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[2011] ZAGPPHC 61
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Ncube v Duba, Ncube v Duba (23010/2004, 51561/2010) [2011] ZAGPPHC 61 (20 April 2011)
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REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
No. 23010/2004
DATE:20/04/2011
In
the matter between:-
MOLOKE
BENNET
NCUBE
..........................................................................................
Applicant
and
GIVEN
PITSI
DUBA
.................................................................................................
Respondent
and
CASE
No. 51561/2010
MOLOKE
BENNET
NCUBE
..........................................................................................
Applicant
and
GIVEN
PITSI
DUBA
.................................................................................................
Respondent
JUDGMENT
Van
der Byl, AJ:-
Introduction
[1]
This is a joint judgment in the above two matters, Case No.
23010/2004 and Case No. 51561/2010, both of which served before
me on
24 February 2011, 25 February 2011 and 28 March 2011.
[2]
It is common cause that the parties were married to each other during
1994 and that a child, N D ("the child'), was born
out of their
marriage on 21 June 1997.
[3]
The parties were, after the Respondent together with the child left
the common home on 18 May 2004, divorced on 6 March 2008
on the
occasion of which a deed of settlement concluded between the parties
was made an order of Court in terms of which, inter
alia, primary
residence of the child was vested in the Respondent and certain
rights of contact with the child were granted to
the Applicant as the
father of the child.
[4]
The two matters before me are a sequel to a protracted, unfortunate
and bitter, if not tragic, history during which six court
orders were
during the period 7 March 2006 to 25 February 2011 granted against
the Respondent in terms of which she was in effect
ordered to allow
the Applicant contact with the child.
[5]
The six order concerned orders were granted on 7 March 2006 by Patel
J, on 9 May 2006 by Murphy J, on 6 March 2008 by Shongwe
J, on 12
August 2010 by Mavundla J, on 7 October 2010 by Webster J and on 25
February 2011 by myself.
[6]
As will be pointed out below, the Applicant was, despite these
orders, during a period of almost seven years, apart from sporadic
telephonic contact, allowed some contact with the child on only three
occasions, namely, unsupervised on 21 June 2009 and, on the
insistence of the Respondent, in her presence on 20 August 2010 and
21 August 2010.
[7]
In Case No. 23010/2004 the Applicant seeks, against the background
of, according to him, numerous futile attempts to obtain
reasonable
access to the child, an order, in addition to the usual order of
costs, in terms of which the aforesaid deed of settlement
is varied
so as to vest primary residence of the child in him.
[8]
In Case No. 51561/2010the Applicant seeks, based on the Respondent's
failure or refusal to comply, particularly, with the court
order
granted by Mavundla J on 12 August 2009, an order, in addition to the
usual order of costs, in terms of which the Respondent
is found to be
in contempt of Court for non-compliance with that order.
[9]
The allegations on which such relief are claimed in these matters are
in many respects disputed by the Respondent which call
for a full and
extensive exposition of the facts and allegations relied upon by the
parties in support of, and in opposition to,
the relief so claimed.
[10]
As will be pointed out below, the evidence in Case No. 51561/2010
("the contempt application") is a continuation
and part of
the events referred to in Case No. 23010/2004 ("the variation
application").
[11]
I will accordingly jointly deal with all the evidence as it emerged
from both matters.
[12]
I will deal seriatim with the circumstances under which each of the
six orders in question was granted.
Circumstances
under which the various orders were granted
[13]
Firstly, there is the interim order granted by Patel J in terms of
Rule 43 on 7 March 2006.
[14]
According to the Applicant -
(a)
he, after the Respondent left the common home, issued a summons
against her for divorce under Case No. 23010/2004 in which
he
claimed, in addition to a decree of divorce, an order that custody
and control over the child be granted to the Respondent subject
to
his right of reasonable access to the child, and the Respondent in
turn claimed, as was evident from her plea filed in the divorce
proceedings, an order that such access should be supervised "as
she may alloW (para 5 and 6 of Applicant's founding affidavit
in the
variation application, record pp. 8 and 9);
(b)
the Respondent since she left the common home refused to give him her
home address and furthermore refused him any contact with
the child
and even took a cell phone away which he had given to the child so as
to maintain telephonic contact with the child (para
7 and 12 of that
affidavit, record pp. 9 and 12);
(c)
he then, on advice of his attorney, awaited a report from the Family
Advocate who interviewed him and the Respondent on one
occasion
whereafter the Respondent, despite various requests by the Family
Advocate, failed to attend any further interviews and
to make the
child available for such interviews so that the Family Advocate had
eventually to interview the child at his school
(para 8 of that
affidavit, record p. 10 and Annexure A, record p. 34);
(d)
the Respondent, on receipt of the Family Advocate's report on 30
November 2005 in which, in order to guard against parental
alienation, the Family Advocate recommended reasonable access,
including removal rights every alternate weekend and school holidays
and telephonic contact, still refused him contact with the child
(para 9 to 11 of that affidavit, record pp. 10 to 11);
(e)
he then brought an application in terms of Rule 43 in which he
claimed an order granting him reasonable access to the child,
including removal rights every alternate weekend and school holidays,
as well as the right to contact the child telephonically
(para 15 of
that affidavit, record p. 13).
[15]
The Respondent failed to file an opposing affidavit, but on 7 March
2006, being the date on which the matter was enrolled,
counsel who
appeared on her behalf requested, saying that the Respondent was
unable to attend, a postponement, whereupon, the matter
was then
postponed sine die, but, as is apparent from para 16 of that
affidavit, record p. 14 and Annexure B, record p. 45, Patel
J granted
the Applicant, in the interim -
(a)
the right to remove the child alternate weekends (commencing from
the first weekend after the date of that order, ie., 11 March
2006);
(b)
the right to remove the child alternate school holidays (commencing
from the first holiday after the date of the order), Christmas
to
rotate between the parties; and
(c)
the right to telephonic contact with a cell phone to be provided, as
undertaken, by the Applicant.
[16]
Despite this order the Respondent still refused the Applicant any
access to the child. She also failed to file an opposing
affidavit,
whereupon, the matter was enrolled for 9 May 2006 (para 17 of that
affidavit, record p. 14).
[17]
In response to these allegations, the Respondent -
(a)
admitted that the Applicant issued summons for a divorce, but
contended that she and the child were "expelled' by the
Applicant from their home (para 9 of Respondent's opposing affidavit
in the variation application, record p. 70);
(b)
denied by way of a bare denial that she, after she left the common
home, refused the Applicant any contact with the child and
that she
had taken the cell phone away from the child (para 11 of that
affidavit, record p. 71);
(c)
denied also by way of a bare denial that she "simply did not go
for the interview with the Family Advocate and contended,
without
stating why, that what was stated in the report of the Family
Advocate was not the correct state of affairs and more particularly
at the time she deposed to her affidavit on 11 August 2010 (para 13
and 15 of that affidavit, record p. 72);
(d)
denied by way of a bare denial that she, after the report of the
Family Advocate became available, refused the Applicant any
contact
with the child (para 16 of that affidavit, record p. 73);
(e)
denied by way of a bare denial that she, after the order of Patel J
was granted on 7 March 2006, refused the Applicant any contact
with
the child (para 23 of that affidavit, record p. 76).
[18]
Secondly, there is the final order granted by Murphy J in terms of
Rule 43 on 9 May 2006
[19]
On 9 May 2006, in the absence of any opposing affidavit and on the
Respondent's apparent failure to appear, Murphy J granted,
as is
apparent from para 17 of the founding affidavit in the variation
application, record p. 14 and Annexure
C,
record p. 46, a final order in terms of which the Applicant was
granted the following rights of access to the child, namely -
(a)
to remove the child every alternate weekend (commencing the first
weekend after the date of that order, being 13 May 2006);
(b)
to remove the child every alternate school holiday (commencing the
first holiday after the date of that order, Christmas to
rotate
between the parties;
(c)
to have telephonic contact with the child by means of a cell phone to
be provided, as undertaken, by the Applicant; and
(d)
reasonable visitation to the child.
[20]
As the Respondent was still refusing to disclose her residential
address it was arranged, on her insistence, that the Applicant
would
collect the child at McDonald's, Randburg, for the first weekend
envisaged in Murphy J's order (paras 18.1 and 18.2 of that
affidavit,
record pp. 14 and 15)
[21
] According to the Applicant, the Respondent, however, on her arrival
refused to hand over the child and drove away, but, as
was later
determined, instead went to the police station where she laid a
charge against the Applicant accusing him of having threatened
her
with a gun. The Applicant described this allegation as a blatant lie
and raised the question why he would have taken a gun
to collect his
child and why would he have attempted to take the law into his own
hands after having followed a lengthy and costly
legal process to
obtain access to his child, particularly, where he had a court order
in his favour (paras 18.3 to 18.6 of that
affidavit, record pp. 15
and 16).
[22]
He was, according to him, later informed by the child that the
Respondent told him to lie about the incident at McDonald's
(para
18.7 of that affidavit, record p. 16).
[23]
The Respondent in turn merely reiterated the allegations that she was
threatened with a firearm and that she drove away because
she was
scared for her life and that of her child (para 25 of her opposing
affidavit, record p. 76).
[24]
Thirdly, there is the order by Shongwe J (as he then was) on 6 March
2008.
[25]
According to the Applicant he was after the incident at McDonald's
not granted any rights of access to the child, but at the
pre-trial
proceedings held with a view to the divorce, the Respondent conceded
to supervised access to the child being the basis
on which the deed
of settlement was eventually concluded (paras 19.4 and 20.1 to 20.4
of the founding affidavit in the variation
application, record pp. 17
and 28).
[26]
In terms of the deed of settlement, Annexure D to that affidavit,
record p. 47 -
(a)
custody of the child was awarded to both parties, but primary
residence of the child was vested in the Respondent;
(b)
the Applicant was entitled to contact the Respondent telephonically
to arrange a time, date and place at which to visit the
child;
(c)
the Respondent was at all material times to be present during the
exercise by the Applicant of his visitation rights.
[27]
According to the Applicant, the Respondent after the date of their
divorce, despite numerous telephone calls to arrange contact
with the
child and numerous letters by his attorney of record threatening to
bring an application for contempt of Court, constantly
refused him
access to the child until 21 June 2009, being the date of the child's
birthday, and persistently refused to disclose
the child's
whereabouts (paras 22 and 23 of that affidavit, record pp. 20 and
21).
[28]
On that date he phoned the Respondent and asked to speak to the child
to congratulate him on his birthday. A few hours later
the child
returned his call in the course of which they had a pleasant
conversation (paras 24 and 25 of that affidavit, record
pp. 21 and
22).
[29]
The following day at his request the Respondent, albeit to his
surprise, agreed that he may remove the child from school, being
the
first occasion he was allowed access to the child since they
separated five years earlier on 18 May 2004 (paras 24 and 25 of
that
affidavit, record pp. 21 and 22)
[30]
The Applicant on this occasion bought, with the Respondent's
permission, the child a cell phone and saved the number of his
cell
phone on it so that he and the child would be able to have telephonic
contact with each other which contact lasted until sometime
during
July 2009 (paras 25 and 26 of that affidavit, record p. 22).
[31
] Since July 2009 he, however, found that every time he phoned the
child the cell phone was switched off and when he thereupon
on
numerous occasions phoned the Respondent to find out what was going
on she on each occasion had an excuse and eventually snapped
at him
saying that he gave his current wife cars to drive around, but he
left her without a car or shelter and that he would not
see the child
for as long as she lives because he left her without a car and
shelter (para 28 of that affidavit, record p. 23).
[32]
The Applicant after a few days again phoned the Respondent and asked
to speak to the child, but she informed him that she was
in Polokwane
and the child was in Johannesburg, but that he could see the child,
whereupon, they arranged to meet the following
day so that they can
talk about it. However, the following day she said that she was going
to see her lawyer. On a question what
was wrong with the child's
phone, she told him that he changed the number, but she will "sms"
him the number which she
never did (para 29 of that affidavit, record
p. 24 ).
[33]
The Applicant on 27 August 2009 went to the child's school where the
child asked him why the Respondent does not want him to
see him (para
30 of that affidavit, record p. 25).
[34]
The Applicant on 27 September 2009 obtained the child's new number
from him at school and phoned him the next day during which
the child
indicated to him that he would like to visit him for the December
school holidays, but that he was scared since the Respondent
said
that his wife would kill him (para 31 of that affidavit, record p.
25).
[35]
The Respondent on 5 September 2009 phoned him and said to him that he
is a "thunderheaa" and that she does not want
him in their
lives and that she would kill him and ensure that he becomes
"bewitched', but later phoned and attempted to apologise.
He in
any event thereafter, often without the Respondent's knowledge, spoke
to the child telephonically and discovered that he
is often left at
home alone when the Respondent and her husband visits Polokwane and
that the child often "skips school (para
32.1 to 32.4 of that
affidavit, record p. 26)
[36]
At some stage he contacted the child's school teacher who told him
that she was concerned about the child as he was at times
absent from
school for two weeks before the school closes and two weeks after the
school reopens, that she contacted the Respondent
about the
situation, but she never came back to her. According to him the
teacher was not prepared to give him a letter to that
effect because
the principal would not give her permission to do so (para 32.5 and
32 .6 of that affidavit, record p. 27).
[37]
As is apparent from the Applicant's supplementary affidavit filed in
the contempt application, (para 11 of that affidavit,
record p. 205)
he on 4 October 2010 had a conversation with the child's headmaster
during which he informed him that the child
was often absent from
school on an on-and-off basis for approximately six weeks, that the
child was not doing well in school and
that he would in all
likelihood fail that year (the headmaster was according to the
Applicant also not prepared to depose to an
affidavit as he did not
want to get involved in court applications between the parties).
[38]
On 7 October 2009 the child phoned him and told him that his mother
had taken his phone away "to register it with 'Rica'",
but
never again returned it to him, whereupon, the child asked him to
provide him with a new phone which he did (para 33.3 of the
founding
affidavit filed in the variation application, record p. 28).
[39]
It is against this background that the Applicant contended that it is
not in the child's best interests that his primary place
of reference
should vest in the Respondent as she has been alienating the child
from him for five years at the time by telling
him, for instance,
that he killed their first born child (who in fact died because of
being prematurely born), that he used to
beat her up at all time
during their marriage, that he does not make any financial
contribution to the child's maintenance (whilst
he has been paying R4
000 per month at all times) and that her husband was going to beat
him up should he persist with his intent
to see the child (para 35 to
39 of that affidavit, record pp. 28 to 32)
As
far as the Applicant's current wife is concerned, the Applicant
indicated that he, after the Respondent left him, became romantically
involved with his current wife, Thabelang Melydan Ncube
("Thabelang"), who is an admitted advocate and the senior
manager
for the compliance division of the Limpopo Gambling Board in
Polokwane. Soon after he so became involved the Respondent wanted to
reconcile. He, however, told her that he was not interested. The
Respondent then started spreading lies about Thabelang by accusing
her of witchcraft and issued summons against her for having allegedly
having broken up her marriage. A counterclaim was then instituted
against the Respondent for defamation, but the matter was eventually
settled on the basis that the claims were withdrawn and each
party to
pay her own costs (paras 13 and 14 of that affidavit, record pp. 12
and 13).
[40]
In response to these allegations, the Respondent -
(a)
denied, although she conceded that she received letters from the
Applicant's attorney threatening to bring an application for
her to
be held in contempt, by way of a bare denial the allegation that she
refused the Applicant any contact with the child after
6 March 2008
(paras 40.1 and 41 of the Respondent's opposing affidavit, record pp.
84 and 85);
(b)
conceded that she was not prepared to disclose the child's
whereabouts "for safety and security reasons, and also in terms
of the protection order" (para 40.2 of that affidavit, record p.
84);
(c)
denied by way of a bare denial the allegation that she always had an
excuse as to why the child's cell phone was always switched
off and
that she snapped at him saying that his wife was a witch and that for
as long as she lives he would not see the child because
he left her
without a car and shelter (para 46 of that affidavit, record p. 87);
(d)
denied again by way of a bare denial the allegation that she instead
of discussing as arranged the previous day, how it can
be arranged
that he could see the child and that she failed to comply with a
promise to "sms" the child's new cell phone
number to him
(paras 47 and 48 of that affidavit, record pp. 87 and 88);
(e)
denied also by way of a bare denial the allegation that the child on
27 August 2009 asked him why the Respondent does not want
him to see
him (para 50 of that affidavit, record p. 87);
(f)
contended in response to the allegation that the child was often
absent from school, that, referring to a letter annexed to
her
affidavit as Annexure T3 (record p. 111), the Applicant's unannounced
visitations to the child at school are not in the best
interest of
the child and that the Applicant "feeds the minor child with
wrong and false information" against her (para
51 of that
affidavit, record pp. 89 and 90);
(g)
denied also by way of a bare denial the allegation that she phoned
him on 5 September 2009 and called him a "thunderhead'
and said
that she would kill and bewitch him (para 52 of that affidavit,
record p. 90);
(h)
denied the allegation that the child is often absent from school
(para 54 of that
affidavit, record p. 90);
(i)
contended, referring to a letter Annexure T4 to her affidavit, in
response to the allegation that the Respondent took his cell
phone to
register it in terms of "RICA", but never returned it, that
it is detrimental to the child in so far as he was
scared as to how
he was going to explain such an expensive cell phone to his teacher
and fellow friends (paras 55 to 59 of that
affidavit, record pp. 90
to 94);
(j)
denied, referring to the letters Annexures T3 and T4, that she is not
a fit and proper person in which primary residence of
the child
should be vested and challenged the Applicant to submit a report from
the Family Advocate in that regard (paras 60 to
68 of that affidavit,
record pp. 95 to 103).
[41]
The Applicant lodged, based on the aforegoing allegations set out in
his founding affidavit, the variation application on 14
October 2009.
[42]
The Respondent filed a Notice of Intention to Oppose on 22 October
2009, and, since no opposing affidavit was thereafter filed,
the
matter was enrolled by notice dated 11 January 2010 on the opposed
roll for 10 August 2010.
[43]
Fourthly, there is the order of Mavundla J dated 12 August 2010
[44]
When the matter was called before Mavundla J on 12 August 2010, ie.,
10 months after she filed her notice of opposition, the
Respondent
filed her opposing affidavit.
[45]
On this occasion the Family Advocate handed in a report (Annexure A,
record pp. 33 to 50) prepared during August 2010 in which
it was
recommended that the Applicant be granted permanent residence of the
child.
[46]
As is apparent from this report the Family Advocate and the Family
Counsellor whose report was annexed to the Family Advocate's
report,
interviewed only the Applicant as the Respondent was unable to avail
herself for an interview prior to the hearing of the
matter. They,
however, succeeded in interviewing the child at his school.
As
indicated in the report (record p. 121) it is recorded -
(a)
that the child indicated to them that he is very keen to have
contact with his father;
(b)
that the child was very aware of the conflict between his parents
pertaining to him and indicated that he wishes it to come
to an end;
(c)
that he wished to have free contact with either of his parents
without feeling guilty about his affection to both of them;
(d)
that as a result of the estrangement the child did not have a
relationship with the
Applicant's
current spouse, but was willing to gradually foster a relationship
between them and that he was keen to meet his little
half brother and
have a relationship with him;
(e)
that the child indicated that he was currently not ready to be
permanently separated from the Respondent, as he was, so it was
perceived, currently experiencing security and stability with the
Respondent which seems to be due to the lack of contact with
the
Applicant for a long period of time and the uncertainty of the
Applicant's environment.
In
paragraph 6.3 of her report (record p. 120) the Family Advocate
reported as follows:
"The
best interest of a child are best served by both parents having an
equal say in the raising of the child and the child
maintaining equal
contact with both parents on a regular basis. The Respondent in the
current matter has left the Applicant out
of major decision-making
processes that involve the child and has failed to keep him informed
of the child's well-being and development
and this has resulted in
the Applicant missing out on several years of the child's growth,
development and milestone achievements.".
Taking
into consideration the information at her disposal at the time, the
Family Advocate recommended that, although the Respondent
was not
interviewed, the Applicant be granted permanent residence, but
recommended that, should the Court insist on the Respondent
being
interviewed, interim rights of removal of the child be granted to the
Applicant without any supervision.
I
accept that it was on this basis that Mavundla J based the order
granted on 12 August
2010.
[47]
In terms of the order granted by Mavundla J on that date the matter
was postponed sine die and the Respondent was ordered to
file an
application for condonation for the late filing of her opposing
affidavit within 15 days as from that date (para 2 of replying
affidavit, record p. 202).
The
Respondent never complied with this order.
[48]
As is apparent from the order (record pp. 64(a) and 64(b)), Mavundla
J, by agreement between the parties, furthermore, ordered
-
(a)
that due to the urgency of the matter the Deputy Judge President was
requested to allocate a hearing date before the end of
the year;
(b)
that pending the outcome of this application the Applicant will as
agreed between the parties, have the following rights of
contact with
the child -
(I)
to remove the child on Saturday, 14 August 2010 from 9h00 to 16h00;
(ii)
to remove the child on Saturday, 21 August 2010 from 9h00 to 16h00;
(iii)
to remove the child for every alternative weekend from Friday 17h00
till
Sunday 17h00 starting on Friday 3 September 2010;
(iv)
to remove the child for every short school holiday starting on 23
September 2010 to 3 October 2010;
(v)
to remove the child for half of the December 2010 school holidays
(the last part of the holiday), and that the child will spend
Christmas with the Applicant;
(c)
that the Respondent will take the child to the Sandton Police
Station on the respective dates and times as set out above in
order
for the Applicant to exercise his rights of contact at which address
the Respondent will again collect the child at the respective
dates
and times;
(d)
that the South African Police be requested to assist the Applicant
in removing the child in terms of the aforesaid orders;
(e)
that the Respondent to allow telephonic contact between the
Applicant and the child at all times and to furnish the child with
a
cell phone for that purpose and to inform the Applicant's attorney
within five days of that order of the number of that cell
phone and
to ensure that remains in working order;
(e)
that the Respondent should bear the costs incurred by the Applicant
on 11 August 2010 and that the costs incurred by the Applicant
on 12
August 2010 be reserved .of her recommendations and the reasons
therefor.
Thirdly,
an affidavit (record p. 134) by the same social worker in which it is
stated that she again interviewed the child on 10
September 2010 in
the presence of Lieutenant Colonel Mahladimela during which the child
indicated that he wished his father to
stop pushing and scaring him
that his mother would go to jail if he does not spend time with him
and that he wished him to stop
referring to the court order.
Furthermore, he said that he does not want to meet his father until
he understands his schedule and
does not push him.
It
does not appear from this affidavit or from the opposing affidavit
why it was deemed necessary to interview the child on 10 September
2010 and why this affidavit was obtained from the social worker and
not from the child himself. The allegations contained therein
in any
event appear to be in contradiction with the contents of the social
worker's earlier report in which it is indicated that
the child
indicated that he merely wished his mother to be around the place
where his father is taking him and that he wanted to
know him better.
The
allegations contained in this affidavit also conflict with the
undisputed facts that the. reason why the child was not handed
to the
Applicant on September 2010 was because the child wished to rather
attend a party and not that he did not wish to have unsupervised
contact or any contact at all with the Applicant.
As
is apparent from the Family Advocate's final report dated 17
September 2010
(record
p. 135) it is apparent that the child never at any time during
interviews with him by the Family Advocate insisted on supervised
visits. When this was pointed out to the Respondent by the Family
Advocate she accused the Family Advocate of being biassed in
favour
of the Applicant.
Furthermore,
as is apparent from the letter (Annexure T6, record p. 114) annexed
to the Respondent's opposing affidavit in the variation
application,
the child indicated on 10 August 2010 that he wanted to remain with
his mother and to start a form of relationship
with his father, with
the possibility of weekend visits.
Fourthly,
a report prepared by a clinical psychologist (record p. 269) on two
interviews conducted with the child on 15 September
2010 and 19
September 2010. According to the report the child was referred to him
by the social worker who interviewed him at the
Police Station. Based
on what the child told him the psychologist recommended -
(a)
that the child should continue to live with his mother and step
father;
(b)
that his biological father needs a ''psychological
evaluation/interview" before he can be granted permission to
spend
time with the child;
(c)
that initial visits with the child must be supervised and monitored
until it is ascertained that it is "reasonably safe"
for
the child to be with him;
(d)
that the child needs to be emotionally prepared by a therapist before
a court appearance;
(e)
that the child needs to be in therapy to help him deal with difficult
emotions caused by the "recent change in his life";
(f)
that the Respondent and step father may also benefit from parental
guidance with a psychologist.
Having
read the report, it would appear, on the assumption that it is in the
absence of an affidavit admissible evidence, that,
apart from the
fact that the recommendations are based merely on what the child told
him most of the time in the presence of the
Respondent and the
child's stepfather, the psychologist was unaware of the long
background history of the matter, the various reports
of the Family
Advocate and that at that stage four court orders had already been
granted in terms of which the Applicant was granted
access to the
child. It is also apparent from this report that what he observed
during his interviews with the child was in conflict
with what the
child, according to the social worker's affidavit, told her on 10
September 2010.
In
these circumstances I am unpersuaded that he was in a position to
express and did express an objective and reliable opinion.
[65]
I need also to refer to the Applicant's replying affidavit (record p.
188 onwards) and certain supplementary affidavits filed
by him on new
developments after he filed his replying affidavit in so far as they
relate to the allegations made by the Respondent
in her opposing
affidavit.
[66]
In this regard I can refer to the following -
(a)
in relation to the Respondent's criticism (para 28, 29 and 30 of the
opposing affidavit, record pp. 73 to 76) on the Family
Advocate's
report prepared during August 2010, the Applicant pointed out (para
23 to 29 of the replying affidavit, record pp. 198
to 201) -
(I)
that the Family Advocate even in her final report after having
interviewed the Respondent still adhered to her original
recommendations;
(ii)
that the Respondent also failed to avail herself for an interview
with the Family Advocate for purposes of the Family Advocate's
report
made available on 30 November 2005;
(iii)
that the principal's letter conflicts with the Family Advocate's
report;
(b)
in relation to her response on what occurred on 14 August 2010
(paras 33 to 34 of her opposing affidavit, record pp. 79 to
89)T the
Applicant stated (paras 31 to 49, record pp. 202 to 209) -
(I)
that the Respondent acted in bad faith by having consulted the social
worker at the Sandton Police Station without disclosing
that to the
legal representatives during negotiations on 11 and 12 August 2010
for the Applicant's interim rights only to use it
two days later as a
way to frustrate the execution of Mavundla J's order;
(ii)
that unfortunately the Police only assisted the Respondent and,
despite a request, failed to help the Applicant in the execution
of
the order;
(iii)
that, should the Family Advocate have indicated that she would not
have made her earlier recommendation if she knew what
the child's
views were, it is highly unlikely that she would have adhered to her
recommendations in her final report (which was
in any event later
denied
by the Family Advocate);
(iv)
that it is not true that the Family Advocate appeared not to have
been sober;
(v)
that the Applicant's attorney was very rude to the Family Advocate
and that the Police's conduct to respond to the request of
the
Applicant's attorney to remove the Family Advocate, being an officer
of this Court and having been there on the authority of
the Court,
from the Police Station was very upsetting which shows the influence
the Respondent and her attorney had at the Police
Station;
(vi)
that he called his own attorney to the Police Station because he
felt that he was being bullied by the Respondent's attorney;
(vii)
that the child never told the Applicant's attorney that he was not
willing to leave with the Applicant without supervision
(see:
letters, Annexures BB1 and BB2 addressed by the Applicant's attorney
to the Respondent's attorney on 17 and 20 August 2010
and the
letter
Annexure BB3 dated 23 August 2010 by the Respondent's
attorney addressed to the Applicant's attorney and a letter BB4 dated
25 August
2010 by Applicant's attorney in response to that letter,
record pp. 253 to 262);
(viii)
that the child was in fact very keen to go to Sandton City Mall and
got with the Applicant into his car out of his own free
will;
(c)
in relation to the allegation (para 36.4 of Respondent's opposing
affidavit, record p. 96) that "the child is still not
to be
removed by the Applicant without any supervision" (para 53.4 of
the replying affidavit, record pp. 212 and 213) -
(i)
the Applicant pointed out, correctly in my view that the Family
Advocate never indicated that the child told her that he did
not want
to be removed without supervision;
(ii)
the Applicant contended, in relation to the report of the
unidentified social worker -
(aa)
that, apart from expressing some doubt as to whether she was the
author of that report, it does not appear from the report
that the
child indicated to her that it was never her instructions that the
child refused to be removed without supervision; and
(bb)
that it is in any event unusual that a social worker should make a
recommendation after only one interview;
(d)
in relation to the allegation that the child indicated that he would
prefer to rather have attended a birthday party of a family
member on
3 September 2010 {paras. 38 and 39 of that affidavit, record pp. 92
to 96), the Applicant indicated that, apart from
the fact that the
child never mentioned that to him in the course of the week and that
the excuse of unsupervised contact was no
longer raised, he would
have, should it be true that the child would have liked to attend
such a party, ensured that the child
could have attended the party as
it could not have lasted a whole weekend {para 63 of the replying
affidavit, record p. 217).
[67]
Because of the serious allegations made by the Respondent against the
Family Advocate, I need to refer to the Family Advocate's
responses
contained in a Supplementary Report of the Family Advocate (record
pp. 274 to 283).
[68]
In this regard I can refer to the following -
(a)
in relation to the allegations made on the Family Advocate's
recommendations that the child be "removed" (paras 29.7,
29.8 and 30.3 of the opposing affidavit, record pp. 75 and 76), the
Family Advocate pointed out (para 3 of the supplementary report,
record pp. 275 and 276) -
(i)
that the Respondent was misconstruing the provisions of
sections 10
and
31
(1) of the
Children's Act, 2005
, requiring "due
consideration to any views and wishes expressed by the child, bearing
in mind the child's age, maturity and
stage of development' and not
that such views and wishes should be the deciding factor when
determining the issue of best interests;
(ii)
that, as is apparent from the report, the child's opinion was sought
and considered;
(b)
in relation to the allegation that the Family Advocate expressed an
opinion without the Respondent's input (para 30.2 and 30.4
of the
opposing affidavit, record p. 76), the Family Advocate pointed out
(para 4 of the supplementary report, record p. 276) that
at the time
the report was filed the Respondent had not yet availed herself, but
that provision had been made for that in the recommendation;
(c)
in relation to the Respondent's actions to interview and involve the
social worker at the Police Station (para 33.4, 34.1.5
and 34.1.7 of
the opposing affidavit, record p. 78), the Family Advocate pointed
out (para 5 of the supplementary report, record
p. 276) that the
Respondent made unilateral arrangements which were imposed upon all
present, that she was not pleased with the
arrangements and made it
clear to the Respondent, but in any event awaited the outcome of that
social workers interview with the
child;
(d)
in relation to the Respondent's allegation that she was not sober
(para 34.1.9 of the opposing affidavit, record p. 78), the
Family
Advocate pointed out (para 6 of the supplementary report, record p.
276) that she denies with contempt the "contempts"
raised
against her and indicated that it is merely "indicative of the
levels that the Respondent is willing to go in order
to discredit
(her) personally as well as the findings of (their) investigation"]
(e)
in relation to the Respondent's allegation th at the Family Advocate
then suggested that she should take a walk with the child,
but that
she refused because the Family Advocate had said that she would not
have made the recommendations she made had she been
aware of the
child's wishes 34.1.13 and 34.1.14 of the opposing affidavit, record
p. 82), the Family Advocate denied the allegation
and indicated that
she was exasperated as a result of what she viewed to be obstructive
behaviour on the part of the Respondent
(para 7 of the supplementary
report, record p. 277);
(f)
in relation to the Respondent's allegation relating to the
occurrences that had given rise to the Family Advocate being
requested
to leave the Police Station (para 34.1.23 of the opposing
affidavit, record p. 84), the Family Advocate admitted that she
refused
to leave as she was not impressed with the Respondent's
attorney's unprofessional conduct who on his arrival refused to speak
to
her or to even acknowledge her presence and even manhandled her
after having requested the police to remove her as she could not
be
privy to their talks which were according to him subject to attorney
client privilege (para 8 of the supplementary report, record
p. 277);
(g)
in relation to the Respondent's allegation that the Family Advocate
failed to file, despite letters addressed to her by her
attorney, a
supplementary report relating to her interview with the Respondent on
11 August 2010 (paras 38.5 to 38.9 of the opposing
affidavit, record
p. 93), the Family Advocate pointed out that in response to a letter
received from the Respondent's attorney
she addressed a letter to him
in which it was stated that the report will only provided after she
satisfied herself that the contact
set out in Mavundla J's order has
been exercised (para 10 of the supplementary report, record p. 278);
(h)
in relation to the Respondent's request that a fresh investigation
be conducted (para 45.6 of the opposing affidavit, record
p. 103).
the Family Advocate pointed out that such an investigation will serve
no purpose as it has by then become apparent that
the Respondent will
not accept any recommendations that do not suit her (para 11 of the
supplementary report, record p. 279);
(I)
in relation to the Respondent's allegation that the child had
expressed his views I am accordingly satisfied that the Respondent's
denials are "so far-fetched" and "clearly untenable"
that I have no hesitation in rejecting those denials on
the papers (
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 635B).
[95]
In the second place the Respondent manipulated various situations to
sidestep or prevent compliance with the various court orders
granted
against her or to delay the finalization of the various applications
lodged by the Applicant.
[96]
In this regard I can refer to the following:-
[97]
Firstly, she refused from the moment she left the common house to
disclose her address or the whereabout of the child.
By
refusing to provide her residential address or even the address of
her place of employment, she at all times made it impossible,
not
only for papers to be duly served on her, but also for the Applicant
to exercise the rights granted to him by the various court
orders
and, inter alia, created the difficulties that occurred at McDonalds
and at the Sandton Police Station.
The
Respondent's excuse for not providing her address, namely, that it is
because of the interim protection order she obtained on
2 June 2006
is unimpressive since she refused to disclose her address or the
whereabouts of the child from the very moment she
left the common
home on 18 May 2004, being more than two years before the protection
order was granted.
In
my opinion her refusal to provide her address was merely a bad excuse
at first to prevent the Applicant from contacting the child
and later
to escape due compliance with the orders granted against her and, in
so doing, to deprive or frustrate the Applicant,
from exercising his
rights of contact with the child.
[98]
Secondly, there is the evidence that she constantly took the cell
phones away the Applicant had given the child in an attempt
to at
least by that means maintain, as he was in terms of the various court
orders granted in his favour entitled to do, regular
contact with the
child, and probably on at least one occasion changed the number of
his cell phone.
[99]
Thirdly, she on at least two occasions did not avail herself and the
child for interviews with the Family Advocate who was
charged with
the function of providing the Court with a report on the best
interests of the child so that the Family Advocate was
bound to
interview the child at his school and to submit at first two reports
without the full benefit of the Respondent's inputs.
[100]
Fourthly, the Respondent failed to file an opposing affidavit in the
Applicant's
Rule 43
application in which he sought an order granting
him rights of access to the child. Instead counsel appeared on her
behalf and
sought a postponement to afford her an opportunity to file
such an affidavit because she was, apparently without any indication
why, "unable to attend'.
Patel
J postponed the matter sine die, but granted an interim order in
terms of which the Applicant was granted unsupervised contact
with
the child. She failed to comply with this order and in any event
failed to file an opposing affidavit or to appear on the
date the
matter was enrolled for final determination.
Her
conduct in this regard strongly suggested that she on the first
occasion the matter was enrolled merely attempted to delay the
matter.
[101]
Fifthly, there is the McDonald's incident which seems to have
occurred on 14 May 2006 on the occasion on which she was bound
in
terms of the order of Murphy J to hand the child over to the
Applicant for the weekend.
The
Respondent's conduct in relation to this incident was in my view
highly suspect.
It
is, as indicated by the Applicant, in my view really ridiculous to
believe that he, after not having seen his child for almost
two
years, would have pointed a gun at the Respondent if it was his only
aim to collect his child for the weekend in terms of the
order
granted to him. It is of some significance that Respondent failed to
give any detailed particulars of how it occurred. If
it is true that
he did point a firearm at her, the question arises what he could have
had in mind. If regard is had to her affidavit
made in support of the
protection order on 2 June 2006 (p. 120), of which, incidentally, not
all the pages have been annexed to
the papers, it is stated that the
child had already made arrangements to visit a friend, that the child
phoned the Applicant and
told him and that her Attorney said that
they shouldn't go. It must follow that she had no intention of
handing the child over
to the Applicant for the child for the
weekend. All indications are that the Applicant was never charged for
having pointed a firearm
at the Respondent. Furthermore, no affidavit
of her aunt who allegedly accompanied her on this day was annexed to
the papers.
According
to the Applicant the child at some stage informed him that his
mothertold him to lie about this incident. I am well aware
of the
hearsay nature of this evidence, but, bearing in mind that the
Applicant had no access to the child to obtain an affidavit
from him
and the fact that the Respondent who did have access to the child did
not deem it necessary to file an contradictory affidavit
of the child
or other available confirmatorty affidavits, this is a situation
where the Applicant's evidence in this regard can
be admitted in
terms of
section 3(1)(vii)
of the
Law of Evidence Amendment Act, 1988
{Act 45 of 1988).
In
my opinion this version was merely a ploy to escape compliance with
Murphy J's order and can on the probabilities be rejected
on the
papers as untenable and untrue.
[102]
Sixthly, there is the Respondent's insistence from the date of their
divorce that any access to the child should be supervised.
Except
for the McDonald's incident (which I have already rejected), the
Respondent advanced no reasons for her attitude in this
regard and I
fail to see why supervised contact was necessary at any time and,
particularly, at this stage where the child had
already attained the
age of 14 years.
She
in any event agreed to unsupervised contact on 21 June 2009, but
before that date and, particularly, after that date again insisted
for no apparent reason on supervised contact. According to the Family
Advocate's report (para 4.2) made available on 17 September
2010
(contempt application, record p. 136) she conceded during an
interview conducted on 11 August 2010 that the Applicant was
never
abusive towards the child, but she still preferred that contact with
the child should be exercised under supervision "for
her own
peace of mind'.
However,
three days later on 14 August 2010 and after having agreed to an
order on 12 August 2010 providing for unsupervised contact,
she
refused to allow unsupervised contact on the grounds thereof that the
child refused to accompany the Applicant alone.
Her
conduct in this regard is highly suspicious.
As
is apparent from the three reports submitted by the Family Advocate,
the child on no occasion insisted on supervised contact
which accord
with communications the child, according to the Applicant, made to
him.
On
14 August 2010, however, the child all of a sudden seems to have
undergone an incomprehensible change of heart in circumstances
where
the Respondent had, earlier in the week, surreptitiously briefed an
unidentified social worker, to be present and to interview
the child
at the Sandton Police Station, incidentally, at the same time she
was. required in terms of a court order, to hand the
child over to
the Applicant.
Notwithstanding
the child's purported refusal to be alone with the Applicant he in
the end out of his own free got into the Applicant's
car in order to
drive, as agreed, to the Sandton Shopping Mall.
I
have no doubt that the Respondent was responsible for the child's
insistence on this day and thereafter to supervised contact
and
later, as indicated in the affidavit filed by the social worker
(record p. 134), "that he does not want to meet his father
until
he understands his schedule and does not push him".
[103]
Seventhly, there is the evidence by the Applicant that the child told
him on the few occasions they were in contact with each
other -
(a)
that he would have liked it to visit him during the December 2009
school holidays, but that he is scared as the Respondent told
him
that the Applicant's wife would kill him;
(b)
that the Applicant killed their first born;
(c)
that the Applicant had beaten her up during their marriage:
(d)
that the Applicant is not contributing financially to his
maintenance,
being
all communications that are on the objective available evidence
untrue and which are communications which appear to be aimed
at
discouraging the child from having any contact with the Applicant
The
Respondent denied all these allegations, but It is evident from the
communications that the child could not have had any knowledge
of the
facts referred to in the communications unless it had been
communicated to him by the Respondent.
This
is also evidence which can in my view be admitted under section 3 of
the Law of Evidence Act, 1988.
In
any event the Respondent indeed made allegations to the Family
Advocate that she was emotionally and physically abused by the
Applicant during their marriage. It appears to be a doubtful
allegation if on bears in mind that she admittedly issued summons
against the Applicant's current wife for being the cause of the break
up of their marriage.
[104]
Eighthly, there is the fact that the Respondent failed to take the
child on 3 and 17 September 2010 to the Sandton Police
Station in
order to enable the Applicant in accordance with the order of
Mavundla J to remove the child for the respective weekends.
On
3 September 2010 the Respondent arrived at the Police Station and
informed the Applicant that the child was at home crying since
he did
want to go with the Applicant as he preferred to attend a party of a
family member. Significantly no mention was made that
he was not
prepared to be in unsupervised contact with the Applicant. The excuse
appears, if not untrue, to be a lame one. According
to the Applicant
he had various conversations with the child in the week in which he
appeared to have been excited on the prospects
on spending the
weekend with his father (which is confirmed by his half brother who
spoke to him in the course of that week, record
p. 171) and that he
would, should it be true, in any event have ensured that the child
could attend the party.
On
17 September 2010, being the next date on which he was entitled to
remove the child for the weekend and being a date after the
contempt
application was lodged, the Respondent did not even bother to go to
the Police Station.
[105]
Ninthly, the Respondent blatantly ignored without offering any excuse
the orders granted by Webster J on 7 October 2010 and
by myself on 25
February 2011.
[106]
Furthermore, I need to comment on the manner in which members of the
Sandton Police Station have dealt with this matter.
It
is in my view apparent that the relevant members made no attempt to
assist the Applicant, as ordered by Mavundla J, in removing
the child
in terms of the aforesaid orders. Instead they, on the unprecedented
and improper instructions of the Respondent's attorney,
assisted in
effecting the removal of the Family Advocate from the Police Station.
In doing that they actually assisted the Respondent
in failing to
comply with a court order and in the process assisted in removing an
officer of the Court who was there on the authority
of the Court to
assist in the execution of a court order. Their conduct clearly
lacked objectivity.
Furthermore,
there is the conduct of Superintendent Mahladimela of the Sandton
Police Station who seems to have involved himself
personally and
improperly in the dispute.
In
the circumstances the objectivity of members of the Sandton Police
Station in dealing with this matter is in my view suspect
and it is
advisable that the Sandton Police Station should be restrained from
any further involvement in the disputes between the
parties in these
matters.
[107]
I need also to refer to the documents annexed to the Respondent's
papers as AnnexuresT2, T4and T5, record pp. 111 to 114,
purportedly
documents prepared by teachers at the child's school.
Apart
from questions raised on behalf of the Applicant on the admissibility
of these documents, I find it strange that these teachers
deemed it
necessary or expedient to prepare and forward these documents to the
Applicant and for what reason they had done that,
particularly, if
regard is had to the fact that the principal and the child's teacher
refused, at the request of the Applicant
to depose to affidavits on
issues they raised with him in relation to, inter alia, to the
child's school attendance.
AnnexureT2
is a document addressed "To whom it may concern" has
obviously been prepared to criticise the Applicant, not
having been
allowed to visit the child otherwise, for having visited the child at
school on two occasions. If he was to be criticized,
the question
arises why it was not taken up with the Applicant himself. It creates
the impression that it was subjectively motivated.
Annexure
T 4 is a letter addressed by the child's teacher to the Respondent in
which it is stated that the child complained to her
that the
Applicant had given him an expensive cell phone together with a "sim"
card and that he was concerned that his
father came to visit him at
school without prior permission of his mom.
Why
it was deemed necessary necessary for the teacher to have written
this letter to the Respondent is not clear to me as she could
merely
have phoned the Respondent if was a matter of some concern or she
could have taken it up with the principal.
Annexure
T5 is a letter written by the principal addressed to the Respondent
to inform her that the Family Advocate had interviewed
the child at
school on 5 August 2010 and notified her of what was discussed with
the child.
Why
he elected to involve him in the issues between the parties in this
regard is unclear as he on a later date indicated to the
Applicant
when he requested him to depose to an affidavit on certain issues
relating to the child's school attendance that he did
not want to get
involved in the issues between the parties.
I
am in the circumstances not prepared to take particular notice of the
contents of these documents.
[108]
Furthermore, there are indications that the child has been allowed to
skip school for extensive periods which already had
a negative impact
on his school education.
Conclusions
[109]
In view of the aforegoing, I came to the conclusion that the
Respondent, save for a few insignificant instances, deliberately
over
a period of almost seven years alienated the child from the Applicant
and left him out of any decision making, Set alone'
major decision
making, in the child's upbringing.
[110]
This she had done notwithstanding six court orders in terms of which
she was ordered to allow the Applicant reasonable access
to the
child.
[111]
In a process of thwarting compliance with the various court orders
she devised various dubious, if not surreptitious, methods
not to
comply with some of the orders and just blatantly ignored the other
orders and has gone out of her way to negatively influence
the child
against having contact with the Applicant.
[112]
This brings me to consider, with due regard to the above conclusions,
the relief claimed in both the variation application
and the contempt
application.
[113]
As far as the variation application is concerned, the reversal of
custody of a child, because of the recalcitrance of a custodial
parent, is, as is apparent from a few judgments delivered in our
Courts not an unusual occurrence.
[114]
In this regard I can refer, particularly, to the following reported
judgments.
[115]
In Kok v Clifton
1955 (2) SA 326
(W) the learned Judge expressed
himself in this regard at 330C as follows:
"It
is a common-place that it is in the interests of the child of
divorced parents that it should not be estranged from either
parent;
the child should not be placed in such a position as to lose
affection for either of its parents, nor that either of the
parents
should lose affection for and interest in the child. It is of
importance to this child, in my view, that the father should
retain
his affection for the child and his interest in him".
[116]
In Germani v Herf
1975 (4) SA 887
(A), the Court was, as in this
case, concerned with a factual situation where a father was, despite
an order of Court that the
father was entitled to certain rights of
access to his child, refused access to a child by the mother over a
protracted period
of time. The question in issue in that matter was
whether the father prowed that the mother's refusal to comply with
the Court's
order was wilful, regard being had to the 12 year old
child's steadfast refusal to have anything to do with the father.
Having
held (at p. 900A) that "the child's recalcitrance has
undoubtedly been encouraged by the negative attitude (the mother) has
constantly adopted towards (the father's right to access)" , the
Court raised the question whether in such circumstances the
Court a
quo could have considered awarding custody of the child to the
father. In this regard the Court remarked at 905A as follows:
"A
note of warning should, I think, be added here. If appellant's access
continues to be frustrated or prevented by first respondent
or the
child, the Court a quo may well have to consider seriously in the
light of all the circumstances, apart from any question
of enforcing
the committal order against first respondent, whether the only
solution is to award the custody of the child to appellant,
at any
rate for such time as it deems fit .... That would afford an
effective opportunity for father and son to become reconciled.".
[117]
In Richies v Richies 1981(1) PH B4 (0) Van den Heever J said the
following which is also apposite here:
"A
parent who unnecessarily deprives a child of the opportunities to
experience the affection of its other parent and breaks
down the
image of that other parent in the eyes of the child, is a selfish
parent, robbing the child of what should be its heritage
in order to
salve his own wounds. And regrettably often parents wounded by their
marital conflict lose their objectivity and use,
as very effective
clubs with which they beat the foe, the objects both profess to love
more than life itself, their children, who
suffer further trauma in
the process."..
[118]
This is an approach also followed in similar circumstances in other
countries, such as, for example, in a judgment delivered
in the
Australian High Court of Justice, Family Division reported as Vv
V[2004] EWHC 1215 (Fam) In this matter the Court was also
faced with
a situation where the mother unilaterally and unreasonably denied a
father access to his children. After constant litigation
between the
parties over a period of four years involving 17 court orders and
directions of some 16 judges the Court eventually,
indicating that it
was time that the litigation should be brought to an end for the sake
of the children, transferred residence
of the children to the father.
Of
importance and relevant to the circumstances of this matter, is the
following passage from paragraph 2 of the judgment:
"
Unfortunately the courts at all levels are well accustomed to
intractable contact disputes which drag on for years with little
or
anything to show for the outcome except numerous court hearings,
misery for the parents, who become more entrenched in their
positions, wasted court resources, and above all serious emotional
damage to the children. These disputes
are
expensive, ..... They take up a disproportionate amount of time in
court, thereby depriving other cases of timely hearing.
Constant
litigation in respect of residence and/or contact is not only
destabilising for parents and children who become a battleground
to
be fought over at any cost, but it is a process which progressively
results in entrenched attitudes as if engaged in a war of
attrition.
Frequently, as in the current case, it is the mother caring for the
children who is against making contact work. I find
she has
undermined contact to father over a period of years in circumstances
in which the children love their father, want to spend
time with him,
know him and a good relationship with him. They also love their
mother who, in many respects, is a good parent.
Had it not been for
the breakdown of the parents' relationship, the alienation of their
respective extended families and the corrupting,
corroding effect of
litigation battles, I consider that not one word of criticism would
have arisen concerning the quality of care
given to these children.
What has happened is a tragedy because each parent has much to
offer.".
The
following remarks made by the Court in that matter in paragraph 4 of
that judgment are also of some significance in this matter:
There
is also a perception that courts allow parents with care to flout
court orders for contact and permit the parent with residence
to
exclude the parent from the lives of the children so that the other
parent is worn down by years of futile litigation which
achieves
nothing and only ends when the parent gives up the struggle, or the
children are old enough to make their own decisions,
assuming they
have not been brainwashed in the meantime.".
[119]
In having considered the sentiments expressed in the above matters
with which I am in respectful agreement, I am mindful of
the
constitutional provision that a child's best interests are of
paramount importance in every matter concerning the child.
[120]
In relation to the wishes, according to the evidence adduced by the
Respondent, purportedly expressed by the child, particularly,
during
the period 14 August 2010 to 10 September 2010,1 need to refer to the
sentiments expressed in the following judgments.
In
the German! case, supra, at 899D the learned Judge indicated as
follows:
"No
doubt the attitude of a child ought to be taken into account in
appropriate circumstances, especially where he is nearly
adult. But
here the child, ...... is still young, immature in mind,
impressionable and, notwithstanding his stubbornness, unable
to
decide for himself what is in his best interests. ... Moreover, to
attach such decisive importance to the child's own professed
intractable attitude as the learned Judge has done means that the
child is thereby being allowed to frustrate access orders recently
agreed upon by his parents and solemnly granted by the Court as being
in his best interests. That surely cannot be right. Generally,
the
correct judicial approach should be that the refusal or reluctance of
a young child to submit to access is not by itself a
reason for
disobeying an order of Court conferring such access.............. It
can be accepted that the child does not want to
submit to appellant's
access. That not infrequently happens where the parents are divorced
and especially where they continue to
bicker about access to the
child.".
[121]
In McCall v McCall
1994 (3) SA 201
(C) the learned Judge remarked as
follows at 207G
"On
the other hand it is clear.......... that, if the Court is satisfied
that the child has the necessary intellectual and
emotional maturity
to give in his expression of a preference a genuine and accurate
reflection of his feelings towards and relationship
with each of his
parents, in other words to make an informed and intelligent judgment,
weight should be given to his expressed
preference.".
[122]
In Vv V, supra, para 44 the learned Judge said the following in this
regard:
'
The wishes and feelings of the children are significant in respect of
their age and maturity. These children wish to stay with
their mother
with whom they have always lived. Their wishes must be taken into
account, but cannot be determinative of outcome,
partly because of
their young age, and also because they have become enmeshed in the
parents problems and have learnt to say what
they think is expected
of them. In order to survive emotionally I find these children, and
particularly N, have become skilled
in reiterating the views of the
views of their principal carer to date, namely the mother, and in
consequence that their views
are tainted by the influence of the
mother.".
[123]
In view of the aforegoing, there is in my view in the circumstances
no other option or solution, but to grant the relief
claimed in the
variation application.
[124]
I need, however, to say that I would not have considered this as an
option or solution had the Respondent adhered to any of
the orders
granted against her or at the very least the last order granted by me
so as to allow the child to experience the company
of his father and
to view and judge for himself the circumstances under which' his
father is living.
[125]
I am concerned about the influence under which the child was
subjected over a period of seven years and the effect it may
have on
the child and the relationship between him and his father. I would
have preferred a situation where the implementation
of a variation
order to be gradually phased in until a situation is reached in which
all the parties will be comfortable. The difficulty,
however, is
that, bearing in mind the Song history of this matter, the Respondent
may again find a way to frustrate compliance
with the order.
[126]
I can only express the hope that, particularly, the Respondent will
now come to her senses and that she and the Applicant
can come to
some arrangement which will ensure a healthy relationship between the
child, on the one hand, and his parents, on the
other and which may
not necessarily call for the implementation of the order I intend to
make.
[127]
As far as the contempt application is concerned, I am satisfied that
it has on the probabilities been shown that the Respondent
was indeed
in wilful contempt of not only the order of Mavundla J, but also all
the other five orders in question.
[128]
In so far as I have come to the conclusion that custody of the child
should be reversed, ii will at this stage serve no purpose
to make
any of the other orders claimed in the contempt application.
[129]
This brings me to the question of costs.
Costs
[130]
There is in my view no reason why in the variation application the
question of costs should not follow the result.
[131]
As far as the contempt application is concerned, the Respondent was,
as I already indicated, in contempt of, particularly,
the order of
Mavundla J, and the Applicant was, therefore, justified in having
lodged that application and to have prosecuted the
matter to the end.
The Respondent ought therefore to also pay the costs incurred by the
Applicant in that application.
Order
[132]
For the reasons set out in this judgment I make the following orders
-(a) in Case No. 23010/2004-
1.
THAT the Deed of Settlement concluded between the parties on 4 March
2008 and made an order of Court on 6 March 2008 be hereby
amended -
(a)
by the substitution for paragraph 2.3 of the following paragraph:
"2.3
The parental rights and responsibilities pertaining to the minor
child, N D, be granted to the parties jointly, subject
thereto that
the child's care be awarded to the plaintiff, and that his primary
residence be vested with the plaintiff";
(b)
by the substitution for paragraph 3 of the following paragraph:
3.
REASONABLE
ACCESS
The
defendant be granted rights of reasonable contact with the minor
child, which will include the right to remove the minor child
every
alternative weekend from Friday 17h00 to Sunday 17h00, as well as
every alternative short school holiday and half of every
long school
holiday, on the basis that Christmas would rotate between the
parties.";
(c)
by the substitution for paragraph 4 of the following paragraph:
4.
MAINTENANCE
FOR CHILD
The
defendant will pay maintenance in respect of the minor child to the
plaintiff in the amount of R1 000 per month from the first
day of the
month in which this order becomes operative and thereafter monthly in
advance on or before the 1th day of each succeeding
month.".
2.
THAT the order contained in paragraph 1 shall come into operation on
the first day of the first school holiday commencing after
the date
of this order.
3.
THAT the members of South African Police Service stationed at the
Sandton Police Station are prohibited from interfering with,
or
taking part in any manner whatsoever in, the execution of this order.
4.
THAT the Sheriff be authorised and directed -
(a)
to take the child from the Respondent and hand the child over to the
Applicant.
(b)
if necessary, to obtain the services of members of the South African
Police Service other than any member of the South African
Police
Service stationed at the Sandton Police Service, to assist the
Sheriff in handing over the child to the Applicant.
5.
THAT the principal of Grayston Preparatory at cnr Gillard &
North Streets, Sandown be hereby ordered to furnish the residential
address of the Respondent to the Sheriff in order to enable the
Sheriff to execute this order.
6.
THAT the Respondent be ordered to pay the costs incurred by the
Applicant, including the costs reserved on 24 February 2011 and
25
February 2011; and
(b)
in Case No. 5156172010 -
1.
THAT the Respondent be held to have been in wilful contempt of the
order granted by Mavundla J on 12 August 2010, but no further
orders
are made in respect thereof.
2.
THAT the Respondent be ordered to pay the Applicant's costs,
including the costs reserved on 12 August 2010;
(c)
in respect of both applications:-
THAT
the orders referred to in paragraphs (a) and (b) above -
(a)
be served on the Respondent at care of M B Mokoena Attorneys, 1002 10
th Floor, 130 Beatrix Street, Arcadia Centre, Cnr Beatrix
&
Vermeulen Street, Pretoria, and at care of the Principal, Grayston
Preparatory at cnr Gillard & North Streets, Sandown;
(b)
be conveyed, if possible or necessary, telephonically to the
Respondent by the Sheriff;
(c)
be served by the Sheriff on the Station Commissioner of the South
African Police Service of the Sandton Police Station;
(d)
be served by the Sheriff on the principal of Grayston Preparatory at
cnr- Gillard & North Streets, Sandown.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANT.:ADV ILSE VERMAAK-HAY
On
the instructions of: ANGENHOVEN PISTORIUS & PARTNERS INC
c/o
BERNHARD VAN DER HOVEN ATTORNEYS
Pare
Nouveau 225 Veale Street
Brooklyn
PRETORIA
Ref:
ABT van der Hoven/ER
Tel : (012) 452 4116
ON
BEHALF OF THE RESPONDENT IN PERSON
c/o
M B MOKOENA ATTORNEYS
1002-10
th Floor 130 Beatrix Street Arcadia Centre Cnr Beatrix &
Vermeulen Street
PRETORIA
Ref.: Divos/06MB-DUBA
Tel
No. 012 326 6714
or
c/o
The Principal Grayston Preparatory cnr Gillard & North Streets
SANDOWN
Tel
No. 011 884 1234
DATE
OF HEARING 28 March 2011
JUDGMENT
DELIVERED ON 20 April 2011