costs incurred to date are reserved for decision by the court which
determines the questions raised in paragraph 1 of this order.
NB
Tuchten
Judge
of the High Court
11
January 2011